Nat'l Labor Relations Bd. v. Ampersand Publ'g, LLC
| Decision Date | 11 August 2022 |
| Docket Number | 21-71060 |
| Citation | 43 F.4th 1233 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMPERSAND PUBLISHING, LLC, dba Santa Barbara News-Press, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gregoire Sauter (argued), Attorney; Julie Broido, Supervisory Attorney; David Habenstreit, Assistant General Counsel; Ruth E. Burdick, Deputy Associate General Counsel; Peter Sung Ohr, Deputy General Counsel; Jennifer A. Abruzzo, General Counsel; National Labor Relations Board, Washington, D.C.; for Petitioner.
Amber Henry (argued) and Christopher Frost, Eisner LLP, Beverly Hills, California, for Respondent.
Before: Richard A. Paez, D. Brooks Smith,* and Bridget S. Bade, Circuit Judges.
This appeal presents the question of whether the National Labor Relations Board ("NLRB" or "Board") may order an employer to reimburse a union for legal fees incurred during the contract bargaining process.1 We hold that it may, and we therefore grant the NLRB's petition for enforcement of its compliance order.2
To provide context for the issue we decide here, a brief overview of the NLRB administrative process is in order. The National Labor Relations Act ("NLRA" or "Act") grants employees the right to bargain collectively through representatives of their own choosing. See 29 U.S.C. § 157. A common path to forming a union is through the union election process. During the election process, any party can file objections to conduct it believes could interfere with employee free choice in the election, and the NLRB reviews and adjudicates those objections. See 29 C.F.R. § 102.69(c) (2022). If a majority of the employees vote in favor of the union and the results of the election are certified by the NLRB, the union becomes the exclusive bargaining agent for the employees in the unit and is entitled to recognition by the employer. See id. § 102.69(h). At that point, the employer is required to meet with the union to bargain in good faith over the conditions of employment. See 29 U.S.C. § 158(a)(5). Failure to do so is considered an unfair labor practice. See id. ; see also Frankl v. HTH Corp. , 650 F.3d 1334, 1358 (9th Cir. 2011) (citing Regency Serv. Carts, Inc. , 345 N.L.R.B. 671, 671 (2005) ).
Any person may file a charge with the NLRB alleging that a person or organization has engaged in an unfair labor practice. See 29 C.F.R. § 101.2, 102.9. The NLRB is empowered to prevent such practices. See 29 U.S.C. § 160(a). Charges are filed with the NLRB Regional Director for the region in which the alleged violation occurred, see 29 C.F.R. § 101.2, and that official is responsible for investigating to determine if there is sufficient evidence to substantiate a charge, see id. § 101.4. If the Regional Director finds that a charge has merit, she initiates formal action by issuing a complaint. See id. § 101.8. Complaints are adjudicated in a hearing before an Administrative Law Judge ("ALJ"), see id. § 101.10(a), whose decision may be appealed to the Board, see id. § 101.12(a).
The General Counsel for the NLRB ("General Counsel") prosecutes the government's case. See 29 U.S.C. § 153(d). The charging party may participate in the proceedings in a variety of ways, including by calling witnesses, introducing evidence, submitting briefs, and engaging in oral argument, but it is not required to do so. See 29 C.F.R. § 101.10(a) ; Unbelievable, Inc. v. NLRB , 118 F.3d 795, 803 (D.C. Cir. 1997). Agency approval is required to withdraw the complaint. See 29 C.F.R. §§ 102.9, 102.18. Any settlement is also subject to agency approval and may be entered over the objections of the charging party. See id. § 101.9.
Ampersand does business as the Santa Barbara News-Press , a daily newspaper. In September 2006, Ampersand's newsroom employees voted to be represented by the Graphic Communications Conference, International Brotherhood of Teamsters ("Union"). Ampersand filed objections to the election process, but the results were ultimately certified by the Board.
Between November 2007 and April 2009, Ampersand and the Union met several times to negotiate a collective bargaining agreement. Concurrently, the Union filed various unfair labor practice charges against Ampersand stemming from the company's actions during the bargaining process. The Regional Director for NLRB Region 31 consolidated these charges into the underlying complaint in this case. Following a hearing, an ALJ held that Ampersand had violated sections 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. The ALJ identified a number of unfair labor practices, including the paper's discontinuance of its merit pay raise program; its transfer of bargaining unit work to non-union temporary employees without notice; its discharge of two employees, Dennis Moran and Richard Mineards; and its bad-faith bargaining with the Union. See Ampersand Publ'g, LLC (Ampersand I ), 358 N.L.R.B. 1415, 1501–02 (2012). The ALJ's findings were adopted in full by a three-member panel of the Board. See Ampersand Publ'g, LLC (Ampersand II ), 362 N.L.R.B. 252, 252 (2015).3 Because the Board found that Ampersand engaged in unusually aggravated misconduct sufficient to warrant more than a traditional remedy, it ordered Ampersand to reimburse the Union for the costs and expenses the Union incurred during the collective bargaining sessions. See Ampersand I , 358 N.L.R.B. at 1417 ; Ampersand II , 362 N.L.R.B. at 252–53 (). On appeal, the D.C. Circuit upheld the Board's findings and enforced its order in full. See Ampersand Publ'g, LLC v. NLRB , No. 15-1074, 2017 WL 1314946, at *4 (D.C. Cir. Mar. 3, 2017) (per curiam).
The parties could not reach an agreement on the total amount Ampersand should be required to pay in remedies, including the amount of reimbursement due to the Union. In July 2018, the Regional Director for NLRB Region 27 issued a compliance specification detailing her calculations of how much Ampersand owed and setting a compliance hearing before an ALJ.4 After Ampersand responded to the specification, the General Counsel filed a motion for partial summary judgment, alleging that Ampersand's answer was insufficiently specific under the NLRB's rules and sought to relitigate matters already decided in the underlying case. The Board granted the motion. It remanded to the ALJ to decide the two remaining issues: the costs and expenses incurred by the Union during bargaining and the net backpay due to Moran and Mineards. After a hearing, the ALJ granted the full amount claimed in an amended specification. Ampersand filed exceptions to this decision, and a three-member panel of the Board affirmed. The NLRB subsequently applied to this court for enforcement of its compliance order.
We have jurisdiction under 29 U.S.C. § 160(e). The NLRB's discretion in selecting remedies is "exceedingly broad," and we will enforce a remedy "unless it represents a clear abuse of discretion." NLRB v. C.E. Wylie Constr. Co. , 934 F.2d 234, 236 (9th Cir. 1991) (internal quotation marks and citation omitted). "Such an abuse of discretion is present if it is shown that the order is a patent attempt to achieve ends other than those that can be fairly said to effectuate the policies of the Act." Id. (internal quotation marks and citation omitted). "The function of the remedy in unfair labor cases is to restore the situation, as nearly as possible, to that which would have occurred but for the violation." Kallmann v. NLRB , 640 F.2d 1094, 1103 (9th Cir. 1981). We resolve any doubts about the remedy "against the perpetrator of the unfair labor practice." Sever v. NLRB , 231 F.3d 1156, 1165 (9th Cir. 2000).
The Union incurred legal fees for consultations with its outside counsel, the Bush Gottlieb law firm ("Bush Gottlieb"), during contract negotiations. The Regional Director included those fees in the compliance order as part of the bargaining expenses for which Ampersand was required to reimburse the Union. Ampersand objects, arguing that D.C. Circuit precedent has established that the NLRB lacks the power to order the reimbursement of legal fees.
Ampersand misreads the D.C. Circuit's opinions. It is true that the cases Ampersand cites did reject portions of NLRB orders that awarded attorney's fees to unions, holding that the Board lacked either statutory or inherent authority to shift these costs to an employer. See Camelot Terrace, Inc. v. NLRB , 824 F.3d 1085, 1089–90 (D.C. Cir. 2016) ; HTH Corp. v. NLRB , 823 F.3d 668, 678–81 (D.C. Cir. 2016). These holdings, however, were specifically limited to the context of litigation, and they do not bar the award at issue here. See Camelot Terrace , 824 F.3d at 1094.
In HTH Corp. , the NLRB determined that HTH Corporation, which operated a hotel in Honolulu, had committed "severe and pervasive unfair labor practices" in its dealing with the International Longshore and Warehouse Union, Local 142. 823 F.3d at 671. The Board imposed a number of "extraordinary remedies" on the company, including awarding litigation expenses to the General Counsel and the union. Id. at 672. HTH challenged this remedy, arguing that it exceeded the NLRB's power under the NLRA. See id. at 674. Although it acknowledged that, under D.C. Circuit law, it lacked statutory authority to seek recovery of litigation costs, the Board argued that its remedy was justified by its "inherent authority to control and maintain the integrity of its own proceedings through an application of the bad-faith exception to the American Rule."5 Id. at 678–79. The D.C. Circuit rejected the Board's argument, noting that the NLRB is a "creature of statute" and "has only those powers conferred upon it by Congress." Id. Because no provision of the Act "explicitly or implicitly" grants the NLRB the power to...
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