Board Awards Unprecedented Remedies And Signals It Could Go Further

The National Labor Relations Board's decision in HTH Corporation, 361 NLRB No. 65 (2014), re-affirms the Board's intent to impose aggressive, unprecedented remedies. In this case, the Board openly signaled that it has not yet reached the outer limits of its authority, and is prepared to go even further.

All five Board members denounced the employer, operator of a hotel in Honolulu, finding a repeated failure to comply with Board and court orders over ten years. Those orders stemmed from a litany of unfair labor practice charges, including bad faith bargaining, retaliation against employees who exercised their Section 7 rights, and maintaining an unlawful solicitation policy. Based on the Board's "inherent power" to control its proceedings, the three-member Democrat-appointed majority ordered the employer to pay the litigation expenses of the NLRB's General Counsel's Office and the union. The Board also ordered the employer to reimburse the union's bargaining costs for willfully defying the Board and the National Labor Relations Act. The majority said that these remedies were "clearly compensatory" in nature (rather than punitive) and were ordered to preserve the integrity of Board processes, serve as a deterrent to violations of Board Orders, and protect the rights of parties. The majority also signaled, sua sponte, that it may order front pay in lieu of reinstatement under appropriate circumstances.

Members Miscimarra and Johnson vigorously dissented from the majority's conclusion that the Board has authority to order fee-shifting. Miscimarra discussed extensively the limits of the Board's remedial authority, which he does not believe includes authority to order fee shifting or front pay (neither of which was requested or briefed by the parties). He argued that regular awards of litigation costs and front pay would "substantially alter the character of NLRB litigation, and would disrupt the 'balancing [of] competing interests of labor and management,' which is the province of Congress and not the Board." Member Miscimarra concluded that the NLRA does not authorize fee shifting and noted that the D.C. Circuit, in Unbelievable, Inc. v. NLRB (118 F.3d 795, 806 (D.C. Cir. 1997), "squarely held that the Board cannot impose fee-shifting as a remedy for unfair labor practices," because the Board lacks statutory authority to do so. Fee...