United States Court of Appeals, District of Columbia Circuit
February 9, 2016.
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
M. Rand argued the cause and filed the briefs for
petitioners. Peter J. Petesch and Megumi Sakae entered
A. Sheehy, Attorney, National Labor Relations Board, argued
the cause for respondent. With her on the brief were Richard
F. Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Usha Dheenan, Supervisory Attorney.
HENDERSON and ROGERS, Circuit Judges, and WILLIAMS, Senior
Circuit Judge. OPINION filed by Senior Circuit Judge
WILLIAMS. Opinion concurring in part and concurring in the
judgment filed by Circuit Judge HENDERSON. Opinion concurring
in part and concurring in the judgment filed by Circuit Judge
Senior Circuit Judge:
National Labor Relations Board determined that petitioners
HTH Corporation and various affiliates (collectively "
HTH" or the " company" ) committed a host of
severe and pervasive unfair labor practices, a finding that
HTH does not here dispute. HTH does, however, petition for
review of five extraordinary remedies imposed by the Board,
three of them adopted by the Board sua sponte and
two of them recommended by the administrative law judge but
then modified by the Board. The company petitions for review
of these new and modified remedies and the Board
cross-applies for enforcement of its Order. Because the
company failed to file a motion for reconsideration with the
Board, we lack jurisdiction to consider the company's
objections to all but two of the challenged remedies. As to
those two, we uphold one (notice-reading) and vacate the
other (attorney's fees).
* * *
company, which operates the Pacific Beach Hotel in Honolulu,
is no stranger to the Board or to the judicial system. Time
and time again, the Board and the courts have concluded that
the company violated the law in its dealings with the
International Longshore and Warehouse Union, Local 142. A
brief overview of the prior violations will provide context
for the imposition of extraordinary remedies in this case.
as early as 2002, the company unlawfully interfered with a
representation election, HTH Corp., 342 N.L.R.B.
372, 374 (2004), and then with an election held to replace
that election, Pacific Beach Corp., 344 N.L.R.B.
1160, 1163 (2005). The union prevailed in the latter and was
duly certified. There followed various efforts to derail the
union and two sets of unfair labor practice charges. The
first set led to a Board order, HTH Corp., 356
N.L.R.B. 1397 (2011), enforced, 693 F.3d 1051 (9th
Cir. 2012), and to a court injunction under § 10(j) of
the National Labor Relations Act, Norelli v. HTH
Corp., 699 F.Supp.2d 1176 (D. Haw. 2010), aff'd
sub nom. Frankl v. HTH Corp., 650 F.3d 1334
(9th Cir. 2011). The company violated that injunction,
leading to compensatory contempt citations against it and its
Regional Vice President, Robert Minicola. Frankl v. HTH
Corp., 832 F.Supp.2d 1179 (D. Haw. 2011).
second set of charges ultimately resulted in the
extraordinary remedies contested here. In September 2011 an
administrative law judge determined that the company had
violated the Act by disciplining and firing a union activist
named Rhandy Villanueva (who had been unlawfully fired once
before), unilaterally increasing housekeepers' workloads,
unreasonably withholding information from the union,
surveilling union activities, banning two union
representatives from the hotel and then announcing the ban to
employees, threatening to remove a union agent who was
distributing union literature from a public sidewalk, and
halting its matching contributions to employees' 401(k)
plans. HTH Corp., 2011 WL 4073681 (Sept. 13, 2011).
Several of these actions, including Villanueva's second
termination, were in violation of the § 10(j) injunction
and formed the basis of the district court's later
imposition of contempt sanctions. See Frankl, 832
F.Supp.2d at 1187-1203, 1206-13, 1216-17. The ALJ recommended
a set of remedies, only two of which are relevant for our
purposes: requirements of (1) notice-posting and (2)
ALJ's proposed notice-reading remedy required either the
company's CEO and its President, or Minicola (the
Regional Vice President), to read to employees a "
notice" drafted by the Board. In the " notice"
the officials are to say that " we" have violated
the National Labor Relations Act and the employees'
rights and to state 15 specific assurances in the form,
" We will" adhere to specified NLRA obligations and
remedy various breaches, or " We will not" violate
the Act in a wide range of specified ways.
company filed various exceptions to the ALJ's decision.
Only one is relevant here--an objection to the notice-reading
remedy on the ground that extraordinary remedies were
unwarranted because there had been no showing that
traditional remedies were insufficient to cure the
company's unfair labor practices. The company didn't
object to the ALJ's notice-posting remedy.
October 2014 the Board issued the Order on appeal here.
HTH Corp., 361 N.L.R.B. No. 65, 2014 WL 5426174
(Oct. 24, 2014). The Board agreed with the ALJ that the
company had committed each of the alleged violations but
found the ALJ's recommended remedies insufficient.
Accordingly, it sua sponte ramped up the
notice-posting and notice-reading requirements and imposed
three additional extraordinary remedies.
not detail the Board's expansions of the notice-posting
requirement as (for reasons soon to be developed) the
company's objections to them are barred by § 10(e)
of the Act. As to the notice-reading remedy, the Board
decreased the burden in one respect and increased it in
others. It mitigated the order by allowing the company to
have a Board agent read the notice rather than requiring that
Minicola or the CEO and President do so. It toughened the
remedy by (1) removing the option of having the CEO and
President read the notice (i.e., if a company manager is
going to fulfill this obligation, it must be Minicola); (2)
requiring that an Explanation of Rights be read at the
notice-reading event; (3) requiring that all company
supervisors and managers attend the reading; and (4)
specifying that a union representative be allowed to be
Board remedies, not rooted in the ALJ's report, consisted
of (1) awarding litigation expenses to the General Counsel
and the union; (2) awarding bargaining and other expenses to
the union; and (3) subjecting the company for three years to
Board " visitation" throughout company premises and
files to assess compliance with the Board's more
conventional orders. The Board tripled the length of the
" notice" to be read aloud by including, among
other things, assurances that " We will" implement
each of the Board's remedial requirements. (The company
points to a fourth new remedy--requiring publication of the
notice and the Explanation of Rights in two local
publications--but we think the publication requirement is
classified more appropriately as an expansion of the
notice-posting remedy. The classification has no effect on
the preclusion of the company's challenge, as it failed
to object on this score to the ALJ's order or to seek
reconsideration of the Board's.)
members of the Board, Members Miscimarra and Johnson,
company didn't file a motion for reconsideration with the
Board, opting instead to go directly to this court. On appeal
the company challenges only the three new remedies added by
the Board and the expansions of the ALJ's notice-posting
and notice-reading remedies.
* * *
jurisdiction to consider most of the company's objections
because they were never raised before the Board. Section
10(e) of the Act provides that " [n]o objection that has
not been urged before the Board . . . shall be considered by
the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary
circumstances." 29 U.S.C. § 160(e). See also
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
665-66, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) (the §
10(e) bar is jurisdictional). The company's failure to
file a motion for reconsideration bars all its challenges
except, for reasons we'll explain, its objections to the
Board's award of litigation expenses and aspects of its
challenge to the notice-reading remedy.
company raises several arguments in an attempt to salvage its
barred claims. First, the company argues that the dissents by
Members Miscimarra and Johnson offered the Board an
opportunity to confront objections to its Order, and that the
majority's rejection of the dissenters' points
suggests that moving for reconsideration would have been
futile. But a party may not rely on arguments raised in a
dissent or on a discussion of the relevant issues by the
majority to overcome the § 10(e) bar; the Act requires
the party to raise its challenges itself. See
Contractors' Labor Pool, Inc. v. NLRB, 323 F.3d
1051, 1061, 355 U.S.App.D.C. 292 (D.C. Cir. 2003); Local
900, Int'l Union of Elec., Radio and Mach. Workers v.
NLRB, 727 F.2d 1184, 1191-92, 234 U.S.App.D.C. 85 (D.C.
the company argues that the challenged remedies are patently
ultra vires and meet § 10(e)'s "
extraordinary circumstances" exception. The company is
right that we could review a remedy that is patently
ultra vires. Alwin Mfg. Co. v. NLRB, 192
F.3d 133, 143 n.13, 338 U.S.App.D.C. 134 (D.C. Cir. 1999).
But the Board's remedial authority is broad, see, e.g.,
United Food & Commercial Workers Union Local 204 v.
NLRB, 447 F.3d 821, 827, 371 U.S.App.D.C. 46 (D.C. Cir.
2006), and that authority was not patently exceeded under our
precedents, particularly considering the company's
history of severe and pervasive unfair labor practices. Nor
does the mere fact that the Board acted sua sponte
constitute an " extraordinary circumstance" ; the
company was required to file a motion for reconsideration to
preserve its challenges. See NLRB v. FLRA, 2 F.3d
1190, 1195, 303 U.S.App.D.C. 221 (D.C. Cir. 1993).
the company argues that its exceptions to the ALJ's
decision sufficed to preserve its challenges even to remedies
or requirements that the Board imposed sua sponte.
But an exception, no matter how broadly formulated, cannot
preserve an objection to something that the ALJ never
imposed. See NLRB v. Sambo's Rest., Inc., 641
F.2d 794, 796 (9th Cir. 1981); NLRB v. St. Regis Paper
Co., 674 F.2d 104, 108 n.4 (1st Cir. 1982). Cf.
Quazite Div. of Morrison Molded Fiberglass Co. v.
NLRB, 87 F.3d 493, 497, 318 U.S.App.D.C. 259 (D.C. Cir.
1996) (" A categorical denial does not place the Board
on notice that its particular choice of remedy is under
company did, however, argue before the Board that the
notice-reading remedy was extraordinary and that
extraordinary remedies were unwarranted because there had
been no showing that traditional remedies were insufficient
to address the unfair labor practices. Although the objection
did not specify the attributes of the notice-reading remedy
that called for special judicial concern (see below), we have
held that " when the issues implicated by an imprecisely
drafted objection are made evident by the context in which it
is raised," § 10(e) is not a bar. Consol.
Freightways v. NLRB, 669 F.2d 790, 794, 215 U.S.App.D.C.
404 (D.C. Cir. 1981). Indeed, the Board does not dispute that
the notice-reading remedy is properly before us.
of course, the Board changed the remedy in various ways, most
importantly by giving the company the option of having a
Board agent read the notice. But the Board does not deny that
even after its changes, the remedy remained "
extraordinary" and thus subject to the objection that
it's unwarranted so long as traditional remedies suffice.
See In Re Federated Logistics & Operations,
340 N.L.R.B. 255, 256 (2003) (acknowledging that
notice-reading with the Board-agent option is an
extraordinary remedy); First Legal Support Servs.,
LLC, 342 N.L.R.B. 350, 350 n.6 (2004) (explaining that
extraordinary remedies cannot be granted unless traditional
remedies are insufficient). Although the option to have a
Board employee read the notice alters matters, as we shall
see when we address the merits, the order as modified poses
objections similar in character to those posed by the ALJ
recommendation. The Board's additions, however,
seem distinctive, and insofar as they may call for anything
more than generalized analysis of the adequacy of traditional
remedies, HTH should have sought reconsideration if it wished
to challenge them in court.
Judge Henderson's view, " we are without
jurisdiction to consider the validity vel non of the
Board-agent option." Henderson Op. 3. Assuming that to
be true, the company's general challenge to the
notice-reading remedy as an extraordinary remedy is
not barred, and it would make little sense to
consider that challenge without regard to the Board's
amelioration of the remedy (from HTH's viewpoint) by
giving HTH another option. Taken to its extreme, such
hyper-refinement of party obligations under § 10(e)
would mean that any change made by the Board sua
sponte, however trivial, would require a motion for
reconsideration (or else require the reviewing court to
ignore the change). We decline to adopt this approach.
other issue is also open to review--the Board's award of
litigation expenses. We have explained that filing a motion
for reconsideration is patently futile where the agency had
previously rejected the very argument made by petitioner.
FLRA, 2 F.3d at 1196; cf. W & M Properties, Inc.
v. NLRB, 514 F.3d 1341, 1346, 379 U.S.App.D.C. 432 (D.C.
Cir. 2008). The patent futility of a reconsideration motion
excuses the failure to object, at least where the Board acts
sua sponte. See FLRA, 2 F.3d at 1196. Here,
the Board rejected the company's argument with respect to
litigation expenses--that the Board has no inherent authority
to award such expenses--three years before its decision in
this case. See Camelot Terrace, 357 N.L.R.B. 1934,
1937-39 (2011). The Board had also awarded litigation
expenses based in part on its asserted inherent authority in
earlier cases. See, e.g., Teamsters Local Union No.
122, 334 N.L.R.B. 1190, 1193 (2001); Alwin Mfg.
Co., 326 N.L.R.B. 646, 647 & n.6 (1998),
enforced, 192 F.3d 133, 338 U.S.App.D.C. 134 (D.C.
Cir. 1999); Lake Holiday Manor, 325 N.L.R.B. 469,
469 & n.5 (1998). In light of this precedent, asking the
Board to reconsider its sua sponte decision to award
litigation expenses in this case would have been patently
futile--and the failure to do so is excused under §
10(e)'s " extraordinary circumstances"
exception. See FLRA, 2 F.3d at 1196.
cases generally do not distinguish between attorney's
fees and other litigation costs for purposes of applying the
American rule. See, e.g., Nepera Chem., Inc. v. Sea-Land
Serv., Inc., 794 F.2d 688, 696 n.56, 253 U.S.App.D.C.
394 (D.C. Cir. 1986) (" The reasons underlying the
American Rule lead to the conclusion normally that litigation
expenses other than attorneys' fees are similarly
nonrecoverable." ). See also Fox v. Vice, 563
U.S. 826, 131 S.Ct. 2205, 2213, 180 L.Ed.2d 45 (2011) ("
Our legal system generally requires each party to bear his
own litigation expenses, including attorney's
fees, regardless whether he wins or loses."
(emphasis added)); Int'l Union of Elec., Radio &
Mach. Workers v. NLRB, 502 F.2d 349, 356 n.22, 163
U.S.App.D.C. 347 (D.C. Cir. 1974) (" The American rule
generally disfavors the award of attorney fees and other
litigation expenses except where specifically provided
for by statute or contract." (emphasis added)). Thus, as
the parties have generally done in this case, we treat them
as a package.
* * *
now to the merits of the company's two preserved
challenges--the mandated notice-reading first. Recall that
the ALJ recommended an order requiring specified high-level
company officials to read out the notice acknowledging the
company's violations and committing not to indulge in
such behavior in the future. The Board, apart from adding
elements that § 10(e) bars us from considering, narrowed
the choice of persons to one, Minicola, but then broadened