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HTH Corp. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 20, 2016


         Argued February 9, 2016.

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

         Richard M. Rand argued the cause and filed the briefs for petitioners. Peter J. Petesch and Megumi Sakae entered appearances.

         Barbara 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.

         Before: 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 ROGERS.


         Williams, Senior Circuit Judge:

         The 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).

         * * *

         The 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.

         Starting 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).

         The 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) notice-reading.

         The 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.

         The 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.

         In 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.

         We need 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 present.

         The new 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.)

         Two members of the Board, Members Miscimarra and Johnson, dissented.

         The 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.

         * * *

         We lack 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.

         The 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. Cir. 1984).

         Next, 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).

         Finally, 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 attack[.]" ).

         The 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.

         Here, 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.

         In 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.

         One 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.

          The 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.

         * * *

         We turn 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 ...

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