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NLRB Award of Attorneys’ Fees Blocked by D.C. Cir.

In recent ruling, the DC Circuit held that the National Labor Relations Board had no authority to order a Hawaii hotel to reimburse the NLRB and a labor union for the litigation expenses in a board proceeding.

The hotel company did not dispute the board’s finding that it had committed severe and pervasive unfair labor practices, but it challenged the board’s selection of remedies.

In a demonstration of the importance of preserving issues for appeal, the court held that the employer failed to preserve several issues for appellate court review, but the court considered its arguments that the board improperly ordered a reading of its remedial notice to employees and exceeded its authority in ordering the company to pay attorneys’ fees to the NLRB and the union.

The court said that since the NLRB gave HTH the option of having the notice read to its workers by an NLRB employee, rather an individual representative of the company, the board’s remedial order was within its discretion.

However, the court disagreed with the NLRB’s award of attorneys’ fees. Since the NLRB acts only as a “creature of statute” it could not award attorney’s fees unless “some provision or provisions of the Act explicitly or implicitly grant it power to do so.” The U.S. Supreme Court has considered the bad-faith exception to the usual rule against attorneys’ fees awards to be a punitive measure like a fine for civil contempt, but the applicable statute does not grant the NLRB “punitive powers,” and therefore the attorney’s fees award exceeded its powers.

The case can be accessed at this link: https://scholar.google.com/scholar_case?case=3932628669638443270&q=hth+corp+v.+nlrb&hl=en&as_sdt=2006

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