Rachel Lerner
Wed, 08/24/2022
On August 11, 2022, the Ninth Circuit Court of Appeals ruled in NLRB v. Ampersand Publishing, LLC, Case No. 21-71060, that the National Labor Relations Board (NLRB) can order an employer to reimburse legal fees incurred by a union during the collective bargaining process.
The employees at Ampersand Publishing voted to unionize and be represented by the Graphic Communications Conference, International Brotherhood of Teamsters, in September 2006. Between November 2007 and April 2009, Ampersand and the Union met several times to negotiate a collective bargaining agreement without success. After the Union filed unfair labor practice charges, the NLRB found that Ampersand engaged multiple unfair labor practices during the bargaining process. In their findings, the Board found that Ampersand engaged in unusually aggravated misconduct and ordered Ampersand to reimburse the Union for costs and expenses incurred during the bargaining process.
When the parties could not agree on the total expenses, an Administrative Law Judge, followed by the Board, granted a specific amount of costs and expenses that the union spent in collective bargaining. The NLRB then applied to the Court for enforcement of the compliance order.
Under D.C. Circuit precedent, the NLRB lacks the power to order reimbursement for litigation costs. See HTT Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016). However, a few months after deciding HTT Corp, the D.C. Circuit found that although the NLRB cannot order reimbursement for litigation costs, it can award negotiation or bargaining expenses. See Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085 (D.C. Cir. 2016). The Ninth Circuit concluded that, because Ampersand committed unfair labor practices by refusing to bargain with the Union in good faith, the award of costs incurred in bargaining was a reasonable remedy and ordered the enforcement of the compliance order.
MSE represents labor unions and their members. For more information, visit https://www.mselaborlaw.com/practice-areas/labor-unions. If you believe your employer has violated your rights under the NLRA, contact MSE at info@mselaborlaw.com.
