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NLRB Can Order Employer to Reimburse Union for Legal Fees Incurred During Bargaining: Ninth Circuit
Practical Law Legal Update w-036-6150 (Approx. 4 pages)
NLRB Can Order Employer to Reimburse Union for Legal Fees Incurred During Bargaining: Ninth Circuit
by Practical Law Labor & Employment
| Published on 16 Aug 2022 • USA (National/Federal) |
In NLRB v. Ampersand Publishing, LLC, the Ninth Circuit held that the National Labor Relations Board (NLRB) may order an employer to reimburse a union for legal fees incurred by the union during the collective bargaining process.
On August 11, 2022, in NLRB v. Ampersand Publishing, LLC, the Ninth Circuit held that the NLRB may issue a remedial order requiring an employer to reimburse a union for legal fees incurred during the collective bargaining process. Specifically, the court:
- Reasoned that an award of bargaining expenses, including the union's associated legal fees, is primarily a compensatory remedy aimed at restoring the economic status quo that would have existed but for the employer's bad-faith bargaining and other unfair labor practices, and therefore is precisely the type of remedy that courts have upheld as within the NLRB's broad remedial authority under Section 10(c) of the NLRA (29 U.S.C. §160(c); see Ampersand Publishing, LLC, 359 N.L.R.B. 1110 (2013)).
- Distinguished cases cited by the employer in which the DC Circuit held that the NLRB lacked the statutory or inherent authority to order reimbursement of union litigation costs, noting that litigation costs and bargaining expenses are distinct categories of expenses and the cited cases are limited specifically to the litigation context (see Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1089-90 (D.C. Cir. 2016); HTH Corp. v. NLRB, 823 F.3d 668, 678-81 (D.C. Cir. 2016)).
In Ampersand Publishing, the Ninth Circuit identifies circumstances under which it will enforce NLRB orders requiring an employer to reimburse a union for legal fees. It is unclear whether the DC Circuit or other circuit courts of appeals would similarly analyze NLRB orders to reimburse union legal fees. However, the decision underscores the potential breadth of the NLRB's Section 10(c) remedial powers, particularly where an employer has engaged in aggravated misconduct.