43 F.4th 1233
9th Cir.2022Background
- Ampersand Publishing (Santa Barbara News-Press) employees voted to unionize in 2006; Ampersand’s election objections were overruled and the union became the exclusive bargaining agent.
- From Nov. 2007 to Apr. 2009 Ampersand and the Union negotiated; the Union used outside counsel (Bush Gottlieb) to advise and participate in bargaining sessions.
- The NLRB consolidated unfair labor practice charges against Ampersand; an ALJ and then the Board found Ampersand committed multiple unfair labor practices, including bad-faith bargaining and wrongful discharges.
- Because the misconduct was unusually aggravated, the Board ordered Ampersand to reimburse the Union’s costs and expenses incurred in collective bargaining, including certain legal fees.
- Ampersand challenged the reimbursement as beyond the Board’s authority (relying on D.C. Circuit decisions about attorney’s fees); after compliance proceedings the Board sought enforcement in the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NLRB may order reimbursement of a union’s legal fees incurred during collective bargaining | NLRB/Union: Board has broad remedial authority under § 10(c) to award bargaining expenses to restore status quo ante | Ampersand: D.C. Circuit precedent forbids the Board from awarding attorney’s fees (as litigation expenses) | Court: NLRB may order reimbursement when fees are for bargaining (compensatory), not litigation (punitive) |
| Whether the disputed Bush Gottlieb fees were litigation expenses (impermissible) or bargaining expenses (permissible) | NLRB/Union: Counsel performed discrete bargaining advisory work; matter codes separate bargaining from litigation tasks | Ampersand: Simultaneous NLRB proceedings render counsel’s work litigation-related, so fees are litigation expenses | Court: Fees were properly limited to counsel’s bargaining-related work and thus are bargaining expenses the Board could order reimbursed |
Key Cases Cited
- Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085 (D.C. Cir. 2016) (distinguishes bargaining expenses from impermissible litigation costs; upholds award of negotiation expenses)
- HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016) (Board lacks authority to award litigation attorney’s fees as a remedy)
- Gibson Greetings, Inc. v. NLRB, 53 F.3d 385 (D.C. Cir. 1995) (Board may award fees if lawsuit filing/maintenance itself was an unfair labor practice)
- Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (Board may order reimbursement of fees/expenses when a violation is found and remedy requires it)
- Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 (1943) (recognizes broad remedial authority of the Board to effectuate the Act)
- Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304 (9th Cir. 1996) (Board has broad discretion in selecting remedies for unfair labor practices)
- Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997) (discusses parties’ participation in NLRB proceedings and limits on charging-party role)
- NLRB v. Noel Canning, 573 U.S. 513 (2014) (addresses Board composition and validity of prior Board decisions)