In another setback for the NLRB, a federal appeals court ruled recently that the NLRB lacks the authority to impose adverse attorneys’ fees awards against employers in Board proceedings.  HTH Corporation v. NLRB  The case involved a serious and serial violator of the NLRA, according to the Board and multiple courts. In the face of a recent wave of additional violations of the Act and a standing court-ordered injunction, the Board imposed multiple remedial penalties against the employer, including an order that the employer reimburse the Board and the union for all litigation expenses associated with the latest dispute. The Board asserted that it possesses an “inherent” right to award litigation expenses as a “deterrent” to future violations of the NLRA.  Noting that no federal agency possesses “inherent” rights, the D.C. Circuit analyzed Section 10(c) of the NLRA to see if that provision establishes a “statutorily implicit” right for the Board to impose litigation expenses. The Court concluded that Section 10(c) confers no such implied right on the NLRB.

In an era of seemingly ever-expanding Board jurisdiction and authority, this case is a pleasant reminder that the Board is not above the law. It also removes from the Board an extremely powerful tool in its enforcement arsenal, so we might expect the Board to try to get the attention of the Supreme Court on this case.