HTH Corp. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 9, 2016 Decided May 20, 2016

No. 14-1222

HTH CORPORATION, ET AL.,
PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with 14-1283

On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board

Richard M. Rand argued the cause and filed the briefs for
petitioners. Peter J. Petesch and Megumi Sakae entered
appearances.

Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, and Usha Dheenan, Supervisory
Attorney.
 2

Before: HENDERSON and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Opinion concurring in part and concurring in the
judgment filed by Circuit Judge HENDERSON.

Opinion concurring in part and concurring in the
judgment filed by Circuit Judge ROGERS.

WILLIAMS, Senior Circuit Judge: The National Labor
Relations Board determined that petitioners HTH Corporation
and various affiliates (collectively “HTH” or the “company”)
committed a host of severe and pervasive unfair labor
practices, a finding that HTH does not here dispute. HTH
does, however, petition for review of five extraordinary
remedies imposed by the Board, three of them adopted by the
Board sua sponte and two of them recommended by the
administrative law judge but then modified by the Board. The
company petitions for review of these new and modified
remedies and the Board cross-applies for enforcement of its
Order. Because the company failed to file a motion for
reconsideration with the Board, we lack jurisdiction to
consider the company’s objections to all but two of the
challenged remedies. As to those two, we uphold one (notice-
reading) and vacate the other (attorney’s fees).
 3

* * *

The company, which operates the Pacific Beach Hotel in
Honolulu, is no stranger to the Board or to the judicial system.
Time and time again, the Board and the courts have concluded
that the company violated the law in its dealings with the
International Longshore and Warehouse Union, Local 142. A
brief overview of the prior violations will provide context for
the imposition of extraordinary remedies in this case.

Starting as early as 2002, the company unlawfully
interfered with a representation election, HTH Corp., 342
N.L.R.B. 372, 374 (2004), and then with an election held to
replace that election, Pacific Beach Corp., 344 N.L.R.B. 1160,
1163 (2005). The union prevailed in the latter and was duly
certified. There followed various efforts to derail the union
and two sets of unfair labor practice charges. The first set led
to a Board order, HTH Corp., 356 N.L.R.B. 1397 (2011),
enforced, 693 F.3d 1051 (9th Cir. 2012), and to a court
injunction under § 10(j) of the National Labor Relations Act,
Norelli v. HTH Corp., 699 F. Supp. 2d 1176 (D. Haw. 2010),
aff’d sub nom. Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir.
2011). The company violated that injunction, leading to
compensatory contempt citations against it and its Regional
Vice President, Robert Minicola. Frankl v. HTH Corp., 832 F.
Supp. 2d 1179 (D. Haw. 2011).

The second set of charges ultimately resulted in the
extraordinary remedies contested here. In September 2011 an
administrative law judge determined that the company had
violated the Act by disciplining and firing a union activist
named Rhandy Villanueva (who had been unlawfully fired
once before), unilaterally increasing housekeepers’ workloads,
unreasonably withholding information from the union,
surveilling union activities, banning two union representatives
from the hotel and then announcing the ban to employees,
 4

threatening to remove a union agent who was distributing
union literature from a public sidewalk, and halting its
matching contributions to employees’ 401(k) plans. HTH
Corp., 2011 WL 4073681 (Sept. 13, 2011). Several of these
actions, including Villanueva’s second termination, were in
violation of the § 10(j) injunction and formed the basis of the
district court’s later imposition of contempt sanctions. See
Frankl, 832 F. Supp. 2d at 1187-1203, 1206-13, 1216-17. The
ALJ recommended a set of remedies, only two of which are
relevant for our purposes: requirements of (1) notice-posting
and (2) notice-reading.

The ALJ’s proposed notice-reading remedy required
either the company’s CEO and its President, or Minicola (the
Regional Vice President), to read to employees a “notice”
drafted by the Board. In the “notice” the officials are to say
that “we” have violated the National Labor Relations Act and
the employees’ rights and to state 15 specific assurances in the
form, “We will” adhere to specified NLRA obligations and
remedy various breaches, or “We will not” violate the Act in a
wide range of specified ways.

The company filed various exceptions to the ALJ’s
decision. Only one is relevant here—an objection to the
notice-reading remedy on the ground that extraordinary
remedies were unwarranted because there had been no
showing that traditional remedies were insufficient to cure the
company’s unfair labor practices. The company didn’t object
to the ALJ’s notice-posting remedy.

In October 2014 the Board issued the Order on appeal
here. HTH Corp., 361 N.L.R.B. No. 65, 2014 WL 5426174
(Oct. 24, 2014). The Board agreed with the ALJ that the
company had committed each of the alleged violations but
found the ALJ’s recommended remedies insufficient.
Accordingly, it sua sponte ramped up the notice-posting and
 5

notice-reading requirements and imposed three additional
extraordinary remedies.

We need not detail the Board’s expansions of the notice-
posting requirement as (for reasons soon to be developed) the
company’s objections to them are barred by § 10(e) of the Act.
As to the notice-reading remedy, the Board decreased the
burden in one respect and increased it in others. It mitigated
the order by allowing the company to have a Board agent read
the notice rather than requiring that Minicola or the CEO and
President do so. It toughened the remedy by (1) removing the
option of having the CEO and President read the notice (i.e., if
a company manager is going to fulfill this obligation, it must
be Minicola); (2) requiring that an Explanation of Rights be
read at the notice-reading event; (3) requiring that all company
supervisors and managers attend the reading; and (4)
specifying that a union representative be allowed to be present.

The new Board remedies, not rooted in the ALJ’s report,
consisted of (1) awarding litigation expenses to the General
Counsel and the union; (2) awarding bargaining and other
expenses to the union; and (3) subjecting the company for
three years to Board “visitation” throughout company
premises and files to assess compliance with the Board’s more
conventional orders. The Board tripled the length of the
“notice” to be read aloud by including, among other things,
assurances that “We will” implement each of the Board’s
remedial requirements. (The company points to a fourth new
remedy—requiring publication of the notice and the
Explanation of Rights in two local publications—but we think
the publication requirement is classified more appropriately as
an expansion of the notice-posting remedy. The classification
has no effect on the preclusion of the company’s challenge, as
it failed to object on this score to the ALJ’s order or to seek
reconsideration of the Board’s.)
 6

Two members of the Board, Members Miscimarra and
Johnson, dissented.

The company didn’t file a motion for reconsideration with
the Board, opting instead to go directly to this court. On
appeal the company challenges only the three new remedies
added by the Board and the expansions of the ALJ’s notice-
posting and notice-reading remedies.

* * *

We lack jurisdiction to consider most of the company’s
objections because they were never raised before the Board.
Section 10(e) of the Act provides that “[n]o objection that has
not been urged before the Board . . . shall be considered by the
court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e). See also Woelke & Romero Framing, Inc. v.
NLRB, 456 U.S. 645, 665-66 (1982) (the § 10(e) bar is
jurisdictional). The company’s failure to file a motion for
reconsideration bars all its challenges except, for reasons we’ll
explain, its objections to the Board’s award of litigation
expenses and aspects of its challenge to the notice-reading
remedy.

The company raises several arguments in an attempt to
salvage its barred claims. First, the company argues that the
dissents by Members Miscimarra and Johnson offered the
Board an opportunity to confront objections to its Order, and
that the majority’s rejection of the dissenters’ points suggests
that moving for reconsideration would have been futile. But a
party may not rely on arguments raised in a dissent or on a
discussion of the relevant issues by the majority to overcome
the § 10(e) bar; the Act requires the party to raise its
challenges itself. See Contractors’ Labor Pool, Inc. v. NLRB,
323 F.3d 1051, 1061 (D.C. Cir. 2003); Local 900, Int’l Union
 7

of Elec., Radio and Mach. Workers v. NLRB, 727 F.2d 1184,
1191-92 (D.C. Cir. 1984).

Next, the company argues that the challenged remedies
are patently ultra vires and meet § 10(e)’s “extraordinary
circumstances” exception. The company is right that we could
review a remedy that is patently ultra vires. Alwin Mfg. Co. v.
NLRB, 192 F.3d 133, 143 n.13 (D.C. Cir. 1999). But the
Board’s remedial authority is broad, see, e.g., United Food &
Commercial Workers Union Local 204 v. NLRB, 447 F.3d
821, 827 (D.C. Cir. 2006), and that authority was not patently
exceeded under our precedents, particularly considering the
company’s history of severe and pervasive unfair labor
practices. Nor does the mere fact that the Board acted sua
sponte constitute an “extraordinary circumstance”; the
company was required to file a motion for reconsideration to
preserve its challenges. See NLRB v. FLRA, 2 F.3d 1190,
1195 (D.C. Cir. 1993).

Finally, the company argues that its exceptions to the
ALJ’s decision sufficed to preserve its challenges even to
remedies or requirements that the Board imposed sua sponte.
But an exception, no matter how broadly formulated, cannot
preserve an objection to something that the ALJ never
imposed. See NLRB v. Sambo’s Rest., Inc., 641 F.2d 794, 796
(9th Cir. 1981); NLRB v. St. Regis Paper Co., 674 F.2d 104,
108 n.4 (1st Cir. 1982). Cf. Quazite Div. of Morrison Molded
Fiberglass Co. v. NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996)
(“A categorical denial does not place the Board on notice that
its particular choice of remedy is under attack[.]”).

The company did, however, argue before the Board that
the notice-reading remedy was extraordinary and that
extraordinary remedies were unwarranted because there had
been no showing that traditional remedies were insufficient to
address the unfair labor practices. Although the objection did
 8

not specify the attributes of the notice-reading remedy that
called for special judicial concern (see below), we have held
that “when the issues implicated by an imprecisely drafted
objection are made evident by the context in which it is
raised,” § 10(e) is not a bar. Consol. Freightways v. NLRB,
669 F.2d 790, 794 (D.C. Cir. 1981). Indeed, the Board does
not dispute that the notice-reading remedy is properly before
us.

Here, of course, the Board changed the remedy in various
ways, most importantly by giving the company the option of
having a Board agent read the notice. But the Board does not
deny that even after its changes, the remedy remained
“extraordinary” and thus subject to the objection that it’s
unwarranted so long as traditional remedies suffice. See In Re
Federated Logistics & Operations, 340 N.L.R.B. 255, 256
(2003) (acknowledging that notice-reading with the Board-
agent option is an extraordinary remedy); First Legal Support
Servs., LLC, 342 N.L.R.B. 350, 350 n.6 (2004) (explaining
that extraordinary remedies cannot be granted unless
traditional remedies are insufficient). Although the option to
have a Board employee read the notice alters matters, as we
shall see when we address the merits, the order as modified
poses objections similar in character to those posed by the ALJ
recommendation. The Board’s additions, however, seem
distinctive, and insofar as they may call for anything more
than generalized analysis of the adequacy of traditional
remedies, HTH should have sought reconsideration if it
wished to challenge them in court.

In Judge Henderson’s view, “we are without jurisdiction
to consider the validity vel non of the Board-agent option.”
Henderson Op. 3. Assuming that to be true, the company’s
general challenge to the notice-reading remedy as an
extraordinary remedy is not barred, and it would make little
sense to consider that challenge without regard to the Board’s
 9

amelioration of the remedy (from HTH’s viewpoint) by giving
HTH another option. Taken to its extreme, such hyper-
refinement of party obligations under § 10(e) would mean that
any change made by the Board sua sponte, however trivial,
would require a motion for reconsideration (or else require the
reviewing court to ignore the change). We decline to adopt
this approach.

One other issue is also open to review—the Board’s
award of litigation expenses. We have explained that filing a
motion for reconsideration is patently futile where the agency
had previously rejected the very argument made by petitioner.
FLRA, 2 F.3d at 1196; cf. W & M Properties, Inc. v. NLRB,
514 F.3d 1341, 1346 (D.C. Cir. 2008). The patent futility of a
reconsideration motion excuses the failure to object, at least
where the Board acts sua sponte. See FLRA, 2 F.3d at 1196.
Here, the Board rejected the company’s argument with respect
to litigation expenses—that the Board has no inherent
authority to award such expenses—three years before its
decision in this case. See Camelot Terrace, 357 N.L.R.B.
1934, 1937-39 (2011). The Board had also awarded litigation
expenses based in part on its asserted inherent authority in
earlier cases. See, e.g., Teamsters Local Union No. 122, 334
N.L.R.B. 1190, 1193 (2001); Alwin Mfg. Co., 326 N.L.R.B.
646, 647 & n.6 (1998), enforced, 192 F.3d 133 (D.C. Cir.
1999); Lake Holiday Manor, 325 N.L.R.B. 469, 469 & n.5
(1998). In light of this precedent, asking the Board to
reconsider its sua sponte decision to award litigation expenses
in this case would have been patently futile—and the failure to
do so is excused under § 10(e)’s “extraordinary
circumstances” exception. See FLRA, 2 F.3d at 1196.

The cases generally do not distinguish between attorney’s
fees and other litigation costs for purposes of applying the
American rule. See, e.g., Nepera Chem., Inc. v. Sea-Land
Serv., Inc., 794 F.2d 688, 696 n.56 (D.C. Cir. 1986) (“The
 10

reasons underlying the American Rule lead to the conclusion
normally that litigation expenses other than attorneys’ fees are
similarly nonrecoverable.”). See also Fox v. Vice, 131 S. Ct.
2205, 2213 (2011) (“Our legal system generally requires each
party to bear his own litigation expenses, including attorney’s
fees, regardless whether he wins or loses.” (emphasis added));
Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 502
F.2d 349, 356 n.22 (D.C. Cir. 1974) (“The American rule
generally disfavors the award of attorney fees and other
litigation expenses except where specifically provided for by
statute or contract.” (emphasis added)). Thus, as the parties
have generally done in this case, we treat them as a package.

* * *

We turn now to the merits of the company’s two
preserved challenges—the mandated notice-reading first.
Recall that the ALJ recommended an order requiring specified
high-level company officials to read out the notice
acknowledging the company’s violations and committing not
to indulge in such behavior in the future. The Board, apart
from adding elements that § 10(e) bars us from considering,
narrowed the choice of persons to one, Minicola, but then
broadened the company’s choices by giving it the option of
having a Board employee read the notice in the presence of
company management.

The history of our court’s consideration of this issue is
long and complex, but displays two patterns: first, succeeding
panels manifest no detectable obligation to heed prior panels;
second, the degree of deference to the Board steadily
increases. We will recite the three key cases in chronological
order.

The line starts with International Union of Electrical,
Radio & Machine Workers v. NLRB, 383 F.2d 230 (D.C. Cir.
 11

1967) (“IUE”), in which the Board ordered “the employer” (it
singled out no individual) to read a notice to “groups of
employees, convened during working hours.” Id. at 232. This
was on top of requirements that the employer mail the notice
to each employee, post copies of the notice, and give a union
access to the facilities to present the union position (on
company time and at company expense). Id. & n.4. After the
usual genuflection to Board discretion, we dispatched the idea
in two sentences:

The public reading by the employer of the order would,
further, be humiliating and degrading to the employer and
undoubtedly would have a lingering effect on future
relations between the company and the Union. It could as
well have an impact on the atmosphere, not only at the
time of the reading, but in the future, for peaceful, fruitful,
and effective labor bargaining.

Id. at 233 (footnote omitted). We then opened the door the
tiniest sliver to a possible exception, and even in doing that we
returned immediately to the basic proposition that such an
order had no place in our democratic system:

It is conceivable that some conduct on the part of an
employer or a union might reach such extreme dimensions
as to justify the novel and drastic step of requiring the
offending party to stand up before the employees and read
the Board’s notice publicly, but we cannot close our eyes
to the reality that such a course would inevitably poison
the future relations between company and union and be a
source of continuing resentment. The ignominy of a
forced public reading and a “confession of sins” by any
employer, any employee, or any union representative
makes such a remedy incompatible with the democratic
principles of the dignity of man.
 12

Id. at 233-34. Although the opinion suggests that it is
“conceivable” that some conduct would call for a mandatory
reading remedy, the passage reverts to the court’s basic take
on the issue—that such a mandate is “incompatible with the
democratic principles of the dignity of man.”

The next time we considered the matter, in Teamsters
Local 115 v. NLRB, 640 F.2d 392 (D.C. Cir. 1981), the court
gave IUE a nodding glance, and then went on to give great
weight to a “new” purpose advanced by the Board—the
desirability of a management reading to provide employees
“reassurances that this [unlawful] campaign will end.” Id. at
402 (citation and internal quotation marks omitted). What
made this purpose so “new” the court did not reveal. The
court then paraphrased IUE’s allusion to the conceivability of
circumstances where, as the court put it, “the need for the
remedy would outweigh its oppressiveness,” and without more
ado approved mandatory employer reading. Id. at 403. Thus,
what IUE had unequivocally condemned, subject to a
“conceivable” exception, became something that with a little
“balancing” would be quite all right.

The court did, however, gag on one aspect of the order—
the specification of a named individual, the president and
owner of the offending firm. As he had directly performed
only one of the unfair labor practices, singling him out went
too far. Id. at 403-04.

In the next case, Conair Corp. v. NLRB, 721 F.2d 1355
(D.C. Cir. 1983), the court did not even pause to consider the
propriety of a notice-reading mandate, and jumped directly to
the specification of a named perpetrator. See id. at 1385-86.
Thus what IUE had said was “incompatible with the
democratic principles of the dignity of man” was now
acceptable automatically. The court did make a footnote
allusion to IUE, scoffing at the dissent’s reliance on it:
 13

The dissent reaches back to our decision in [IUE] for
language characterizing the requirement of a public
reading as “incompatible with the democratic principles
of the dignity of man.”

Id. at 1386 n.99. (The “reach back” was a full 16 years, less
than half the time that elapsed from Conair to the present.) It
then went on to say that IUE had been “superseded, if not
actually overruled, by our more recent decision” in Teamsters
Local 115, id., without explaining what entitled one panel to
overrule or “supersede” a prior panel’s decision. Normally
such switches can be done only by the court en banc or by an
Irons footnote (reflecting unanimous court approval). See
LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en
banc).

The Conair court went on to approve what IUE had not
even dreamed of and what Teamsters Local 115 had been
unable to stomach: a mandate that a particular perpetrator read
out the language specified by the Board. The court recognized
that such public reading implicated dignity interests but held
that the order was justified by the president’s “pervasive
personal involvement” in his company’s unfair labor practices.
Conair, 721 F.2d at 1386.

The dissent that the Conair majority dismissed in a
footnote was by then-Judge Ruth B. Ginsburg. Then-Judge
Ginsburg objected to requiring Conair’s president to
personally read out the notice, even though the president’s
personal involvement in the company’s unfair labor practices
was “far more conspicuous” than in Teamsters Local 115.
Conair, 721 F.2d at 1401 (Ginsburg, J., dissenting). The
dissent merits quoting at length:

I would modify the extraordinary notice remedies in
one respect. The Board’s order requires that Conair’s
 14

president, Leandro Rizzuto, personally read the Board’s
cease and desist notice to an assembly of employees; I
would allow Rizzuto to choose between reading the notice
himself or designating a responsible officer to read it on
his behalf.

...

[A] reading order “directed at a specified individual”
is a “startling innovation.” [Teamsters Local 115, 640
F.2d at 403.] Such an order would occasion no surprise in
a system in which those who offend against state
regulation must confess and repent as a means of self-
correction, or to educate others. But it is foreign to our
system to force named individuals to speak prescribed
words to attain rehabilitation or to enlighten an assembled
audience. The Board, I believe, has not thoughtfully
considered this point.

A forced, public “confession of sins,” even by an
owner-president who has acted outrageously, is a
humiliation this court once termed “incompatible with the
democratic principles of the dignity of man.” [IUE], 383
F.2d at 234. It has a punitive, vindictive quality, see
Teamsters Local 115, 640 F.2d at 401, and is the kind of
personal performance command equity decrees have
avoided. Moreover, as Board Chairman Van de Water
noted, Conair, 261 NLRB at 1195 n. 28, a reading of the
notice by the president may be less effective than a
reading by another responsible officer. The former,
humiliated and degraded by the personal specific
performance order, may demonstrate “by inflections and
facial expressions, his disagreement with the terms of the
notice.” Id. The latter, assigned the task but lacking the
same personal involvement, may perform it with less
distaste, more detachment, and thus with greater
 15

credibility. I would not single out the president here, or
any other named individual, hand him lines, and make
him sing.

Conair, 721 F.2d at 1401-02 (Ginsburg, J., dissenting) (some
citations omitted).

It’s worth pausing to think briefly why so many of our
distinguished predecessors have used the terms “humiliating
and degrading,” “ignominy,” and “confession of sins” for a
mandatory reading—especially by a named perpetrator—not
to mention why then-Judge Ginsburg acknowledged that an
order of this sort “would occasion no surprise in a system in
which those who offend against state regulation must confess
and repent as a means of self-correction, or to educate others.”
Id. at 1401. For those familiar with 20th century history, such
an order conjures up the system of “criticism-self-criticism”
devised by Stalin and adopted by Mao. “Criticism” generally
took the form of an attack on the target by his or her peers at a
meeting with fellow workers, spouting claims fed them by
powerful members of the Communist party (on pain of
themselves being tagged enemies of the people), and then
regurgitated by the target (“self-criticism”) in the hopes that
full confession might avert dispatch to the gulag, torture or
execution.

What is the subtext communicated by the sort of scene the
Board would mandate? What is communicated to the
assembled workers and the perpetrator himself? “You see
before you one of your managers, who normally has a
responsibility to make important choices as to your work. But
who is he? Not merely is he a lawbreaker, but he is a pathetic
creature who can, at the behest of federal officials (and not
especially lofty ones at that), be forced to spout lines they have
put in his mouth. He is not even a parrot, who can choose
when to speak; he is a puppet who speaks on command words
 16

that he may well abominate. We have successfully turned him
into a pathetic semblance of a human being.” Of course, one
may say, here it is just that the mighty have fallen; he was a
lawbreaker. But fallen so low? Fallen to a condition that
denies his autonomy? Cf. United States v. Gementera, 379
F.3d 596, 611 (9th Cir. 2004) (Hawkins, J., dissenting) (saying
that the sole purpose of a sentence requiring a convicted mail
thief to stand outside a post office for eight hours wearing a
sandwich board stating, “I stole mail. This is my punishment”
was “to turn him into a modern day Hester Prynne”).

As the quoted passage shows, then-Judge Ginsburg
approved the idea of an order allowing the company to avoid
the confessional feature by designating an officer to read out a
notice acknowledging the company’s violations. The
difference seems as obvious to us as it was to the court in
Teamsters Local 115.

Here of course the Board gave the company another
option—that of a having a Board agent read the notice to the
employees in the presence of management. This measure, too,
has a history in our court. In IUE we condemned it harshly in
dictum: “This procedure . . . creates a problem more severe
than the one it supposedly solves” because its “practical
effect” “is to put the imprimatur of the Board on both a
particular union’s activities, as well as on union activities in
general.” 383 F.2d at 233 n.5. See also Teamsters Local 115,
640 F.2d at 402 n.11 (“We . . . continue to doubt the propriety
of having a Board representative perform the reading.” (citing
IUE)). Recently, however, we enforced a notice-reading order
with the Board-agent option, without even a nod to IUE
(which neither party had cited). Federated Logistics &
Operations v. NLRB, 400 F.3d 920, 929-30 (D.C. Cir. 2005).
Although the court gave no explanation for the switch, we
believe that the “imprimatur” concern appears weak. After all,
the substance of the notice will make employees fully aware
 17

of how the Board has ruled, of which “side” the Board has
taken.

Indeed, in NLRB v. S.E. Nichols, Inc., 862 F.2d 952 (2d
Cir. 1988), when the Second Circuit found itself confronted
with an order that the president of an offending retail chain
read a notice, the court (sua sponte so far as appears) limited
the order to the store where the violations had taken place and
required the Board to give the company the alternative, at its
option, of having the notice read by a Board representative.
Id. at 962. “This alternative eliminates the necessity of
participation by the company, if it so desires, and still
guarantees effective communication of the Board’s order to
the company’s employees.” Id. See also Textile Workers
Union v. NLRB, 388 F.2d 896, 904 (2d Cir. 1967) (rejecting
the imprimatur idea). Accordingly, we feel no obligation to
follow the court’s previous dicta.

Given the company’s long history of unlawful practices
and the severe violations the Board found in this case, we
uphold the Board’s exercise of discretion in ordering notice-
reading in the modified form, i.e., with the company having
the option of punting the task to a Board employee. (As
explained above, we lack jurisdiction to consider the
company’s challenges to the additional requirements the Board
appended to the notice-reading remedy. We therefore enforce
those requirements.) Further, given the option of having the
notice read by a Board employee, we have no need to address
the validity of an employee-specific notice-reading mandate
unaccompanied by such an option.

* * *

We turn next to the Board’s award of litigation expenses
to the General Counsel and the union. In Unbelievable, Inc. v.
NLRB, 118 F.3d 795, 800-06 (D.C. Cir. 1997), we held that
 18

the Board lacks authority to shift litigation expenses under
§ 10(c) of the Act, which empowers the Board “to take such
affirmative action including reinstatement of employees with
or without back pay, as will effectuate the policies of [the
Act],” 29 U.S.C. § 160(c). In ordering fees in this case, the
Board recognized the holding in Unbelievable but claimed
that, like a federal court, it has “inherent authority to control
and maintain the integrity of its own proceedings through an
application of the bad-faith exception to the American Rule.”
HTH Corp., 361 N.L.R.B. No. 65, Amended Deferred
Appendix (“App.”) 3-4. See Chambers v. NASCO, Inc., 501
U.S. 32, 45-46 (1991) (recognizing that although the American
rule prohibits fee shifting in most cases, federal courts have
inherent power to assess attorney’s fees “when a party has
‘acted in bad faith, vexatiously, wantonly, or for oppressive
reasons’” (citation and internal quotation marks omitted)).

As a creature of statute the Board has only those powers
conferred upon it by Congress. See Louisiana Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986); Michigan v. EPA,
268 F.3d 1075, 1081 (D.C. Cir. 2001). To be sure, we have
recognized that agencies enjoy some powers that were not
expressly enumerated by Congress. See, e.g., Ivy Sports Med.,
LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (power to
reconsider prior decisions); Polydoroff v. ICC, 773 F.2d 372,
374 (D.C. Cir. 1985) (power to police the behavior of
practitioners); Howard Sober, Inc. v. ICC, 628 F.2d 36, 41
(D.C. Cir. 1980) (power to correct clerical mistakes).
Although we have often described these powers as “inherent,”
the more accurate label is “statutorily implicit.” See Ivy
Sports, 767 F.3d at 93 (Pillard, J., dissenting). Therefore,
unlike a federal court, the Board may apply the bad-faith
exception to the American rule only if some provision or
provisions of the Act explicitly or implicitly grant it power to
do so.
 19

In deciding to award litigation expenses on a bad-faith
theory, the Board relied solely on its “inherent authority to
control and maintain the integrity of its own proceedings.”
HTH Corp., 361 N.L.R.B. No. 65, App. 3-4. Neither in its
Order nor on appeal has the Board argued that the power to
shift fees in cases of bad faith is implicit in the Act. Given
that it is wrong to speak of agencies as having any inherent
authority, it would under many circumstances be quite
appropriate for us to say that the Board has cited no pertinent
authority at all, to vacate this part of the Order under review,
and to have done with it.

There are several reasons to reject that approach and
consider whether § 10(c) implicitly authorizes fee shifting
based on bad faith. First, the distinction between inherent
authority and implicitly granted authority is a subtle one—so
subtle that this court generally overlooked it until Judge Pillard
pointed it out in Ivy Sports. Second, considering § 10(c) does
not take us into refined linguistic nuances; § 10(c) simply
authorizes the Board to take “such affirmative action . . . as
will effectuate the policies” of the Act. Third, and closely
related to the purely linguistic point, the decisive
considerations resolving the issue stem not from the exact
language of § 10(c) but from contextual concerns that were at
the heart of Unbelievable and the subject of intense discussion
at oral argument.

The controlling contextual concern arises from two
propositions: first, that nothing in § 10(c) grants the Board
punitive powers, and, second, that application of the American
rule’s bad-faith exception is punitive. On the first, as we said
in Unbelievable, “The Supreme Court has consistently
invalidated Board orders that are not directly related to the
effectuation of the purposes of the Act or are punitive.” 118
F.3d at 805 (emphasis added). We cited several decisions in
support of that proposition, starting with Consolidated Edison
 20

Co. v. NLRB, 305 U.S. 197, 235-36 (1938), which held that the
Board’s purported cancellation of bargaining agreements that
were not causally derived from the alleged unfair labor
practices was punitive and therefore not within the Board’s
§ 10(c) powers, even if the Board should “be of the opinion
that the policies of the Act might be effectuated by such an
order.” Id. at 236. Similarly, once we found in Capital
Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1009-12
(D.C. Cir. 1998), that the Board’s imposition of contract terms
on a successor employer based on terms negotiated by its
predecessor was punitive in the circumstances, we held it
beyond the Board’s powers. A § 10(c) remedy, we said, “must
be truly remedial and not punitive.” Id. at 1009.

This authoritative ban on punitive remedies by the Board
is triggered here: the Supreme Court has consistently classified
application of the bad-faith exception to the American rule as
punitive. Hall v. Cole, 412 U.S. 1, 5 (1973). Such fee shifting
is akin to a fine for civil contempt: both serve the purpose of
vindicating the tribunal’s authority over a recalcitrant litigant.
Chambers, 501 U.S. at 53.

The Board doesn’t dispute that it may not adopt punitive
remedies but argues instead that its award of litigation
expenses is “clearly compensatory in nature.” HTH Corp.,
361 N.L.R.B. No. 65, App. 4. According to the Board, the
General Counsel and the union were forced to squander
resources on this case, and the fee award merely “helps restore
the parties to where they would have been but for the
[company’s] unlawful conduct.” Id. Of course we recognize
that compensation and punishment are not inherently mutually
exclusive goals. But in the context of the American rule, any
attempt to rest on the compensatory character of a fee award
runs into the basic underpinning of the American rule, namely,
the idea that the compensatory functions of fee shifting
collide, in the litigation context, with other values, particularly
 21

broad freedom to assert rights and defenses. See Summit
Valley Indus. Inc. v. Local 112, 456 U.S. 717, 724-25 (1982).
Thus we said in Unbelievable, “To the extent that the Board is
relying upon the idea that a party is not made whole unless it
recovers its attorney’s fees, . . . that is but a criticism of the
American Rule—indeed, a criticism that the Supreme Court
has heard and rejected.” 118 F.3d at 805. As the Supreme
Court declared in Chambers, “That the award ha[s] a
compensatory effect does not in any event distinguish it from a
fine for civil contempt, which also compensates a private party
for the consequences of a contemnor’s disobedience.” 501
U.S. at 53-54 (citation and internal quotation marks omitted).
See also id. at 54 n.15.

The Board’s opinion also says that the fee award “protects
the integrity of our processes, serving as a deterrent to
violations” of its Order and protecting the parties’ rights
(presumably by way of deterring further unfair labor
practices). HTH Corp., 361 N.L.R.B. No. 65, App. 4. But in
the context of identifying the powers granted the Board, the
Court has rejected deterrent purposes precisely on the ground
of their overlap with punitive goals. When the Board tried to
order an employer to compensate government relief agencies
whose expenditures had been increased as a result of the
employer’s violations, the Court firmly rejected the Board’s
reliance on deterrent effect. If “a deterrent effect is sufficient
to sustain an order of the Board, it would be free to set up any
system of penalties which it would deem adequate to that
end.” Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940).

Because the Board has (at best) invoked only § 10(c), we
do not decide whether the power to shift fees in cases of bad
faith may be implicit in some other provision of the Act.
 22

* * *

With respect to the award of litigation expenses, we grant
the company’s petition and deny enforcement. As to all other
portions of the Order, we deny the petition and enforce the
Order, either on the merits or because of HTH’s failure to
meet the requirements of § 10(e).

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and concurring in the judgment: I agree with my
colleagues that we should uphold the Board’s notice-reading
remedy and strike its award of litigation expenses. We differ,
however, in how we reach that result.

Judge Williams concludes that we should uphold the
notice-reading remedy the Board imposed because HTH has
been given “the option of punting the task to a Board
employee.” Maj. Op. 17. Although earlier cases cast doubt
on the propriety of singling out a particular corporate officer
and “mak[ing] him sing,” see Conair Corp. v. NLRB, 721
F.2d 1355, 1402 (D.C. Cir. 1983) (R.B. Ginsburg, J.,
dissenting), allowing a Board representative to read the notice
instead appears to alleviate his concern. See Maj. Op. 16–17
(citing NLRB v. S.E. Nichols, Inc., 862 F.2d 952 (2d Cir.
1988)). Judge Rogers would not rely on the Board-agent
alternative in upholding the notice-reading remedy as Judge
Williams does; she nonetheless finds it a reasonable
“compromise.” See Rogers Op. 3, 5–6.

I disagree. In my view, the Board-agent alternative
“creates a problem more severe than the one it supposedly
solves.” Int’l Union of Elec., Radio & Mach. Workers, AFL-
CIO v. NLRB (IUE), 383 F.2d 230, 233 n.5 (D.C. Cir. 1967);
see also Teamsters Local 115 v. NLRB, 640 F.2d 392, 402
n.11 (D.C. Cir. 1981) (“We . . . continue to doubt the
propriety of having a Board representative perform the
reading.”). As we explained in IUE, a Board representative
reading the notice “put[s] the imprimatur of the Board on both
a particular union’s activities, as well as on union activities in
general,” 383 F.2d at 233 n.5, thereby compromising the
Board’s role as labor-law referee. 1

1
It is true that since IUE and Teamsters we have upheld a
notice-reading remedy that included a Board-agent option and that
 2
Judge Williams characterizes the imprimatur concern as
“weak” because “the substance of the notice will make
employees fully aware of how the Board has ruled” and “of
which ‘side’ the Board has taken.” Maj. Op. 16–17 (emphasis
in original). But even if the notice’s substance indicates
“which ‘side’ the Board has taken” in this case, see id. at 17,
when a Board agent stands up to castigate an employer in
front of unionized employees, those employees are inevitably
left with a perception of the Board as union enforcer, not
neutral arbiter. A referee calling a foul is one thing; a referee
calling a foul while wearing one team’s uniform is quite
another. In short, who reads the notice matters.

we did so “without even a nod to IUE.” Maj. Op. 16 (discussing
Federated Logistics & Operations v. NLRB, 400 F.3d 920, 929–30
(D.C. Cir. 2005)). My colleagues fail to mention, however, that we
gave no “nod” to the Board-agent option, period. Other than a
single reference made in describing the remedy imposed, the
Federated court’s analysis focused exclusively on whether the
notice-reading remedy—that “a Federated management official”
read the notice—was lawful. See Federated Logistics, 400 F.3d at
929–30. The court plainly did not approve the Board-agent option
as my colleagues do here, see Maj. Op. 16–17; Rogers Op. 5–6, and
as we discussed (and rejected) the Board-agent option in IUE, 383
F.2d at 233 n.5, and Teamsters, 640 F.2d at 402 & n.11. Indeed,
the Federated court had no reason to do so inasmuch as the general
validity of an “any-responsible-officer” notice-reading was not in
question. We also acknowledged its validity in Teamsters, 640
F.2d at 404 (enforcing public reading only with “a responsible
officer” of employer as reader), and even then-Judge Ginsburg, in
her emphatic dissent in Conair, would have upheld the notice-
reading remedy at issue there had “a responsible officer” been
required to read the notice rather than a specific person, see 721
F.2d at 1401. Accordingly, the Federated court had no reason to
comment on the propriety of the Board-agent option and I believe
we should not read its failure to do so as a sub silentio endorsement
thereof.
 3
That said, I believe we are without jurisdiction to
consider the validity vel non of the Board-agent option. The
alternative is not part of the remedy the ALJ recommended
and to which HTH originally excepted. Further, HTH did not
move for reconsideration, objecting to the Board’s
modification of the remedy. Because we lack jurisdiction to
consider an objection HTH has not first presented to the
Board, see 29 U.S.C. § 160(e); see also Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 665–66 (1982), I would
not reach this portion of the remedial order.

And my colleagues’ conclusion that HTH’s original
objection to the ALJ’s remedy preserves its challenge to the
notice-reading remedy as modified by the Board—including
the Board-agent alternative—is, in my view, mistaken. See
Maj. Op. 7–8. Although “an imprecisely drafted objection”
may, when read in context, operate to preserve otherwise
unobjected-to issues, see id. at 8 (quoting Consol.
Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981)),
we have emphasized that a party’s “single reference to the
‘excessive breadth’ of a remedy with multiple parts is
insufficient to satisfy section 10(e) because it failed to give
the Board ‘ “adequate notice” of the argument it seeks to
advance on review,’ ” Highlands Hosp. Corp. v. NLRB, 508
F.3d 28, 33 (D.C. Cir. 2007) (emphasis added) (quoting Am.
Postal Workers Union v. NLRB, 370 F.3d 25, 28 (D.C. Cir.
2004)). I see no reason why the same proposition should not
hold where, as here, the notice-reading remedy itself has
“multiple parts.” See id. Simply because one part—singling
out a specific reader—was objected to as extraordinary does
not mean all additional requirements or alternatives added by
the Board post-objection are covered by it.

This is especially true if (again, as is the case here) the
remedy’s “multiple parts,” id., address different concerns. As
 4
my colleagues recognize, our earlier cases questioned the
propriety of the individual-reader designation because of the
affront to the reader’s dignity. See Maj. Op. 10–16. In
contrast, the Board-agent option is problematic because it
compromises the Board’s neutrality in the eyes (and to the
ears) of the attending employees. See supra at 1–2. The same
is true of the Board’s other modifications of the notice-
reading remedy—i.e., the requirement that supervisors attend
and that a Union official be allowed to be present; they raise
different issues. See Maj. Op. 8. I agree, then, with my
colleagues when they say these other “additions . . . seem
distinctive,” id. (emphasis in original), and that we are
jurisdictionally barred from considering them, id. at 17. In
my view, the Board-agent alternative is no different: it was
added sua sponte by the Board, implicates concerns different
from the general notice-reading remedy originally imposed
and HTH never objected to it. Accordingly, I would hold that
we are jurisdictionally barred from considering HTH’s
challenge to this alternative and therefore we must enforce it.

In my view, the only portion of the remedy properly
before us is that a notice be read publicly and that Minicola be
the one to read it. Judge Williams ably summarizes this
remedy’s history in our circuit, see Maj. Op. 10–16, and, for
the reasons he colorfully describes, see id. at 13–16, I am
similarly troubled by the prospect of singling out a particular
individual for a public “confession of sins,” Conair Corp.,
721 F.2d at 1401 (R.B. Ginsburg, J., dissenting), no matter the
egregiousness of his conduct. Nevertheless, our more recent
cases have upheld such a remedy if the Board identifies a
“particularized need” for it, as evidenced by “substantial
links” between the reader’s conduct and the unfair labor
practice. United Food & Commercial Workers Int’l Union,
AFL-CIO v. NLRB, 852 F.2d 1344, 1348 (D.C. Cir. 1988); cf.
Federated Logistics, 400 F.3d at 938 (Henderson, J.,
 5
dissenting). Given that Minicola was the primary source of
HTH’s unfair labor practices, 2 our precedent—my concerns
therewith notwithstanding—compels me to uphold the
remedy. Because, as noted, we lack jurisdiction to consider
HTH’s challenges to any other aspect of the notice-reading
remedy, I concur in the judgment denying HTH’s petition on
this issue.

My reasoning diverges from my colleagues’ on a second
point as well. After concluding “that it is wrong to speak of
agencies as having any inherent authority,” Maj. Op. 19
(emphasis in original), my colleagues then analyze “whether
§ 10(c) implicitly authorizes fee shifting based on bad faith,”
see id. They ultimately conclude that section 10(c) does not
by implication authorize fee shifting because fee shifting is
punitive and the Board’s power is exclusively remedial. Id. at
19–21.

In my view, analyzing whether section 10(c) “implicitly”
authorizes fee-shifting is unnecessary—and jurisprudentially
out of bounds—to resolve this case. The Board relied
exclusively on its purported “inherent authority” to award
litigation expenses, not on section 10(c) or any other statutory
authority. See HTH Corp., 361 N.L.R.B. No. 65, at 4 & n.16

2
According to the ALJ’s findings, which the Board adopted
and HTH does not dispute here, Minicola was involved in almost
all of the unfair labor practices: he wrongfully fired an employee,
see HTH Corp., 361 N.L.R.B. No. 65, at 37–41 (Oct. 24, 2014),
wrongfully barred Union representatives from the Hotel’s premises,
id. at 41–43, and wrongfully made unilateral changes to employee
policies, id. at 44–45. In perhaps the most extreme episode of
Minicola’s behavior discussed by the ALJ (and specifically noted
by the Board, id. at 2 n.10), when the Union informed Minicola that
his unilateral changes violated a court injunction, “Minicola replied,
‘F*** the judge. He’s wrong.’ ” Id. at 45.
 6
(Oct. 24, 2014) (“Because the Board may award litigation
expenses against a party who engages in bad-faith conduct
based on its inherent authority to control its own proceedings,
it is unnecessary to pass on whether it may alternatively do so
under its Sec. 10(c) remedial authority to effectuate the
policies of the Act.”). And as my colleagues recognize,
Maj. Op. 18–19, no such extra-statutory “inherent authority”
exists, as the two dissenting Board members—with admirable
modesty—recognized, see HTH Corp., 361 N.L.R.B. No. 65,
at 21 (Member Miscimarra, dissenting in part); id. at 26–27
(Member Johnson, dissenting in part). Contrary to the
Board’s apparent belief, it is not a court of law or equity; it
exercises only the powers granted by the Congress. See, e.g.,
Int’l Union of Elec., Radio and Mach. Workers, AFL-CIO v.
NLRB, 502 F.2d 349, 352–53 n.* (D.C. Cir. 1974) (opinion of
MacKinnon, J.) (“Absent statutory authority, courts may, in
the exercise of their inherent equitable powers, award attorney
fees in certain carefully circumscribed situations where
overriding considerations indicate the need for such a
recovery. . . . An administrative agency possesses no such
inherent equitable power, however, for it is a creature of the
statute that brought it into existence; it has no powers except
those specifically conferred upon it by statute.” (citation and
quotation marks omitted)). Accordingly, I would hold that
the Board has no “inherent authority” to award attorneys’
fees, period; in my view, that is all that need be said to justify
granting HTH’s petition on this issue. 3

3
I fully concur in my colleagues’ conclusions, see
Maj. Op. 6–7, regarding our lack of jurisdiction to consider HTH’s
challenges to the other remedies the Board modified or imposed sua
sponte—reimbursement of Union bargaining costs, general notice
publication, Union visitation rights and enhancements to the notice-
posting and notice-mailing remedies. I also fully concur in my
colleagues’ conclusion that HTH’s challenge to the litigation-
 7

expenses requirement is preserved under the futility exception. See
id. at 9; Rogers Op. 1–2.
 ROGERS, Circuit Judge, concurring in part, concurring in
the judgment.

I.

Section 10(e) of the National Labor Relations Act limits the
court’s jurisdiction to issues that have been presented to the
Board. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.
645, 665–66 (1982). In cases where an issue is raised sua sponte
by the Board, parties are generally required to file a motion for
reconsideration in order to preserve it. Spectrum Health-Kent
Cmty. Campus v. NLRB, 647 F.3d 341, 349 (D.C. Cir. 2011). A
narrow exception exists in “extraordinary circumstances,” 29
U.S.C. § 160(e), where a motion for reconsideration would be
futile. Thus, in NLRB v. FLRA, 2 F.3d 1190, 1195 (D.C. Cir.
1993), although there was no objection to the Federal Labor
Relations Authority’s determination that a proposal was an
“appropriate arrangement,” the court nevertheless concluded that
the issue was reviewable. The FLRA had previously and
frequently held identical proposals were “appropriate
arrangements” and had raised the issue sua sponte. In those
circumstances, the court held that a rehearing petition would
have been “patently futile.” Id. at 1196–97.

So too, here. The Board sua sponte required HTH
Corporation to reimburse the union and the Board’s general
counsel for their attorneys’ fees and litigation costs. HTH Corp.,
361 NLRB No. 65 (2014). For more than a decade, the Board
has rejected the objections that HTH now raises, namely, that the
Board lacks “inherent authority” to order reimbursement of
litigation expenses. See, e.g., Camelot Terrace, 357 NLRB No.
161, at *6 (2011); Teamsters Local Union No. 122, 334 NLRB
1190, 1193 (2001); Alwin Mfg. Co., 326 NLRB 646, 647 (1998),
enforced, 192 F.3d 133 (D.C. Cir. 1999); Lake Holiday Manor,
325 NLRB 469, 469 & n.5 (1998). The Board’s decision here
 2

followed only three years after Camelot Terrace, in which the
Board ruled that notwithstanding its lack of statutory authority
to order the payment of attorneys’ fees, see Unbelievable, Inc. v.
NLRB, 118 F.3d 795 (D.C. Cir. 1997), it could award fees “as a
function of the inherent authority to preserve the integrity of its
processes.” Camelot, 357 NLRB at *8. Indeed, the Board’s
brief to this court reaffirms that it adheres to its long-standing
position that it possesses inherent authority when a respondent
engages in the type of egregious conduct in which the Board
found HTH has engaged for a decade. HTH Corp., 361 NLRB
No. 65 at *1 & n.4. Under these circumstances, I concur in
holding that it would have been futile for HTH to move for
reconsideration by the Board, and the court has jurisdiction to
consider HTH’s challenge to the Board’s sua sponte imposition
of attorneys’ fees and costs.

On the merits, I concur in granting the petition with respect
to attorneys’ fees and costs in light of Unbelievable, 118 F.3d
795, which must be read in view of Nepera Chemical, Inc. v.
Sea-Land Service, Inc., 794 F.2d 688, 694 n.56 (D.C. Cir. 1986).
See also Fox v. Vice, 131 S. Ct. 2205, 2213 (2011); Op. at 18–21;
id. at 9–10.

II.

The Board’s order directing that either a company Vice
President or, at HTH’s option, a Board representative read the
Board’s order is a permissible exercise of the Board’s broad
remedial authority. See Federated Logistics & Operations v.
NLRB, 400 F.3d 920, 929–30 (D.C. Cir. 2005).

A little history is in order. See Op. at 10. In International
Union of Electrical, Radio & Machine Workers v. NLRB, 383
F.2d 230, 233 (D.C. Cir. 1967) (“IUE”), the court rejected a
notice-reading remedy in which the Board had ordered the
 3

employer to read the Board’s order to its employees on company
time. The court concluded that this “fourth promulgation” of the
Board’s order was “inappropriate to achieve the sought-after goal
of dissemination of information concerning employees’ rights.”
Id. at 232–33. The court stated “further” that the public reading
would be humiliating and degrading to the employer and
“undoubtedly” have a lingering effect on future management-
union relations. Id. at 233. It also noted a circuit split on the
issue. Id. at 233 n.5. Although acknowledging the possibility of
extreme conduct that would justify the novel and drastic step, the
court concluded that “[t]he ignominy of a forced public reading
and a ‘confession of sins’ by any employer, any employee, or
any union representative makes such a remedy incompatible with
the democratic principles of the dignity of man.” Id. at 234. One
member of the court, however, would have adopted a
compromise, allowing the employer to decide to have a
representative of the Board read the Board’s order, or would
have remanded for the Board to consider this compromise. Id.
(Wright, J., concurring in part and dissenting in part) (citing J.P.
Stevens & Co. v. NLRB, 380 F.2d 292, 305 (2d Cir. 1967)).

The Board subsequently determined that in some instances
the public reading served a permissible purpose. This change
was addressed in Teamsters Local 115 v. NLRB (Haddon House),
640 F.2d 392, 402–03 (D.C. Cir. 1981). The Board, while
acknowledging judicial doubts about the propriety of such an
order, had concluded that where the employer had carried out an
anti-union campaign there were circumstances where the
employer itself must give its employees “reassurances that this
campaign will end.” Id. at 402. Although other circuits
generally approved the public reading order once the Board
representative option became routine, see id., the Board
concluded that would not suffice in these circumstances. The
court acknowledged the Board’s broad remedial powers and the
court’s limited review, see id. at 399 (citing NLRB v. Gissell
 4

Packing Co., 395 U.S. 575, 612 n.32 (1969); Fibreboard Paper
Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964)), and stated:

The Board’s remedy is admittedly strong medicine.
But in the context of the severely chilling environment
created by this Employer’s unfair labor practices, we
cannot say it was superfluous to the cure. This is not a
mere “additional” promulgation of the notice’s
contents, but rather a deliberate attempt to alleviate the
workers’ fears about the Employer’s intentions. The
reading can do little to disrupt the already strained
relationship between the Employer and the Union, and
it may be of substantial benefit to the employees.
Whether or not this hope is realized, we cannot say that
the Board was wrong to make an effort in that direction.
This court acknowledged in [IUE] that there were
conceivably cases where the need for the remedy would
outweigh its oppressiveness and justify the public
reading order. We believe that this is such a case.

Id. at 402–03.

The court declined to enforce a “highly unusual” feature of
the public reading order, however. It noted that the Board had
singled out a company’s chief executive officer to perform a
public reading only once before, where the Board had
emphasized the personal participation of the company president
in the unfair labor practices. The court observed that, although
“it was unnecessary to decide whether [such circumstances], or
any circumstances whatsoever, could justify the startling
innovation of the Board reading order directed at a specific
individual,” here “the Board did not make a careful analysis of
the necessity for [the company owner and president] to undertake
the reading, and the record suggests no such necessity.” Id. at
403. The company president had personally performed only one
 5

unfair labor practice while other members of management
engaged in numerous others. See id. The court concluded the
negative aspects of the order, as identified in this court’s opinion
in IUE, overwhelmed “the marginally greater impact” of having
the company president read the order, and found it was
“unjustified.” Id. at 403–04.

Since Teamsters, the court, like our sister circuits, has
enforced a Board order that required a notice reading where the
employer was afforded the option of having the notice read by a
Board representative. See Federated Logistics & Operations,
400 F.3d at 929–30. Alternatively, the court has enforced notice-
reading remedies that single out a high official of the employer
where the record indicates “a particularized need does exist and
that the reading is necessary ‘to dispel the atmosphere of
intimidation created in large part by [the singled-out officer’s]
own statements and actions.’” United Food & Commercial
Workers Int’l Union v. NLRB, 852 F.2d 1344, 1348 (D.C. Cir.
1988) (quoting Conair v. NLRB, 721 F.2d 1355, 1386–87 (D.C.
Cir. 1983), and citing IUE, 383 F.2d at 234); Teamsters, 640
F.2d 233.1

1
In United Food, the court observed:

National labor law has undergone many changes from the
early days of the Wagner Act. Throughout this period, courts
have acknowledged the broad remedial discretion that the
Board must have to effectuate the policies of the statute. Such
discretion makes it difficult to provide bright-line limits on
the remedies that the Board can utilize. As the decisions of
this court in Teamsters and Conair demonstrate, unique and
specific facts of a case will more often than not provide the
measure that allows a remedy in one case and precludes it in
another. Such are the vagaries of judicial review of the
delicate fabric of our national labor law.
 6

As this history indicates, there is no need to impugn the
court’s reconciliation of its precedent with the congressional
design granting the Board broad power and discretion to devise
remedies to effectuate the policies of the National Labor
Relations Act. See Gissell Packing Co., 395 U.S. at 612 n.32;
Fibreboard Paper Prods. Corp., 379 U.S. at 216. Because the
Board’s notice-reading order is consistent with our precedent
enforcing the compromise option, there is no need to imply that
the Board’s judgment in specific egregious circumstances has
abandoned democratic principles. See Op. at 15–16. The record
supports the Board’s conclusion that a notice-reading remedy
was warranted by the egregious conduct of HTH and its Vice
President’s pervasive unlawful conduct over an extended period
of time. See Op. 3–4. HTH has not challenged any factual
finding by the Board.

Accordingly, I concur in part and concur in the judgment.

852 F.2d at 1349.