Camelot Terrace, Inc. v. NLRB

Camelot Terrace, Inc. v. NLRB

Opinion

 [*1087]   [**76]  Karen Lecraft Henderson, Circuit Judge: Camelot Terrace, Inc. (Camelot) and Galesburg Terrace, Inc. (Galesburg) (collectively, Companies) petition for review of a decision and order of the National Labor Relations Board (Board) determining that the Companies violated the National Labor Relations Act (Act), 29 U.S.C. §§ 151 et seq., by engaging in bad-faith bargaining with the Service [***2]  Employees International Union (Union). The Companies do not contest the Board's conclusion that they violated the Act; rather, they challenge two of the remedies the Board imposed: (1) reimbursement of litigation costs incurred by both the Board and the Union during Board proceedings and (2) reimbursement of "all" of the negotiation expenses the Union incurred during its bargaining sessions with the Companies. See Camelot Terrace, 357 N.L.R.B. No. 161, 2011 WL 7121892, at *13, *15 (Dec. 30, 2011). The Companies assert that the Board is without authority to impose either remedy. Alternatively, they argue that the amount of the bargaining-costs remedy—"all" of the Union's bargaining expenses—exceeds the amount necessary to remedy the harm caused by the Companies' conduct and is improperly punitive.

We agree that the Board lacks authority to require the reimbursement of litigation costs incurred during Board proceedings, see HTH Corp. v. NLRB, No. 14-1222, 823 F.3d 668, 422 U.S. App. D.C. 352, 2016 U.S. App. LEXIS 9226, 2016 WL 2941936, at *9-11 (D.C. Cir. May 20, 2016), but hold that ] the Board may require an employer to reimburse a union's bargaining expenses pursuant to its remedial authority under section 10(c) of the Act. We also conclude that we lack jurisdiction to entertain the Companies' alternative challenge to the amount of the bargaining-costs award because they failed to raise it before the Board. Accordingly, [***3]  we grant the Companies' joint petition in part and grant the Board's cross-application for enforcement in part.

Camelot and Galesburg both operate nursing homes in Illinois. In 2007, the Union was certified as the exclusive representative  [*1088]   [**77]  of employees at both facilities. Over the course of 2008 and 2009, the Companies—primarily through the conduct of their common owner, Michael Lerner—repeatedly bargained with the Union in bad faith.¹ The Board's Office of the General Counsel (OGC) got involved, leading to a settlement agreement detailing specific bargaining requirements the Companies were to satisfy. When the Companies failed to abide by the terms of the agreement and continued to bargain in bad faith, the OGC issued a complaint charging the Companies with numerous violations of the Act. After holding a hearing and concluding that the Companies had indeed violated the Act, an Administrative Law Judge (ALJ) ordered, inter alia, that the Companies "[r]eimburse the [Board] . . . and the Union for all costs and expenses incurred in the investigation, preparation and conduct of [the case] before the Board and the courts." Camelot Terrace, 357 N.L.R.B. No. 161, 2011 WL 7121892, at *125. The ALJ also ordered the Companies to "[r]eimburse the Union for all costs and expenses [***4]  incurred in collective-bargaining negotiations from January 2008 to the [parties'] last bargaining session." Id.

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