The National Labor Relations Board had the authority to order a variety of remedies for serious unfair labor practices, but it couldn't order a Hawaii hotel to reimburse the NLRB and a labor union for the litigation expenses they incurred in a board proceeding, the U.S. Court of Appeals for the District of Columbia Circuit held (HTH Corp. v. NLRB, D.C. Cir., No. 14-1222, 5/20/16).

The NLRB held in 2014 that the employer's "egregious and pervasive" unfair labor practices required extraordinary remedies, but Steven W. Suflas, managing partner in the Denver office of Ballard Spahr LLP, said it was "not surprising" that the board's awarding of attorneys' fees "didn't fly in the D.C. Circuit."

Suflas, a partner at Ballard Spahr, said the NLRB recently has been trying to enhance its remedial powers by adopting measures that would have been authorized if the proposed Employee Free Choice Act had been enacted into law. Of all the federal circuits, the D.C. Circuit "looks most carefully" at the board's claims of statutory power, Suflas said, noting the he wasn't surprised that the NLRB ran into a wall in the appeals court.

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