Heck's Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 765 (N.L.R.B. 1974)

HECK'S INC. 765
Heck's Inc . and Amalgamated Meat Cutters and
Butcher Workmen of North America , Food Store
Employees Union , Local No. 347, AFL-CIO. Cases
6-CA-3989 and 6-RM-326
December 16, 1974
SECOND SUPPLEMENTAL DECISION
BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS,
AND KENNEDY
On May 20 , 1974, the Supreme Court of the United
States remanded the instant proceeding ' with direc-
tions that we either clarify the "facial inconsistencies"
between our Supplemental Decision herein ' and our
subsequent Tiidee opinion ,' or that we declare that a
change of policy on the question of remedies has indeed
occurred, as evidenced by our Tiidee decision , and, if
the latter be true , that we ascertain whether our new
policy should be applied retroactively in this case.
Thereafter , having accepted the Court's remand, we
issued a notice to the parties , requesting statements of
position . Such statements have been filed by the Re-
spondent and Amalgamated Meat Cutters and Butcher
Workmen of North America, Food Store Employees
Union , Local No. 347, AFL-CIO, the Charging Party
herein.
The Board has given full consideration to the views
of the courts which have heretofore considered the is-
sues raised in this case and has similarly considered the
parties ' statements of position . For reasons more fully
set forth hereinafter , we conclude that our subsequent
decision in Tiidee did not reflect a change in our exist-
ing policy, nor do we now find it otherwise appropriate
in the circumstances of this case to vary the terms of
our remedial order , as heretofore amended.
In view of the complexity of the issues raised in this
case, and because of the labyrinthian history which
both this case and Tiidee share , we believe that some
explication of that history will facilitate discussion of
those issues and enable the reader more readily to un-
derstand and be guided by our Decision herein. Ac-
cordingly , a brief history of these cases is set forth
below.
doubt concerning the Union's majority status the fact
that the Respondent had engaged in a "flagrant repeti-
tion of conduct previously found unlawful" in earlier
Decisions. This conduct included threats, interroga-
tions, coercive interviews, and illegal polls. Neverthe-
less, we left undisturbed the Administrative Law Jud-
ge's refusal to recommend that the Respondent be
ordered to reimburse the Union for litigation expenses
incurred as a result of such conduct, as requested by the
latter, deeming it inappropriate to depart from our "ex-
isting policies" with respect to remedial orders.
Five months later, in Tiidee Products, Inc.,' the
Board declined to comment on an Administrative Law
Judge's refusal to recommend, at the union's request,
that employees be made whole for wages and benefits
lost, by reason of the respondent's refusal to bargain,
and that the union be paid for lost dues and initiation
fees. The Court of Appeals for the District of Co-
lumbia, however, remanded Tiidee to us for further
consideration of our refusal to allow the union's claim
for make-whole relief.6 In so remanding, the court
stated:
The Company's refusal to bargain was a clear
and flagrant violation of the law. Its objections to
the election were patently frivolous, and violated
the express terms of the Agreement for Consent
Election, entered into with the Union only thirteen
days before the election, to abide by the decision
of the regional director. The Company gave not a
hint of support or explanation for its claim that the
regional director acted "arbitrarily and capri-
ciously."
The Union contends that the Board's use of its
traditional "remedy"-a cease-and-desist
order-for a case of such intransigence bountifully
and improperly rewards the Company for its
transgression, and cannot be maintained as a faith-
ful performance of the Board's task "of devising
remedies to effectuate the policies of the Act."
[Citation omitted.]
We conclude that the Union makes a substantial
contention, and that the Board has not, on the
record before us, provided a satisfactory justifica-
tion for its order.'
A History of the Cases
Our first decision in the instant case issued on Sep-
tember 24, 1968.4 Therein, we found relevant to a
determination that the Respondent lacked a good-faith
Thereafter, in a per curiam decision, the same court
remanded the instant case to us for further considera-
tion, in light of its decision in Tiidee.'
Before reaching the Tiidee case on remand, we first
5 174 NLRB 705 (1969)
6 International Union of Electrical, Radio and Machine Workers,
i NLR.B v Food Store Employees Union, Local No 347 [Heck's, AFL-CIO [Tiidee Products, Inc] v N.L.R B., 426 F 2d 1243 (1970)
Inc],417US 1 7 426 F 2d at 1248
2 191 NLRB 886 (1971)
8 Food Store Employees Union, LocalNo 347, Amalgamated Meat Cutters
3 Tiidee Products, Inc., 194 NLRB 1234 (1972) and Butcher Workmen of North America, AFL-CIO [Heck's, Inc] v
7 Heck's Inc., 172 NLRB 2231 NL.R B, 433 F 2d 541 (C A D C, 1970)
215 NLRB No. 142
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed the question of extraordinary remedies in the
instant case.9 Against a background of companywide
"clearly aggravated and pervasive unfair labor prac-
tices," as revealed by a number of cases, we considered
inter alia the Charging Party's (Union's) request for
monetary relief. Specifically, with respect to the request
that employees be made whole for loss of collective-
bargaining benefits, we held that we lack statutory au-
thority to grant such relief. Moreover, assuming that
we had such authority, we nevertheless concluded that
it would not be appropriate to exercise it in this case,
as the Respondent's refusal to bargain rested on
"debatable" issues; that is, upon issues which embraced
questions of credibility, as distinguished from those in
Tiidee, which were characterized as "patently frivo-
lous" and thus "clearly meritless on their face.;"
We also refused to grant the Union's request for
reimbursement of organizational costs and attorney
fees, although "not unmindful of the probability that
the Charging Party has spent more money on organiza-
tional costs and attorney's fees than it would have spent
had the Respondent not refused to bargain."10 We ob-
served:
To determine the appropriateness of these reim-
bursement requests, we must, we believe, consider
the role of a charging party under the statutory
scheme in the light of the basic principles, that
Board orders must be remedial not punitive, and
collateral losses are not considered in framing a
reimbursement order. . . . Such protection of the
public interest as may result from the charging
party's participation in litigation must be re-
garded, we believe, as incidental to its efforts to
protect its own private interests. Given this statu-
tory framework, we conclude that the public inter-
est in allowing the Charging Party to recover the
costs of its participation in this litigation does not
override the general and well-established principle
that litigation expenses are ordinarily not recover-
able. [Citations omitted.]"
We reached a contrary result when we decided the
Tiidee case, on remand, some 6 months later.12
Therein, we stated:
We find merit, however, in the Union's request
that it be reimbursed for certain litigation costs
and expenses. Normally, as the Board has recently
noted, litigation expenses are not recoverable by
the charging party in Board proceedings even
though the public interest is served when the
9 Heck's Inc, 191 NLRB 886 (1971)
10 191 NLRB at 889
11 Ibid
12 Tirdee Products , Inc, 194 NLRB 1234 (1972)
charging party protects its private interests before
the Board. [Citing Heck's ]
We agree with the court, however, that frivo-
lous litigation such as this is clearly unwarranted
and should be kept from the nation's already
crowded court dockets, as well as our own. While
we do not seek to foreclose access to the Board and
courts for meritorious cases, we likewise do not
want to encourage frivolous proceedings. The
policy of the Act to insure industrial peace
through collective bargaining can only be effec-
tuated when speedy access to uncrowded Board
and court dockets is available."
We refused to award organizational expenses, however,
as we found, as a matter of fact, that the union incurred
no excess expenses as a result of the respondent's pat-
ently frivolous objection to the election held in that case
and its subsequent refusal to bargain.
Shortly thereafter, a divided Board provided similar
relief in Tiidee ii14 Although the court's decision re-
manding that case to us contained no language specifi-
cally alluding to frivolous litigation, the court neverthe-
less remanded it for reconsideration of the request for
additional relief, in view of its decision in the earlier
Tiidee case, aforementioned (Tiidee 1). A majority of
the Board, for separately stated reasons, decided that
an expanded order should issue, requiring reimburse-
ment of litigation costs and expenses.'5
The instant case came first to the court of appeals for
review.16 The court found no meaningful distinction
between this case and our subsequent decision in
Tiidee. Further, the court viewed our decision in
Tiidee as heralding a change in our policy concerning
extraordinary remedies. The court thus stated:
We think the considerations which motivated
the Board to give this enlarged relief in Tiidee are
also operative here. Although the Board in its Sup-
plemental Decision in this case has nowhere char-
acterized the litigation as frivolous, it has used
13 Id. at 1236 Chairman Miller concurred in ordering reimbursement for
the foregoing costs and expenses as, in his view , the charging party was
forced to bring charges and otherwise to participate in extended proceedings
because of the respondent 's fnvolous resistance to the orderly application
of our Act
11 Tudee Products, Inc, 196 NLRB 158 (1972)
15 In the view of Members Fanning and Jenkins, the Respondent's con-
duct in Tirdee Ilwas "so inextricably interwined with Respondent's refusal
on frivolous grounds to bargain with the Union as to require the conclusion
that it was part of the same pattern of patently frivolous litigation for the
same unlawful object," thus justifying imposition of the expanded remedy
In Member Kennedy's view, the court of appeals found, in essence, that
Tudee I/constituted frivolous litigation , as it remanded the case to the Board
"in light of' its decision in Tudee 1 (fn 8) Chairman Miller dissented from
the majority 's decision to award costs and attorney 's fees because, in his
view, the defense asserted by the respondent in Tudee II was not frivolous
(196 NLRB at 159)
16 Food Store Employees Union, Local 347, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO [Heck's Inc.] v
NL.R B, 476 F 2d 546 (C A D C, 1973)
HECK'S INC. 767
the language of "clearly aggravated and perva-
sive" misconduct; and in its original opinion it
questioned Heck's good faith because of its "fla-
grant repetition of conduct previously found un-
lawful" at other Heck's stores. It would appear
that the Board has now recognized that employers
who follow a pattern of resisting union organiza
tion, and who to that end unduly burden the pro-
cesses of the Board and the courts, should be
obliged, at the very least, to respond in terms of
making good the legal expenses to which they have
put the charging parties and the Board. We hold
that the case before us is an appropriate one for
according such relief."
The court therefore enlarged upon the remedies we
provided, granting the Union's request for litigation
expenses and organizing costs.' 8
As previously stated, the Supreme Court, on May 20,
1974, handed down its opinion in the instant case in
which it held that the Court of Appeals for the District
of Columbia improperly exercised its authority by ex-
panding our Amended Order, without first allowing us
an opportunity to clarify seeming inconsistencies be-
tween this case and Tiidee.19 Specifically, the Court
observed
For it cannot be gainsaid that the finding here that
Heck's asserted at least "debatable" defenses to
the unfair labor practice charges, whereas objec-
tions to the representation election in Tiidee were
"patently frivolous," might have been viewed by
the Board as putting the question of remedy in a
different light. We cannot say that the Board, in
performing its appointed function of balancing
conflicting interests, could not reasonably decide
that where "debatable" defenses are asserted, the
public and private interests in affording the em-
ployer a determination of his "debatable" de-
Id at 551
1s The court enforced the Board's orders in Tiidee I and Tudee II after
those cases were consolidated for purposes of review Its opinion, handed
down on April 25, 1974, approximately 1 month before the Supreme Court's
decision herein, closely tracks its earlier opinion in the instant case
[W]e do not write today on a clean slate but are bound as to the
law by [our opinion in Heck's] That being so, we are led inexorably to
the conclusion that if the fact of [Heck's] presented an appropriate case
for award of attorney fees, then, a fortiori, the instant case does also
[502 F 2d 349, 354 ]
However, the court modified our amended orders in the Tudee cases by
deleting the requirement that the Board be reimbursed for litigation costs
It distinguished the respondent, Heck's, which demonstrated a comprehen-
sive pattern of illegal resistance to the Act resulting in a multitude of Board
proceedings, from the respondent, Tudee, which was a "stranger" to the
processes of the Board prior to the cases in question, holding that such
reimbursement was, therefore, neither justified nor within the scope of the
remand
The court also limited reimbursement to the Union by excluding the cost
of litigating the question of the appropriate remedy
19 NL R.B v Food Store Employees Union, Local No 347 [Heck's,
Inc], 417 U S 1 (1974)
fenses, unfettered by the prospect of bearing his
adversary's litigation costs, outweigh the public
interest in uncrowded dockets.20
Accordingly, the Supreme Court remanded the instant
case to us for reconciliation of those "facial inconsisten-
cies," if possible, or, for a determination that the court
of appeals was correct in viewing our Decision in Tiidee
as signalling a change in our policy concerning reme-
dies. Moreover, if the latter be true, we are required
under the remand to determine whether we would ap-
ply any new policy retroactively in this case and grant
the extraordinary remedies here in question.
Following the remand of this case, we invited state-
ments of position from the parties herein.
The Respondent contends that no additional
remedial provisions are warranted.21
The Union contends that we should grant the ex-
traordinary remedies requested by it. Specifically, it
argues that frivolous defenses to unfair labor practice
allegations are not distinguishable from conduct here
found to be clearly aggravated and pervasive, and to
have constituted a flagrant repetition of conduct pre-
viously found unlawful in other cases. In either event,
according to the Union, the Respondent falls within a
class of violators who unjustifiably burden Board and
court dockets, whether or not the Respondent is able
to present in the litigation a defense which may be
characterized as debatable.
Discussions and Conclusions
At the outset, we wish to dispel any doubt concern-
ing our policy with respect to extraordinary remedies.
We do not, by our subsequent Decisions in Tiidee,
intend any change or mod;fication of such policy as had
theretofore been articulated and applied by us. The
intendment of our Decision in Tiidee, in which we
specifically referred to our earlier Decision in the in-
stant case, was to harmonize the two cases, not to
repudiate one of them. Thus, those cases, when read
together, indicated our intent to refrain from assessing
litigation expenses against a respondent, notwithstand-
ing that the respondent may be found to have engaged
in "clearly aggravated and pervasive misconduct" or in
the "flagrant repetition of conduct previously found
unlawful," where the defenses raised by that respond-
ent are "debatable" rather than "frivolous." Likewise,
it was our intention, under similar circumstances, to
refrain from ordering reimbursement of excess organi-
zational costs although a nexus has been shown be-
tween such excess costs incurred by a union and the
unfair labor practices committed by an employer.
20 Id at 8
21 As the statements of position herein adequately present the positions
of the parties, the Respondent's request for oral argument is hereby denied
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concededly, as the Supreme Court recognized, we
have not heretofore articulated a rationale for distin-
guishing between frivolous and debatable defenses in
determining the efficacy of awarding litigation ex-
penses and organizational costs as part of an appropri-
ate remedial order . As previously stated , our Supple-
mental Decision and Amended Order in this case" is
not dispositive on the subject . Indeed , the distinction
we drew between debatable and patently frivolous is-
sues in that Decision was specifically set forth in our
discussion of the Union's request that employees be
made whole for loss of collective -bargaining benefits.
However, in our subsequent Tiidee I Decision we did
contrast that case with the instant one, and then pro-
vided for recovery of litigation expenses as a means of
discouraging frivolous litigation . As previously stated,
we did not specifically contrast debatable and frivolous
defenses , as we had done in our earlier Decision herein.
However, we did not mean by this omission to indicate
that we would permit recovery of litigation expenses
and organizing costs , where a respondent 's defenses in
a given case are "debatable," that is , for example,
where they are dependent upon resolutions of credibil-
ity. Indeed, we judged otherwise. The fact that in ret-
rospect a respondent is found to have engaged in a
flagrant repetition of conduct previously found unlaw-
ful, otherwise characterized as aggravated and perva-
sive , does not in our judgment justify our discouraging
that respondent from gaining access to an appropriate
forum where the credibility of witnesses leaves an un-
fair labor practice issue in doubt. To do so would penal-
ize a respondent and deny him protection under the law
equal to that afforded another, similarly charged with
having committed an unfair labor practice , merely be-
cause the former was no longer a "stranger" to the
Board 's processes.23
To be sure , since Congress has invested us, and not
the courts , with broad discretion in the exercise of our
remedial powers , we feel a concomitant responsibility
to be ever mindful of the manner most appropriate for
effectuating the policies of the Act in each case to come
before us. The Union's pleas for more effective reme-
dies are by no means wholly unmeritorious or without
equitable appeal. Yet such equitable considerations do
not justify , in our view , retroactive application of a
departure from our prior rulings in the case at bar.
Whether , for instance , an award to compensate for
excess organizational costs ought, in the future, to be
22 191 NLRB 886.
23 We do not imply that the need for additional or expanded remedies may
not be established by the degree of repetition of misconduct.
considered as necessary to restoring the status quo ante
in certain factual contexts rather than as an extraordi-
nary remedy to be applied only in the case involving
frivolous defenses, as we have heretofore held, is an
issue which we do not intend here to foreclose from
thorough consideration in future cases. Nor do we in-
tend to exclude from consideration whether, in deter-
mining the appropriateness of awards of attorney fees,
litigation costs , and excess organizational costs, we
ought to apply some more definitive criterion than the
distinction between "debatable" and "frivolous" de-
fenses which thus far we have been utilizing.
But here we have attempted solely to explicate the
application of principles already established, though
perhaps not heretofore explicated in detail, to the case
at bar . Such application of our existing criteria to the
case at bar is, as we understand the Supreme Court's
decision herein, the proper function for us to be per-
forming here. Having once decided the remedial issue
here in our informed discretion, it was our view that the
proper, but limited , function of the reviewing court was
to review whether we had exercised our remedial au-
thority in a proper fashion. The Supreme Court sus-
tained our contention in this regard and remanded to
us in order that we might clarify the "facial inconsisten-
cies" which the Court of Appeals for the District of
Columbia thought it perceived in our Decisions, and to
clarify whether or not our remedial policies had
changed in the manner which the court of appeals ap-
peared to have believed. By this opinion we have, we
trust, clarified the intent of our prior Decisions and
made clear that at the time we issued our Decision
herein we had not changed the intent or policies pre-
viously enunciated.
We deem it inappropriate and unfair, in this setting,
to use this case as a vehicle for changing our remedial
policies or retroactively imposing on this Respondent
a remedy we had not originally intended to apply. At
the same time, we wish to make clear in this opinion
that while we have eschewed such retroactive consider-
ation and application of remedial policy, neither do we
intend to lock in concrete any past precedent, nor to
appear to make this Decision the authoritative expres-
sion of future remedial policy.
It is, we believe , a continuing function of this ad-
ministrative agency to consider on a case -by-case basis,
in the light of both our experience and the facts of each
case , what remedy will best remedy the misconduct
found.
But, in the instant case, we remain of the view that
the remedies we applied were suitable and not in con-
flict with any policies applied in other like proceedings.