Admittedly, HTH Corp, operator of the Pacific Beach Hotel in Honolulu, is a recidivist when it comes to unfair labor practices.  In the past decade, the Board has cited it for discharging an employee for union activity, maintaining an overly broad solicitation policy, bad faith bargaining, unilateral implementation of wage and benefit increases and multiple instances of retaliation for union activites.  Despite these rulings and the injunctions enforced by the federal courts, HTH still has not complied with the remedial and cease and desist orders of the Board. 

“By their actions, their words, and their contempt of court, the respondents have made plain their persistent indifference toward their responsibilities under the act,” the Board stated. 

Finding that the company’s violations “have been severe and pervasive…notwithstanding the board’s enforcement efforts,” the Board ordered HTH to pay the costs incurred by the Board and the union in pursuing the unfair labor practice allegations in the case before it.  In addition, the Board ordered the company to pay the union’s costs of bargaining after the last violations and the union’s costs of meetings and communications with employees about alleged the unfair labor practices, the costs of investigating the alleged violations and the costs of preparing the various submissions to the Board, even those associated with filings that were voluntary.

In strong dissents, the two Republican Members of the Board, while endorsing the majoirity’s anger at the conduct of the company in defiance of the Board’s actions, argued that the requirement to pay the costs of the Board and the union associated with the unfair labor practices was beyond the statutory authority of the Board and were punitive rather than remedial in nature.

Bad cases make bad law and this is a bad case.  The expansion by the Board beyond its statutory authority to order remedies, while perhaps morally justified in this case, is bad law.  In no small sense, it is a toe under the tent and the level of egregiousness justifying such extraordinary remedies will likely, with the current Board, creep lower and lower until it finally begins to affect employers guilty of far less obrobrius and pervasive conduct.

As disturbing as the incursion of the Board beyond its statutory authority in this case may be, by far the most significant and alarming aspect of this decision is the Board’s suggestion that, given the right case, it will order the payment of front pay to employees as an alternative to reinstatement to employment as a remedy.  Such an order would be a panzer strike through of the lines of statutory authority given to the Board by Congress. 

Hopefully the “right case” for such an expansion of authority will not present itself, but, with a Board majority on the look-out for one, you can bet it may be soon.