James R. Redeker

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.

About James R. Redeker
James R. Redeker represents both organized and unorganized companies in their personnel and labor relations. In that connection, he becomes directly involved in equal employment, wage and hour, occupational safety and health, collective bargaining, contract administration and National Labor Relations Act issues, representing companies before all enforcement agencies concerned with these matters as well as the courts.
Jonathan A. Segal

Duane Morris Institute along with Jonathan A. Segal would like to extend an invitation to our complimentary webinar on the Ebola virus. This will be a fast paced, 30 minute webinar. We want to help you prepare for what we hope will not occur without fomenting panic.

Thursday, November 13, 2014 3:00 – 3:30 pm EST

To Register for this Webinar, please click here.

The World Health Organization has declared the Ebola outbreak in parts of West Africa an international health emergency. As the epidemic has hit closer to home, employers are increasingly asking: What should I do? What can I do? This webinar will discuss:

  • The current status of the Ebola outbreak
  • How transmission is believed to occur
  • The symptoms of Ebola
  • Steps to minimize transmission in the workplace
  • Whether and how to impose travel restrictions
  • Whether and how to impose restrictions on employees returning from the epicenter of the epidemic
  • How to respond to an actual or suspected case of Ebola
  • What to do if employee refuses to work with or near someone they believe may have Ebola
  • Contingency planning, including telecommuting
  • Employer responsibilities under OSHA
  • Employee rights under the ADA and FMLA
  • NLRA implications with regard to changes affecting union employees
  • Special rules for healthcare workers
  • Ebola racism: potential discrimination and harassment against West Africans

As this webinar is free for clients of Duane Morris and guests of Duane Morris Institute, registration will be limited. Please sign up early as we expect this event to sell out.

Nothing in this webinar shall be construed as legal, medical or infection control advice.

About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .