## Facts

- Heck’s, Inc. engaged in extensive unfair labor practices at its Clarksburg, West Virginia store.
- The NLRB issued a cease-and-desist order and required Heck’s to bargain with the Union following the Union’s election victory.
- The Union asked the NLRB to add monetary remedies: reimbursement of litigation expenses and reimbursement of excess organizing costs attributed to Heck’s misconduct.
- The NLRB denied these requests, reasoning that NLRA remedies must be remedial rather than punitive and that collateral losses should not be reimbursed as part of Board orders.
- While the matter was pending, the NLRB decided *Tiidee Products*, approving reimbursement of litigation expenses in cases involving frivolous employer litigation.
- The D.C. Circuit initially enforced the NLRB’s order but remanded for reconsideration of the Union’s monetary-remedy request.
- On remand, the NLRB again refused to award litigation expenses or excess organizing costs.
- The D.C. Circuit then enforced the amended order but enlarged it by adding cost-shifting and extraordinary organizing-cost reimbursement, relying on NLRA §§ 10(e) and 10(f).
- The Supreme Court granted certiorari to determine whether the court of appeals exceeded its authority by imposing these added remedies without remanding to the NLRB.

## Issues

1. Whether a court of appeals may enlarge an NLRB order under NLRA §§ 10(e) and 10(f) to impose monetary remedies for litigation expenses and extraordinary organizing costs without first remanding to the NLRB to consider application (and retroactivity) of its own remedial policies.

## Decision

- The Supreme Court unanimously reversed the D.C. Circuit and remanded.
- The Court held that the court of appeals exceeded its authority by adding monetary remedies to the NLRB’s order without first remanding to the Board.
- The Court required that the NLRB be given the initial opportunity to determine how its policies—potentially including *Tiidee Products* and any retroactive application—bear on the requested remedies.
- The Court noted that identifying tension between the Board’s decision and later agency precedent calls for remand for agency explanation or reconsideration, not judicial imposition of a new remedy.

## Legal Principles

- Although NLRA §§ 10(e) and 10(f) permit courts of appeals to enforce and “modify” NLRB orders, courts may not substitute their remedial judgment for the Board’s on matters committed to the Board’s discretion.
- The NLRB has primary responsibility for shaping NLRA remedies in the public interest; remedies involving cost-shifting and similar measures implicate administrative policy choices, including whether relief is remedial or punitive.
- When there is a substantial possibility that intervening agency decisions or policies could affect the proper outcome, the proper course is to remand to the agency to decide in the first instance, including questions of retroactivity.

## Conclusion

The Supreme Court held that a court of appeals cannot add monetary remedies to an NLRB order based on perceived shifts in Board policy without remanding to allow the NLRB to decide, in the first instance, whether and how its remedial policies apply and whether they should apply retroactively.


NLRB v. Food Store Emps. Union, Loc. 347 (Heck's), 417 U.S. 1 (1974)