Alphabet Workers Union-Communication Workers of America, Local 9009 v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 27, 2025 Decided April 22, 2025
No. 24-1003
ALPHABET WORKERS UNION-COMMUNICATION WORKERS OF
AMERICA, LOCAL 9009,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION
AND GOOGLE LLC,
INTERVENORS
Consolidated with 24-1014, 24-1016, 24-1021, 24-1022
On Petitions for Review and Cross-Applications
for Enforcement of an Order of the
National Labor Relations Board
Karla M. Campbell argued the cause for petitioner
Alphabet Workers Union-Communication Workers of
America, Local 9009. With her on the briefs was Michael C.
Iadevaia.

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Matthew J. Silveira argued the cause for petitioners
Cognizant Technology Solutions U.S. Corporation and Google
LLC. With him on the briefs were John Henry Thompson,
Cameron W. Fox, and Carlos Torrejon.
Jordan L. Von Bokern, Pratik A. Shah, James C. Crowley,
and Stephanie Martz were on the brief for amici curiae
Chamber of Commerce of the United States of America, et al.
in support of petitioners.
Joel A. Heller, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick, Deputy
Associate General Counsel, David Habenstreit, Assistant
General Counsel, and Elizabeth A. Heaney, Supervisory
Attorney.
Matthew J. Silveira, John Henry Thompson, Cameron W.
Fox, and Carlos Torrejon were on the brief for intervenors
Cognizant Technology Solutions U.S. Corporation and Google
LLC in support of respondent.
Karla M. Campbell and Michael C. Iadevaia were on the
brief for intervenor Alphabet Workers Union-Communication
Workers of America, Local 9009 in support of respondent.
Before: HENDERSON, MILLETT and WALKER, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: This case
arises from a dispute about the National Labor Relations
Board’s (NLRB or Board) rule governing when one entity is

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considered a joint employer of another entity’s employees.
Applying its rule, the Board determined that Google was a joint
employer of Cognizant employees who worked on Google’s
YouTube Music platform and ordered both companies to
bargain with the employees’ union, the Alphabet Workers
Union–Communication Workers of America, Local 9009
(AWU or the Union).
To challenge that decision, Google and Cognizant refused
to bargain, and the NLRB concluded that the employers’
refusal violated the National Labor Relations Act (NLRA or
Act). The employers petitioned for review, arguing that they
were not joint employers. However, the contract under which
the bargaining unit employees provided services to Google
expired a month later, rendering moot Google’s and
Cognizant’s petitions and the Board’s cross-applications for
enforcement.
The Union also petitioned for review, contending that the
NLRB’s remedies did not go far enough. By not moving for
reconsideration below, however, the Union fell short of the
Act’s jurisdictional exhaustion requirement regarding its
challenge to the Board’s decision to sever for further
consideration a compensatory remedy that would require
overruling its precedent. The Union’s requests for additional
prospective remedies are moot because the contract ended. The
NLRB did not abuse its discretion by otherwise ordering only
the customary remedies.
Accordingly, we dismiss Google’s and Cognizant’s
petitions and the Board’s cross-applications as moot and we
vacate the order below. Further, we dismiss as jurisdictionally
barred the part of AWU’s petition seeking review of the
NLRB’s decision to sever the issue of a make-whole remedy
for employees and dismiss as moot those parts of AWU’s

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petition seeking prospective remedies. We deny the remainder
of AWU’s petition.
I.
A.
Google LLC (Google) is an internet-technology company
that operates, among other services, YouTube Music.
Cognizant Technology Solutions U.S. Corporation (Cognizant)
is a professional-services company that provides digital and
consulting services. Google’s YouTube Music Content
Operations department (MCO) is responsible for YouTube
Music data quality. On July 1, 2019, Google and Cognizant
entered into a contract for Cognizant to provide MCO-related
services to Google through a team based in Austin, Texas. A
subset of that team is the bargaining unit at issue here.
Google and Cognizant extended the contract multiple
times before it expired in February 2024.1 The contract’s
expiry brought to a close the MCO project on which the Austin-
based Cognizant employees had been working. Under
Cognizant’s employment policies, after a project ends
employees have five weeks to apply for another project before
being separated from the company. At oral argument, counsel
for Google and Cognizant stated that he believed none of the
bargaining unit employees remains at Cognizant. Under a
different contract, Cognizant now provides services to Google
overseas, including work formerly done by the Austin-based
MCO team.
1 Specifically, the contract was extended in May 2020 until
February 2021, in February 2021 until February 2022, in March 2022
until February 2023, and once more before it expired in February
2024.

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B.
While the contract was in effect, in October 2022 the
Union petitioned the NLRB, seeking to represent the
bargaining unit and naming Google and Cognizant as joint
employers under 29 C.F.R. § 103.40(a) (2020). That rule
provides that joint-employer status may be established if two
entities “share or codetermine the employees’ essential terms
and conditions of employment,” which requires exercising
“substantial direct and immediate control” of one or more of
those terms. Id. Essential terms and conditions under the rule
include wages, benefits, hours, hiring, discharge, discipline,
supervision and direction. Id. § 103.40(b).
After hearings, the Regional Director found that Google
and Cognizant were joint employers in a Decision and
Direction of Election (DDE) issued in March 2023. Bargaining
unit employees voted unanimously to be represented by the
Union in a Board-directed election in April 2023 and the
Regional Director certified the Union in May 2023. Google
and Cognizant then requested Board review of the DDE. In
July 2023, the Board denied their requests because it agreed
with the Regional Director that Google exercised substantial
direct and immediate control of supervision, benefits and
hours. To contest the Union’s certification, Google and
Cognizant refused to bargain. As a result, following a charge
filed by AWU, the Board’s General Counsel issued a complaint
in September 2023 alleging that Google and Cognizant’s
refusal violated sections 8(a)(1) and 8(a)(5) of the Act.2
2 “Although a Board’s decision in a certification proceeding is
not directly reviewable in the courts, an employer may challenge a
certification decision indirectly by refusing to bargain with the Union
and then raising its election objection in the ensuing unfair labor

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Separately, the Union filed eight other unfair labor practice
charges against Google and Cognizant, including allegations of
retaliatory firing of certain bargaining unit members before the
contract expired and failure to bargain over the effects of the
contract’s expiry. Those charges are not part of this appeal.
C.
In the proceedings before the Board, the General Counsel
sought several remedies, including an order requiring Google
and Cognizant to bargain in good faith, an extension of the
certification year and a make-whole remedy for employees.
AWU joined those requests for relief but also asked the Board
to require a bargaining schedule, notice reading, posting of
employee rights, mandatory training and compensatory relief
for AWU itself.
In January 2024, the Board issued a decision and order
(D&O) concluding that Google and Cognizant had violated the
Act by refusing to bargain and ordering them to bargain with
the Union and post an employee rights notice. J.A. 25–26. The
NLRB also construed the Union certification period to begin
on the date that Google and Cognizant start to bargain in good
faith. J.A. 25 (citing Mar-Jac Poultry Co., 136 N.L.R.B. 785
(1962)). Because ordering a make-whole remedy for
practice proceedings.” Can. Am. Oil Co. v. NLRB, 82 F.3d 469, 471
n.1 (D.C. Cir. 1996) (citing Boire v. Greyhound Corp., 376 U.S. 473,
476–77 (1964)). An employer commits an unfair labor practice in
violation of section 8(a)(5) of the Act by “refus[ing] to bargain
collectively with the representatives of his employees.” 29 U.S.C.
§ 158(a)(5). A violation of section 8(a)(5) is also a violation of
section 8(a)(1), which makes it unlawful for an employer to interfere
with, restrain or coerce employees in the exercise of their statutory
labor rights. NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109,
112 n.1 (D.C. Cir. 2012).

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employees would require overruling Ex-Cell-O Corp.,
185 N.L.R.B. 107 (1970), and creating a methodology for
calculating such a remedy, the Board severed that issue and
retained it for further consideration.
Days after the Board issued its D&O, all parties petitioned
for review. Both Google and Cognizant challenge the joint-
employer determination, the Union contests the scope of the
remedy and the Board cross-applies for enforcement.
II.
A.
“Before reaching the merits, we must first address whether
we have jurisdiction.” Planned Parenthood of Wis., Inc. v.
Azar, 942 F.3d 512, 516 (D.C. Cir. 2019) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). No party
has raised mootness but “we have an independent obligation to
ensure that appeals before us are not moot.” Id. (internal
quotation marks omitted). That is so because “[w]e have
jurisdiction only over live cases or controversies.” Sands v.
NLRB, 825 F.3d 778, 782 (D.C. Cir. 2016) (citing U.S. CONST.
art. III § 2, cl. 1). “An appeal should be dismissed as moot
when, by virtue of an intervening event, a court of appeals
cannot grant any effectual relief whatever.” Id. (cleaned up)
(quoting Calderon v. Moore, 518 U.S. 149, 150 (1996) (per
curiam)); see also Pub. Citizen, Inc. v. FERC, 92 F.4th 1124,
1128 (D.C. Cir. 2024) (“A case is moot if a decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.”) (internal
quotation marks omitted).
The Board and the Union seek to have the D&O enforced
and Google and Cognizant seek to have the D&O vacated.
However, the expiry of the Google-Cognizant contract means

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that there is no longer any relationship between the two
companies that could support the joint-employer finding upon
which the D&O is premised. Granted, “the possibility of . . . a
remedial notice usually keeps an unfair labor practice case
from becoming moot, even if the parties resolve the underlying
dispute.” Sands, 825 F.3d at 782–83 (citing Am. Fed’n of Gov’t
Emps., AFL–CIO, Loc. 3090 v. FLRA, 777 F.2d 751, 753–54
n.13 (D.C. Cir. 1985)). That is so even if the injured employees
no longer have an interest in the case—arguably as here, where
no bargaining unit employees are still at Cognizant—because
the union has a “derivative right” that gives it a “personal and
particular ongoing interest in the posting.” Id. at 783. But that
scenario “assume[s] an ongoing relationship between the
petitioner and the company . . . that committed a labor
violation.” Id. Here, the Google-Cognizant contract is over so
there can be no ongoing relationship between AWU and the
two entities qua joint employers of these bargaining unit
employees.
Granted, we have also said that “changed circumstances”
do not “[g]enerally” render “a Board order moot.” NLRB v.
Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C. Cir.
1980) (citing NLRB v. Raytheon Co., 398 U.S. 25, 27–28
(1970) (applying voluntary-cessation doctrine to hold that
compliance with NLRB order did not render case moot)).
However, that remark came in the context of determining the
remedies the Board could impose after the employer that had
violated the Act sold the unionized plant to an unrelated entity.
See id. We held that, although the NLRB could not order the
seller to bargain with the union, it could order the seller to cease
and desist from unfair labor practices and to mail a notice to its
former employees or order the successor company to remedy
the unfair labor practices. Id. (citing Golden State Bottling Co.
v. NLRB, 414 U.S. 168, 176–77 (1973)). The Board’s order
could therefore be “modified” and still enforced. Id. at 7–8.

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At oral argument and by letter relying on Maywood Plant,
the NLRB offered to propose modifications to its order to
reflect the changed circumstances. But in Maywood Plant the
employer had engaged in the underlying unfair labor practice
of orchestrating a decertification campaign and then
unilaterally changing employment benefits. Id. at 4–5. The
only unfair labor practice on review in this petition is Google’s
and Cognizant’s refusal to bargain arising out of a test-of-
certification case, and any joint-employer relationship is now
over. The Union’s counsel also highlighted that it alleged
before the Board other unfair labor practices by Google and
Cognizant but those are not before us. If the NLRB determines
that other unfair labor practices occurred, it can readopt in part
or in full its joint-employer findings for liability to run against
Google as well as Cognizant.
Google and Cognizant along with the Board also
contended at oral argument that the case is not moot because
the Board could still impose a make-whole remedy for the
failure to bargain if it decides to overturn Ex-Cell-O and
promulgate a methodology for calculating such a remedy.
However, there must be a “more-than-speculative chance” of
that happening for the case not to be moot. Pub. Citizen, 92
F.4th at 1128. Given the “substantial uncertainty surrounding”
the NLRB’s internal deliberations on whether to overturn
longstanding precedent and fashion a new remedy, “there is no
reason to believe” that it will do so “in the foreseeable future,”
or that the Board would choose to do so in an otherwise moot
case. Id. at 1130. The Google-Cognizant petitions and Board
cross-applications for enforcement are therefore prima facie
moot.

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B.
The next question is whether “even if the case is
superficially moot, it falls within two exceptions to the
doctrine—the common one for ‘actions capable of repetition
yet evading review,’ and the related but narrower one
addressing a defendant’s voluntary cessation of the [relevant]
conduct.” Clarke v. United States, 915 F.2d 699, 703 (D.C.
Cir. 1990) (en banc). The parties opposing mootness—here,
all parties—have the burden of proving that a mootness
exception applies. Reid v. Hurwitz, 920 F.3d 828, 832 (D.C.
Cir. 2019) (citing Honeywell Int’l v. Nuclear Regul. Comm’n,
628 F.3d 568, 576 (D.C. Cir. 2010)).
The capable-of-repetition-yet-evading-review exception
requires that (1) the challenged action be too short in duration
to be fully litigated before its cessation or expiration and (2)
there be a reasonable expectation that the same complaining
party would face the same action again. See Clarke, 915 F.2d
at 704 (citing Murphy v. Hunt, 455 U.S. 478, 482 (1982)). “In
estimating the likelihood of an event’s occurring in the future,
a natural starting point is how often it has occurred in the past.”
Id. This is the only time that the NLRB has applied its rule and,
“with only one instance, there is no way to generalize.” Id. at
705. As in Clarke, we have no reason to expect to see this joint-
employer relationship again, especially because Google and
Cognizant can avoid problems by drafting future contracts to
steer clear of the joint-employer line. Id. at 704–05.
Moreover, “a legal controversy so sharply focused on a
unique factual context will rarely present a reasonable
expectation that the same complaining party would be
subjected to the same actions again.” J.T. v. District of
Columbia, 983 F.3d 516, 524 (D.C. Cir. 2020) (cleaned up)
(citing PETA v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005));

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see also United Bhd. of Carpenters v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n, 721 F.3d 678, 689 (D.C. Cir.
2013) (“In an ordinary contract dispute, the uniqueness of those
terms might make the case so ‘highly fact-specific’ that it
would not likely recur.”). The joint-employer issue here
involves a unique factual context, as shown by the four days of
hearings before a Board hearing officer. In any event, this
precise joint-employer question may yet be fully litigated if the
NLRB were to determine that there was another unfair labor
practice relating to this Google-Cognizant contract and then
readopted its joint-employer decision to find Google liable as
well as Cognizant. Cf. Alvarez v. Smith, 558 U.S. 87, 93–94
(2009) (holding in moot case where plaintiffs sought
declaratory and injunctive relief that challenged practices did
not evade review because other parties could bring damages
actions). Therefore, the capable-of-repetition-yet-evading-
review exception does not apply.
The voluntary-cessation doctrine focuses on preventing a
party “from manipulating the judicial process by voluntarily
ceasing the complained of activity, and then seeking a
dismissal of the case, thus securing freedom to ‘return to his
old ways.’” Clarke, 915 F.2d at 705; see also Sands, 825 F.3d
at 782–85 (holding stringent standard for overcoming
voluntary-cessation doctrine was met after union refunded
employee’s dues and there was no reason to conclude
employee would return to store). Here, the Regional Director
issued the DDE on March 3, 2023, around the time of year
when—until that year—Google and Cognizant had been
renewing their contract on an annual basis. The coincidental
timing is troubling. However, we have said that the termination
of a contract “that expired of its own terms cannot be viewed
as cessation of conduct,” even if the contract previously had
“brief extensions.” Clarke, 915 F.2d at 705. Essentially,
Google and Cognizant “shot an arrow into the air, and it fell to

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earth. It stretches the words beyond recognition to say that
[they] ‘voluntarily ceased’ anything merely because [they]
refrained from shooting some more arrows after the first
landed.” Id.
The voluntary-cessation doctrine, moreover, “does not
apply automatically whenever the prospect of mootness is
raised by a party’s voluntary conduct. Instead, courts have
declined to apply the doctrine when the facts do not suggest
any ‘arguable manipulation of our jurisdiction.’” Pub. Citizen,
92 F.4th at 1128 (citing City News & Novelty, Inc. v. City of
Waukesha, 531 U.S. 278, 284 (2001)). Here, as in Public
Citizen and City News, the parties that allegedly voluntarily
ceased the conduct “oppose[] mootness,” which counsels
against applying the exception. Id. at 1129. That we raised
mootness sua sponte “further mitigates any possibility that
[Google and Cognizant are] attempting to manipulate our
jurisdiction.” Id. Thus, no mootness exception applies.
C.
Because the case is moot, we must next decide whether to
vacate the Board’s order. See Sands, 825 F.3d at 785. The
“established practice” if a case is moot is “to reverse or vacate
the judgment below.” Id. (quoting Humane Soc’y of U.S. v.
Kempthorne, 527 F.3d 181, 184 (D.C. Cir. 2008)). That
practice “applies equally to unreviewed administrative orders.”
Id. (citing A.L. Mechling Barge Lines, Inc. v. United States, 368
U.S. 324, 329 (1961)). The purpose of vacatur “is to clear the
path for future litigation of the issues and eliminate a judgment
review of which was prevented through happenstance.” Id.
(cleaned up) (quoting U.S. Bancorp Mortg. Co. v. Bonner, 513
U.S. 18, 22–23 (1994)).
“Because vacatur is equitable in nature, we look to notions
of fairness when deciding whether to use the remedy.” Id.

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Courts usually vacate a judgment if mootness is the result of
“circumstances unattributable to any of the parties” or “the
unilateral action of the party who prevailed in the lower court.”
Bancorp, 513 U.S. at 23. However, “vacatur is typically
inappropriate” when the party that lost below “‘voluntarily
forfeited’ a remedy in court” by taking action to moot the case.
Sands, 825 F.3d at 785 (quoting Bancorp, 513 U.S. at 22–25).
The Bancorp rationale “is that litigants should not be able to
manipulate the judicial system” by “rolling the dice” below and
then using vacatur to “wash away any unfavorable outcome.”
Humane Soc’y, 527 F.3d at 186 (alterations omitted) (quoting
Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346,
351 (D.C. Cir. 1997)). We have “interpreted Bancorp
narrowly,” weighing whether “a litigant is attempting to
manipulate the courts to obtain the relief it was not able to win
[below].” Id. at 185, 188.
Put otherwise, denying vacatur when “the [losing party]
has caused the [mootness]” is “only applying a milder version
of the voluntary-cessation doctrine: the case is not live enough
for adjudication on the merits, but because of fears of
manipulation by the losing party the court denies it the benefit
of vacatur.” Clarke, 915 F.2d at 707 (emphasis added). For
the reasons explained above, “no version of the voluntary
cessation doctrine is applicable here.” Id. The Google-
Cognizant contract expired on its own terms. And neither
Google nor Cognizant raised mootness—indeed, all parties
opposed mootness at oral argument. See Alvarez, 558 U.S. at
91, 97 (vacating judgment below in case mooted by resolution
of state court proceedings where Court raised mootness sua
sponte and both parties argued against it at oral argument).
Finally, vacatur will “open[] the door to reconsideration of
the merits of the legal issues in this case”—namely, the
correctness of the joint-employer determination—thereby

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“serv[ing] the public interest.” Sands, 825 F.3d at 786.
Accordingly, we vacate the Board’s order.
III.
We next consider the Union’s separate petition for review
of the NLRB’s remedies in this case. AWU argues that the
Board erred by severing for later resolution the question of
monetary relief for the bargaining unit employees and by
denying AWU’s requests for additional non-monetary and
monetary relief without explanation. We lack jurisdiction to
address the first argument. As to the second argument, the
Union’s requests for prospective relief beyond what the Board
granted are moot because the contract is over and the Union is
incorrect that the Board abused its discretion by not granting
retrospective monetary relief to the Union itself.
A.
The Union argues for the first time in its petition for review
that the NLRB erred by severing the employee make-whole
remedy issue for further consideration. But “[o]ur jurisdiction
is limited in the following respect: ‘No objection that has not
been urged before the Board, its member, agent, or agency,
shall be considered by the court, unless the failure or neglect to
urge such objection shall be excused because of extraordinary
circumstances.’” United Food & Com. Workers Union, Loc.
400 v. NLRB, 989 F.3d 1034, 1037 (D.C. Cir. 2021) (quoting
29 U.S.C. § 160(e)); see also Chevron Mining, Inc. v. NLRB,
684 F.3d 1318, 1328–30 (D.C. Cir. 2012) (explaining that 29
U.S.C. § 160(e) is jurisdictional).
AWU failed to move for reconsideration of the Board’s
decision, preventing us from reviewing this objection unless
extraordinary circumstances excuse that failure. See Cobb
Mech. Contractors, Inc. v. NLRB, 295 F.3d 1370, 1377–78,

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(D.C. Cir. 2002) (citing Int’l Ladies’ Garment Workers’ Union
v. Quality Mfg. Co., 420 U.S. 276, 281 n. 3 (1975)). In
response, the Union contends that we may nevertheless
exercise review because it is challenging “the Board’s
procedural move” to sever the remedy, which does not
implicate “the sort of substantive labor law question the Board
must address in the first instance.” AWU Pet’rs Reply Br. 9.
The Union relies on SSC Mystic Operating Co. v. NLRB,
801 F.3d 302 (D.C. Cir. 2015), in which we reaffirmed that “a
challenge to agency action based on the agency’s lack of
authority to take any action at all need not be raised below and
may be made for the first time on appeal.” Id. at 308; see also
Noel Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013)
(holding that “questions that go to the very power of the Board
to act and implicate fundamental separation of powers concerns
. . . are governed by the ‘extraordinary circumstances’
exception to the 29 U.S.C. § 160(e) requirement”). But the
Union is not challenging the NLRB’s authority to sever a
remedy for further consideration; instead, it is arguing that the
Board “acted arbitrarily by doing so.” AWU Pet’rs Reply Br.
8–9. SSC Mystic is therefore inapposite and we must dismiss
that portion of AWU’s petition.
B.
In addition to the remedies requested by the General
Counsel, the Union asked the NLRB to impose a bargaining
schedule, notice reading, posting of employee rights and
mandatory training as well as to award prospective bargaining-
related costs and retrospective compensatory relief for the
Union itself. The Union’s requests for prospective remedies
are mooted by the contract’s expiry for the reasons explained
above, which the Union’s counsel appeared to concede at oral
argument. That leaves only the retrospective remedy of

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compensatory relief for AWU itself—specifically, a request for
attorneys’ fees and costs as well as damages for reputational
and other harms—to address.
Because “the choice of remedies is primarily within the
province of the Board,” we review its choice for abuse of
discretion. Hosp. of Barstow, Inc. v. NLRB, 897 F.3d 280, 290
(D.C. Cir. 2018) (quoting United Steelworkers of Am. v. NLRB,
376 F.2d 770, 773 (D.C. Cir. 1967)); see also Fallbrook Hosp.
Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015) (“The
Board’s discretion in fashioning remedies under the Act is
extremely broad and subject to very limited judicial review.”).
The abuse of discretion standard applies both to protests that
the NLRB “goes too far” and that it “does not go far enough.”
United Steelworkers, 376 F.2d at 772.
In support of its argument that the Board abused its
discretion as to those requested remedies, the Union relies
primarily on UAW v. NLRB, 455 F.2d 1357, 1369 (D.C. Cir.
1971). In that case, UAW asked for access to the company’s
plant to speak to members, use of bulletin boards and
reimbursement of negotiation and litigation costs. Id. A
footnote to the Trial Examiner’s decision stated that UAW’s
“request in its brief that Respondent be required to reimburse it
for costs in attempting to negotiate an agreement and for
prosecuting this case is rejected as improper or unnecessary to
effectuate the purposes of the Act.” Id. We held that such a
“conclusory statement, standing alone, does not satisfy section
557 of the Administrative Procedure Act,” which requires
stating “the reasons or basis” for an agency’s conclusions. Id.
(citing 5 U.S.C. § 557(c)(A)). “Although the requested relief
is unusual, that alone does not excuse the failure to justify its
denial.” Id. at 1370; see also Textile Workers Union of Am. v.
NLRB, 475 F.2d 973, 976 (D.C. Cir. 1973) (per curiam)
(granting petition for review and remanding where Board failed

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to explain why employer’s “history of many years of
obstinance” did not “warrant the broader relief that the Union
ha[d] requested”).
However, UAW was not a standard test-of-certification
case, in which the “usual order” is to require bargaining and
posting of a notice. NLRB v. Jones & Laughlin Steel Corp.,
331 U.S. 416, 420 (1947) (citing Jones & Laughlin Steel Corp.,
53 N.L.R.B. 1046, 1047 (1943)). Instead, the Board had found
that the employer had engaged in numerous violations of
sections 8(a)(1), 8(a)(3) and 8(a)(5) of the Act. See UAW, 455
F.2d at 1362. Equally, in Textile Workers the Court
emphasized that the NLRB’s remedy focused too narrowly on
the facts of that particular case despite the employer’s “history
of recalcitrance.” 475 F.2d at 976. There are no similar
circumstances here, despite AWU’s bald assertion that
Google’s and Cognizant’s conduct is “egregious.” AWU
Pet’rs Br. 32. Thus, the Union has not shown “that the
traditional relief provided here will be so ineffective to enforce
the policies of the Act as to be insufficient as a matter of law.”
Amalgamated Clothing Workers of Am. v. NLRB, 371 F.2d 740,
746 (D.C. Cir. 1966).
Indeed, the Board imposed the standard remedies, ordering
Google and Cognizant to bargain with the Union and to post a
notice of employee rights and construing the certification
period to begin on the date that Google and Cognizant start to
bargain in good faith. “Having ordered the customary remedies
for test-of-certification cases and severed the [monetary relief]
matter for future consideration, [the NLRB] decline[d] to order
. . . the additional remedies sought by the Union.” J.A. 26 n.6.
The Board was not obligated to explain its decision not to go
beyond traditional relief. Nat’l Ass’n of Letter Carriers, AFL–
CIO, Branch 3126 v. NLRB, 281 F.3d 235, 238 (D.C. Cir.
2002) (“A standard remedy . . . does not have to be explained

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anew in every case; it is the norm.”). Accordingly, the Board
did not abuse its discretion.
* * *
For the foregoing reasons, we dismiss Google’s and
Cognizant’s petitions and the NLRB’s cross-applications for
enforcement as moot and we vacate the Board’s D&O. Further,
we dismiss as jurisdictionally barred the part of AWU’s
petition seeking review of the Board’s decision to sever the
issue of a make-whole remedy as to the bargaining unit
employees and dismiss as moot those parts of AWU’s petition
requesting prospective remedies. We deny the AWU’s request
for retrospective compensatory relief for the Union itself.
So ordered.

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