Alphabet Workers Union-Communication Workers v. NLRB

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.

2

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,

15

(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

16

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

17

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

18

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.