Frankl v. HTH Corp. (650 F.3d 1334, 2011)

OPINION

BERZON, Circuit Judge:

This appeal of an injunction issued pursuant to § 10®, 29 U.S.C. § 160®, of the National Labor Relations Act, 29 U.S.C. § 151 et seq., (the “NLRA” or the “Act”), raises two questions, one difficult, the other relatively straightforward.

The straightforward question is whether the injunction should be affirmed on its merits. We have little difficulty concurring in the District Court’s assessment that the National Labor Relations Board (the “Board” or the “NLRB”) was likely to determine, and be affirmed by this Court in so determining, that appellants (the “Hotel”) engaged in violations of § 8(a)(1), (3) and (5) of the Act by refusing to bargain in good faith and excluding five union activists from the workforce. The District Court likewise did not abuse its discretion in concluding that the other requisites for § 10(j) relief were met.

The somewhat more difficult question is the logically prior one of whether the District Court had the power to issue the injunction. In 2007, the Board assigned the authority to approve § 10(j) petitions to the General Counsel of the Board. See Minutes of Board Action, Dec. 20, 2007. Pursuant to this delegation, the General Counsel approved the filing of the instant § 100") petition. The Hotel argues that the Act requires that petitions for § 10(j) relief be individually approved by the Board before they are filed with a district court. Because the Regional Director did not obtain such approval, the Hotel argues, he did not have authority to petition for the injunction, and the District Court was without the power to grant it. Like all the federal courts of appeals to have addressed the question, we disagree. See Osthus v. Whitesell Corp., 639 F.3d 841, 844-45 (8th Cir.2011); Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 851-52 (5th Cir.2010); Muffley v. Spartan Mining Co., 570 F.3d 534, 539-40 (4th Cir.2009).

I. BACKGROUND

When the General Counsel of the National Labor Relations Board issues a complaint alleging an unfair labor practice and commences proceedings before the Board, it takes considerable time — sometimes years — for the administrative process to conclude. But “[tjime is usually of the essence [in labor disputes].” Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 455 n. 3 (9th Cir.1994) (en banc) (quoting S.Rep. No. 80-105, at 8 (1947) (second alteration in original)). As a result of “the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals ... [i]t [may be] possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible [for the Board] to restore ... the status quo.” Id. (quoting S.Rep. No. 80-105, at 27 (1947)).

To remedy this problem, Congress added § 10(j) to the NLRA, as part of a comprehensive labor law reform in 1947. See Labor-Management Relations Act, 1947 (the “Taft-Hartley Act”), Pub.L. No. 80-101, § 101, 61 Stat. 136, 149, codified at 29 U.S.C. § 160(j). Section 10(j) provides: (j) Injunctions

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

29 U.S.C. § 160(j). The purpose of a § 10(j) injunction is “to protect the integrity of the collective bargaining process and to preserve the Board’s remedial power while it processes” an unfair labor practice complaint. Miller, 19 F.3d at 459-60.

The circumstances leading to the appli-. cation for a § 10(j) injunction in this case are as follows: In 2002, the International Longshore and Warehouse Union, Local 142 (the “Union”) began to organize employees at the Pacific Beach Hotel in Waikiki, Honolulu. A representation election was held in July, 2002, but the Board set it aside, finding that the Hotel had “engaged in objectionable conduct by coercively interrogating employees and maintaining an overly broad no-solicitation policy.” HTH Corp., 342 N.L.R.B. 372, 374 (2004). After a second election, preceding which, the Board found, the Hotel again engaged in objectionable conduct, see generally Pac. Beach Corp., 344 N.L.R.B. 1160 (2005), the Union was certified, prevailing by a one-vote margin.

Bargaining between the Union and the Hotel did not go well. Between January 22, 2007 and August 29, 2008, the Union filed numerous unfair labor practice charges with the Regional Director of Region 20 of the Board (the “Regional Director” or the “Director”). The Director investigated the charges and issued an unfair labor practice complaint.

On September, 30, 2009, after thirteen days of hearings, a Board Administrative Law Judge (“ALJ”) determined that the Hotel had violated § 8(a)(1), (3) and (5) of the Act and recommended that the Board order the Hotel to cease and desist from various unfair labor practices and to take other remedial actions. The Hotel filed extensive exceptions to the ALJ’s ruling with the Board, and the Director filed limited ones. The case remains pending before the Board.

On January 7, 2010, the Director filed a petition in the District Court for injunctive relief under § 10(j) of the Act. In accordance with the Board’s 2007 delegation of litigation authority, the filing of the petition was approved by the Board’s General Counsel but not by the members of the Board itself. The Hotel opposed the petition on its merits but also moved to dismiss the complaint for lack of subject-matter jurisdiction, contending that the Director’s failure to obtain the Board’s approval to file the § 10(j) petition deprived the District Court of jurisdiction. Siding with the Director, the District Court issued an injunction requiring the Hotel to bargain with the Union, to reinstate certain discharged employees, to rescind unilateral changes to the bargaining unit members’ terms and conditions of employment, and to take various other remedial measures.

The Hotel appealed. On June 14, 2011, while this appeal was pending, the Board issued its decision in the underlying action. See HTH Corp., 356 N.L.R.B. No. 182 (2011). It affirmed the ALJ’s rulings, findings, and conclusions, and it modified the ALJ’s recommended remedies in respects not relevant here.

II. MOOTNESS

Before turning to the substantive issues at stake in this case, we must first address the issue of mootness. A Section 10© proceeding, in which the Board seeks injunctive relief to protect the lawful status quo while litigation is pending, can become moot when the NLRB issues its decision in the underlying administrative proceeding. See Miller, 19 F.3d at 453. Here, however, the Board filed in the district court a motion for civil contempt on February 14, 2011 — while the Hotel was subject to the District Court’s injunction, after this appeal was filed, and before the Board issued its order. The original contempt motion sought both coercive and compensatory relief, including back pay for an employee allegedly terminated in violation of the injunction and the Board’s attorneys’ fees and costs incurred in connection with the contempt proceeding. After the Board issued its decision, the Director notified the District Court that he no longer sought coercive remedies and, receiving an extension of time to file an amended civil contempt motion, withdrew the original contempt motion. On July 8, 2011, the Board filed an amended civil contempt motion seeking compensatory relief.

We hold that this appeal is not moot because its resolution is crucial to a pending claim for retrospective monetary relief sought by the Board against the Hotel in a civil contempt proceeding. See Trans Int’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 650 F.2d 949, 955 (9th Cir. 1980). “Despite superseding events, an issue is not moot if there are present effects that are legally significant.” Jacobus v. Alaska, 338 F.3d 1095, 1104 (9th Cir.2003). The validity of a civil contempt adjudication turns on the legitimacy of the underlying injunction. See, e.g., Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1142-43 (9th Cir.2003); see also United States v. United Mine Workers, 330 U.S. 258, 294-95, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The legitimacy of the District Court’s injunction, in turn, depends on whether the District Court abused its discretion in granting the Board’s § 10© petition. It also depends on the antecedent question whether the Board has authority to assign § 10© decisions to the General Counsel. Accordingly, we hold that neither the delegation issue nor the merits of the injunction are moot. Cf. Trans Int’l Airlines, 650 F.2d at 957 (holding that alternative grounds for the injunction underlying a contempt proceeding remained live on appeal and noting a reluctance to fragment an appeal into “live” and “moot” issues).

III. THE BOARD’S AUTHORITY TO ASSIGN § 10(j) DECISIONS TO THE GENERAL COUNSEL

The Hotel contends that each petition for relief under § 10© must be individually authorized by a quorum of NLRB members. Because the particular petition in this case was not so authorized, the Hotel maintains, the petition was improperly before the District Court and should have been dismissed for want of subject-matter jurisdiction.

A.

1.

The circumstances surrounding the 2007 delegation of litigation authority to the General Counsel here contested was described recently by the Supreme Court:

As 2007 came to a close, the Board found itself with four members and one vacancy. It anticipated two more vacancies at the end of the year, when the recess appointments of Members Kirsanow and Walsh were set to expire, which would leave the Board with only two members — too few to meet the Board’s quorum requirement. The four sitting members decided to take action in an effort to preserve the Board’s authority to function. On December 20, 2007, the Board made two delegations of its authority, effective as of midnight December 28, 2007. First, the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board. Second, the Board delegated “to Members Liebman, Schaumber and Kirsanow, as a three-member group, all of the Board’s powers, in anticipation of the adjournment of the 1st Session of the 110th Congress.”

On December 31, 2007, Member Kirsanow’s recess appointment expired. Thus, starting on January 1, 2008, Members Liebman and Schaumber became the only members of the Board.

New Process Steel, L.P. v. NLRB, — U.S. -, 130 S.Ct. 2635, 2638-39, 177 L.Ed.2d 162 (2010) (citations omitted). New Process Steel went on to consider the second of the two described delegations, holding that a three-member group with one vacancy could not exercise the powers of the Board. Id. at 2641-42. Section 3(b) of the Act authorizes delegations to three-member groups, 29 U.S.C. § 153(b), but, the Supreme Court reasoned, such a “delegee group ceases to exist once there are no longer three Board members to constitute the group.” New Process Steel, 130 S.Ct. at 2642 n. 4.

At the same time, New Process Steel expressly declined to discuss the legality of the Board’s assignment of litigation authority to the General Counsel, the delegation challenged in this case. The Supreme Court explained:

Our conclusion that the delegee group ceases to exist once there are no longer three Board members to constitute the group does not cast doubt on the prior delegations of authority to nongroup members, such as the regional directors or the general counsel. The latter implicates a separate question that our decision does not address.

Id. We now consider that “separate question,” beginning with a brief survey of the relevant history.

2.

From 1935, when the NLRA was enacted, to 1947, the Board consisted of three members responsible for both the prosecution and the adjudication of all cases over which the Board had jurisdiction. See National Labor Relations Act, Pub.L. No. 74-198 (the “Wagner Act”), § 3(a), 49 Stat. 449, 451 (1935); id. § 10, 49 Stat. at 453-55; 2 John Higgins, Jr., The Developing LaboR Law 2656-57 (5th ed. 2006). In response to criticism that the Board’s exercise of both prosecutorial and adjudicatory functions was improper, Congress established the position of General Counsel of the Board and assigned the General Counsel the Board’s prosecutorial functions, as well as other roles. See id. at 2657; Taft-Hartley Act, § 101, 61 Stat. at 139, codified at 29 U.S.C. § 153(d). The Taft-Hartley Act also increased the membership of the Board to five. Id., codified at 29 U.S.C. § 153(a). Section 3(d) of the Act now provides, in pertinent part:

There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.

29 U.S.C. § 153(d).

As a matter of the Board’s historical practice, the General Counsel has not always sought case-specific approval before filing a § 10(j) petition. Immediately after the Taft-Hartley Act’s passage, for instance, the General Counsel and the Board entered into a “memorandum of understanding” according to which the “General Counsel [was to] exercise full and final authority and responsibility on behalf of the Board for initiating and prosecuting injunction proceedings as provided for in Section[] 10(j).” Evans v. Int’l Typographical Union, 76 F.Supp. 881, 888 (S.D.Ind.1948) (quoting the memorandum) (emphasis added); see also National Labor Relations Board — Procedures § 202.35, reprinted in 20 Labor Relations Reference Manual 3117-18 (1947) (“Whenever the Regional Director deems it advisable to seek temporary injunctive relief under Section 100") • ■ ■ the officer or Regional Attorney to whom the matter has been referred will make application for appropriate temporary relief....”) (emphasis added).

In 1950, however, the Board published a memorandum in the Federal Register “deseribfing] the statutory authority and set[ting] forth the prescribed duties and authority of the General Counsel of the Board.” Nat’l Lab. Rel. Bd., General Counsel — Description of Authority and Assignment of Responsibilities, 15 Fed.Reg. 6924, 6924 (Oct. 14, 1950) (the “1950 Memorandum”). That memorandum provided that “[o]n behalf of the Board, the General Counsel of the Board will[,] in full accordance with the directions of the Board, ... initiate and prosecute injunction proceedings as provided in section 10(j) ... Provided, however, That the General Counsel will initiate and conduct injunction proceedings under section 10(j) ... only upon approval of the Board.... ” Id. In other words, the 1950 Memorandum authorized the General Counsel to file § 10(j) petitions on the Board’s behalf, but required him to seek case-specific authorization from the Board before filing them. The Board issued a new memorandum in 1955 containing an assignment of litigation authority to the General Counsel identical to that in the 1950 Memorandum. See Nat’l Lab. Rel. Bd., Authority and Assigned Responsibilities of General Counsel of National Labor Relations Board, 20 Fed.Reg. 2175, 2175 (April 6, 1955) (the “1955 Memorandum”). These two memoranda set forth what was the Board’s standard, but not invariant, practice until the 2007 delegation at issue in this case. The General Counsel’s § 10(j) Manual describes that procedure in greater detail:

After the Region [i.e., a regional office of the agency] determines that a case has merit and believes 10© proceedings are appropriate, the Region makes a recommendation in writing to the General Counsel, through the Injunction Litigation Branch (ILB) of the Division of Advice, as to whether it believes that Section 10© relief is warranted.... If the General Counsel agrees that 10© proceedings should be sought, the Region’s memorandum provides the foundation for the General Counsel’s request for authorization from the Board.

After the General Counsel reviews and signs ILB’s cover memorandum to the Board, the entire case, including the Region’s memorandum and attachments, is submitted to the Board.... At this point, at the latest, the Region should immediately begin preparing papers to file in district court.... If the Board authorizes Section 10© proceedings, the ILB will immediately notify the Region. NLRB Office of the General Counsel, Electronic Redacted § 10© Manual §§ 5.2, 5.3, & 5.5 at 12 & 14 (2002). The § 10© Manual does not describe the Board’s procedure upon receipt of the General Counsel’s memorandum, but the Board’s Case Handling Manual suggests that the ordinary practice has been for the Board to vote on each petition individually:

The Regional Office, based on either the Director’s sua sponte determination or a request from the charging party, initially considers whether 10© relief is warranted. In contrast to 10(i) injunctive relief, where by statute interim relief must be sought whenever certain unfair labor practices have occurred and are likely to continue, the Board decides on a case-by-case basis whether to authorize the Regional Office to seek 10© relief.

NLRB Case Handling Manual, Part I, Unfair Labor Practice Proceedings § 10310 (2009). After obtaining the Board’s approval, the Regional Director files the § 10© petition in district court. See 29 C.F.R. § 101.37 (“Whenever it is deemed advisable to seek temporary injunctive relief under section 10© ... the officer or regional attorney to whom the matter has been referred will make application for appropriate temporary relief....”).

The Director and the Hotel dispute whether this procedure, case-by-case prefiling approval by the Board of § 10(j) petitions, is mandated by the Act. We conclude that it is not.

B.

The parties and some of the courts to have considered the question have assumed that if a Regional Director failed to obtain the necessary authorization to file a § 10(j) petition, that failure would deprive a district court of subject-matter jurisdiction. See Osthus, 639 F.3d at 844-45 (holding that the Board’s delegation did not deprive the district court of “subject matter jurisdiction”); El Paso Disposal, 625 F.3d at 851-52 (same); cf. Fed. Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 98-99, 115 S.Ct. 537, 130 L.Ed.2d 439 (1994) (dismissing a petition for certiorari for lack of jurisdiction because the FEC lacked “statutory authority to litigate th[e] case in” the Supreme Court without the Solicitor General’s authorization). In support of its contention that a district court’s jurisdiction hangs in the balance, the Hotel observes that § 10(j)’s first sentence describes the manner and circumstances in which a § 10(j) petition may be filed, and its second sentence then provides that “[ujpon the filing of any such petition the court ... shall have jurisdiction.” 29 U.S.C. § 160(j) (emphasis added). The use of the word “such,” the Hotel argues, means that a district court does not have jurisdiction to grant § 10(j) relief if the petition seeking it was not approved in accordance with the terms of the first sentence.

An alternative view of the statutory language is that as long as the petition is facially regular — that is, is filed on behalf of the Board in the appropriate court, specifies that a complaint alleging an unfair labor practice has been issued, and requests appropriate relief — it is “such [a] petition” and the district court has jurisdiction to consider it. On that view, issues concerning whether the petition was properly approved might at most be considered on the merits, but would not implicate the court’s jurisdiction. We regard it unlikely that Congress intended a district court’s jurisdiction to depend on the backstage subtleties of how a facially proper petition came to be before it, especially as both the court and the respondent in § 10(j) proceedings will often have no reason to suspect that a petition was not properly authorized.

Here, however, the issue of the propriety of the Board’s 2007 delegation of its authority to approve § 10(j) petitions to the General Counsel has been squarely raised before us. Because we conclude that the General Counsel’s exercise of that authority was permitted by the statute, it does not matter — except at one point in the analysis, see infra section III.D— whether the District Court’s jurisdiction turned on the issue. We shall therefore assume, without deciding, that an improperly authorized § 10(j) petition would have implications for a district court’s subject-matter jurisdiction.

C.

1.

The Hotel urges us to read § 10(j)’s language as requiring that the Board approve each individual § 10(j) petition. That section provides, “The Board shall have power ... to petition ... for appropriate temporary relief....” 29 U.S.C. § 160(j) (emphasis added). “The Board,” the Hotel insists, means the five members of the Board, acting as a group, not the General Counsel and not the Regional Director. By contrast, § 10(Z), which was also added by the Taft-Hartley Act in 1947, provides that, upon the filing of certain kinds of charges with the Board, the charges must be investigated and

[i]f, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition [the appropriate] United States district court ... for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.

29 U.S.C. § 160(Z) (emphases added). In other words, § 10(Z) makes clear that an officer of the Board — not the Board itself — not only may, but must, seek temporary injunctive relief to remedy certain narrow violations of the Act. That § 10(j) references only the Board, not the Board’s officers or regional attorneys, the argument goes, suggests that the Board itself must approve each § 10(j) petition before it is filed.

We conclude that these statutory considerations are more than counterbalanced by a number of others. As we explain, § 10(j) gives the Board the power to petition a court for relief, which the Board necessarily does through counsel, but does not specify the level of involvement that the Board must have with each individual petition. The contrast with § 10(1) reflects only that § 10(Z) removes from the Board the authority, left to the Board in § 10(j), to determine how and by whom the filing of petitions is to be authorized. Section 3(d) of the Act, providing that the General Counsel shall, in addition to the duties prescribed by the statute, “have such other duties as the Board may prescribe,” supplies the Board’s authorization to assign the General Counsel the duty to decide whether § 10(j) petitions should be filed. Relying on these statutory features, we hold that, although the Board may reserve to itself the ultimate decision whether to petition for § 10(j) relief in individual cases, it may also exercise its power to petition for § 10(j) relief by authorizing the General Counsel to decide in which cases to seek relief on the Board’s behalf.

2.

We begin with the observation that § 10(j) provides only that “[t]he Board shall have power ... to petition” for relief. 29 U.S.C. § 160®. It does not specify how the Board must exercise that power, or that the Board may not allow anyone else to decide when that power should be exercised in individual cases.

Section 10® is quite different in this respect from § 10(c), the provision of the Act discussing the Board’s power to issue orders in unfair labor practice adjudications. See 29 U.S.C. § 160(c). That section provides that “[i]f upon the preponderance of the testimony taken the Board shall be of the opinion” that an unfair labor practice has occurred, “then the Board shall state its findings of fact and shall issue ... an order requiring such person to cease and desist from such unfair labor practice.” Id. (emphases added). This language contemplates that the Board shall form its own opinion and state its own findings of fact. There is no analogous suggestion in the language of § 100). Indeed, there is even a subtle difference between § 10(e)’s statement that the Board “shall issue ... an order” and § 100)’s provision that the Board “shall have power ... to petition” for relief. The former identifies the Board as the taker of the action in question (issuing orders), while the latter merely assigns the Board a power, without any clear implication as to how that power must be exercised or to whom it may be delegated.

Further, § 10(c) begins with a recognition that testimony may be “taken by [a Board] member, agent, or agency” of the Board, see also 29 U.S.C. § 160(b), before stating that after such a member, agent, or agency takes testimony, “in its discretion, the Board upon notice may take further testimony or hear argument.” Id. § 160(c) (emphases added). The section then goes on to describe, in the manner recounted above, the Board’s duties to state its findings of fact, form its opinion, and issue orders in unfair labor practice cases. This distinction between the Board on the one hand and Board members, agents, and agencies on the other underscores that § 10(c)’s later references to the “Board’s” — but not Board “members’, agents’ or agencies’ ” — duty to decide unfair labor practice cases and issue orders in them is further evidence that the Board may not authorize others to adjudicate individual unfair labor practice cases on its behalf. Again, there is no similar contrast in § 10®, and so no basis for inferring a requirement that the Board itself make § 10® decisions on a case-by-case basis.

Another provision of the Act similarly supports through structural comparison the view that § 10® does not direct the Board to decide itself, on an individualized basis, whether to file petitions for interim relief with district courts. Unlike § 10®, § 10(b) expressly contemplates the possibility of an “agent or agency designated by the Board for ... purposes” of exercising the Board’s “power” to issue complaints. 29 U.S.C. § 160(b). But an examination of the statutory history of § 10(b) reveals that the inference to be drawn from that provision is that the use of the term “power” to describe a particular Board activity does not preclude its assignment on a generic basis to another official or officials.

Section 10(b), including its mention of an “agent or agency designated by the Board” to exercise the Board’s “power” to issue complaints, was included in the original Wagner Act, see 49 Stat. at 453-54, and left largely unamended by the Taft-Hartley Act. See 61 Stat. at 146-47. The Taft-Hartley Act, however, added § 3(d) to the NLRA, creating the position of General Counsel, designating the General Counsel as having “final authority, on behalf of the Board,” to issue complaints, and providing generally for the assignment of “other duties” to the General Counsel. 61 Stat. at 139. The new § 3(d) thus both negated the Board’s ability to make the specific delegation of Board “power” to issue unfair labor practice complaints contemplated by § 10(b) by assigning that “final” authority to the General Counsel, and obviated the need for any specific authorization within § 10(j) for discretionary delegations of the Board’s powers, by providing generically in § 3(d) for such assignments to the General Counsel. So the mention of designated agents in § 10(b), far from defeating the notion that the Board’s § 10(j) power may be exercised by an entity other than the Board, in fact suggests that the Board’s “powers” are not inherently nondelegable.

Finally, comparison between § 10(j) and § 10(i), does not detract from the conclusion that nothing in § 10(j) requires the Board to make case-by-case decisions as to § 10(j) petitions. For a subset of unfair labor practice cases, § 10(7) mandates, rather than allows, application for interim relief if “the officer or regional attorney to whom the matter may be referred has reasonable cause to believe [the] charge is true and that a complaint should issue.” 29 U.S.C. § 160(i). The section also assigns the task of making the application for interim relief to “the officer or regional attorney to whom the matter may be referred ... on behalf of the Board.” Id. Section 10(7) thus establishes a mandatory procedure in respect to when to petition for interim relief and who should file the petition. By contrast, § 10(j) sets neither type of requirement, and so provides the Board with flexibility both as to whether to petition for mandatory relief and as to the decisionmaking process for determining whether to do so.

Section lO0)’s silence speaks loudly enough that we might end the matter there, concluding that the Board may exercise its § 100) power by having the General Counsel decide whether to petition for § 10(j) relief in an individual case. Indeed, unlike stating findings of fact or issuing orders in unfair labor practice proceedings, it is hard to delineate the precise action that constitutes an exercise of the § 100) power. Surely, the multi-member Board is not required to make every decision that arises in the course of litigating a § 100) petition. The multi-member council. need not, for example, appear before the district court and recite its oral argument in unison. The Board’s lawyers do— indeed, must — make such litigation decisions and so they are necessarily involved in the exercise of the Board’s power to petition under § 100).

No more than it requires the Board’s involvement in each decision relating to a § 100) petition does the language of the statute require that the Board approve each individual petition. In other words, nothing in the statute makes the individual petition the unit of analysis for determining when the Board is exercising its § 100) power. Moreover, petitioning a court for relief is a lawyerly function and the General Counsel is, after all, the supervisor of the Board’s legal staff. See 29 U.S.C. § 153(d). So it seems quite natural that the Board could assign to the General Counsel the duty to decide when to exercise its power to petition. Cf. Am. Bar Ass’n, Model Rules of Profl Conduct, R. 1.2 cmt. 3 (“[T]he client may authorize the lawyer to take specific action on the client’s behalf without further consultation .... [A] lawyer may rely on such an advance authorization.”).

3.

More generally, we have previously observed that as far as delegation to subordinates is concerned, “[ejxpress statutory authority for delegation is not required.” Loma Linda Univ. v. Schweiker, 705 F.2d 1123, 1128 (9th Cir.1983); see U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C.Cir.2004) (“When a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.”); see also Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702 (9th Cir.1996) (“Without express congressional authorization for a subdelegation, we must look to the purpose of the statute to set its parameters.” (internal quotation marks omitted)).

It is true that the General Counsel’s status as the Board’s subordinate is not unequivocal. The General Counsel is an independently appointed and confirmed officer whose prosecutorial role Congress deemed it prudent to segregate from the Board’s adjudicatory one. That fact complicates the application of the general presumption that delegations to subordinates are permissible in cases of statutory silence.

But the General Counsel is the Board’s subordinate at least insofar as § 3(d) of the Act requires the General. Counsel to perform “such other duties as the Board may prescribe.” 29 U.S.C. § 153(d). The Act, in other words, is not silent. Upon careful consideration, we conclude that § 3(d) authorizes the Board to prescribe to the General Counsel in particular the responsibility and authority to decide when to seek § 100) relief.

Section 3(d) of the Act provides that the General Counsel

shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under [section 10], and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board, may prescribe or as may be provided by law.

29 U.S.C. § 153(d) (emphasis added). The Hotel contends that § 3(d) authorizes the delegation only of “duties,” not of “powers,” and so, because the Act describes the authority to petition for a § 10(j) injunction as a “power,” 29 U.S.C. § 160(j), not as a “duty,” § 3(d) cannot authorize the Board to delegate to the General Counsel generic authority to approve § 10(j) petitions.

A careful reading of § 3(d), informed by the Act as a whole, reveals that its use of the word “duties” does not contemplate that functions elsewhere described as “powers” may not be prescribed to the General Counsel. Section 3(d) provides that the General Counsel shall have “such other duties” as the Board may prescribe; it does not simply say “such duties.” 29 U.S.C. § 153(d) (emphasis added). For the use of the word “other” to be linguistically proper, § 3(d) must be read as having already listed some functions that may be construed as duties of the General Counsel. And, unsurprisingly, it has: The sentence in § 3(d) authorizing the prescription of “other duties” begins by stating that the General Counsel “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under [section 10], and in respect of the prosecution of such complaints before the Board.” 29 U.S.C. § 153(d). For the word “other” in the phrase “other duties” to make sense, § 3(d) must be read as presupposing that these enumerated functions of the General Counsel (i.e., the investigation of charges and the issuance and prosecution of complaints) are also “duties.”

Other parts of the Act, however, refer to these same enumerated functions as “powers.” Section 10 of the Act, for instance, sets forth the Board’s authority to issue complaints and is explicitly cross-referenced by § 3(d). It provides that:

the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint

29 U.S.C. § 160(b) (emphasis added). Similarly, Congress prefaced §§ 11 and 12 of the Act, which describe the Board’s authority to investigate unfair labor practices, with the heading “Investigatory Powers.” Wagner Act, 49 Stat. at 455; Taft-Hartley Act, 61 Stat. at 150 (emphasis added); see Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (“[T]he heading of a section [is a] tool[] available for the resolution of a doubt about the meaning of a statute.”) (internal quotation marks omitted). So, read as a whole, the Act cannot be fairly said to contain any clear-cut distinction between “powers” and “duties.”

That the Act appears to use the terms “power” and “duty” as largely interchangeable is unsurprising. One can only be under a duty to do that which one has the power to do, and a duty need not be an obligation to exercise a ministerial power. Cf. Osthus, 639 F.3d at 846-47 (Colloton, J., concurring) (observing that “it is not logically inconsistent for Congress to say that a superior body (the Board) may task a subordinate official (the General Counsel) with the ‘duty’ to exercise some of the Board’s ‘power’ ” and drawing an analogy to similar language in the Internal Revenue Code). The sum of the matter is that any inference from the text of the statute that the Act precludes the Board from assigning to the General Counsel the task of deciding in which individual cases § 10(j) petitions should be filed is, at best, exceedingly weak.

4.

One final consideration reinforces the conclusion that the Act permits the assignment of § 10(j) petition decisions to the General Counsel: Section 10(e) of the Act has long been interpreted and applied to permit the General Counsel, and not the Board itself, to make the ultimate decision whether to commence litigation in individual cases. Section 10(e)’s structure is nearly identical to that of § 10(j). The agency’s longstanding practice under § 10(e) is therefore persuasive evidence of the legality of its more short-lived and episodic practice under § 10(j). See New Process Steel, 130 S.Ct. at 2641-42.

Violation of an order issued by the Board at the conclusion of unfair labor practice proceedings does not result in any penalties for the violator. See 2 Higgins, supra, at 2802. “To secure compliance, the Board must apply to an appropriate U.S. court of appeals” for enforcement of its order. Id. Section 10(e) of the Act sets forth the power of the Board to petition for judicial enforcement of its orders, using language closely parallel to that of § 10(j). Specifically, § 10(e) provides, in part, that “[t]he Board shall have power to petition any court of appeals of the United States ... for the enforcement of [its] order.” 29 U.S.C. § 160(e) (emphasis added). Section 10(e) then includes a grant of jurisdiction that is structured in a manner essentially identical to § 10(j)’s, providing that “[u]pon the filing of such petition, the court shall cause notice thereof to be served ..., and thereupon shall have jurisdiction of the proceeding and of the question determined therein.” Id.

From 1950 to 2007, the General Counsel’s litigation authority on behalf of the Board was, with rare exceptions, governed by memoranda containing the following language:

On behalf of the Board, the General Counsel of the Board will, in full accordance with the directions of the Board, petition for enforcement and resist petitions for review of Board Orders as provided in section 10(e) and (f) of the act, initiate and prosecute injunction proceedings as provided in section 10(j), seek temporary restraining orders as provided in section 10(e) and (f), and take appeals either by writ of error or on petition for certiorari to the Supreme Court: Provided, however, That the General Counsel will initiate and conduct injunction proceedings under section 10(j) or under section 10(e) and (f) of the act and contempt proceedings pertaining to the enforcement of or compliance with any order of the Board only upon approval of the Board, and will initiate and conduct appeals to the Supreme Court by writ of error or on petition for certiorari when authorized by the Board.

1955 Memorandum, 20 Fed.Reg. at 2175; 1950 Memorandum, 15 Fed.Reg. at 6924; see section II.A.2, supra. In other words, the memoranda assigned to the General Counsel generic authority to petition for enforcement of the Board’s orders under § 10(e) of the Act. In the proviso, the Board required the General Counsel to obtain case-specific approval only to seek injunctive relief under § 10(j), (e) and (f) of the Act, to petition for Supreme Court review, and to bring contempt proceedings.

The agency’s longstanding practice of having the General Counsel, and not the Board, exercise final authority in approving petitions for enforcement under § 10(e) is strongly supportive of that practice’s validity. See New Process Steel, 130 S.Ct. at 2641 (drawing on the “longstanding practice of the Board” as “persuasive evidence” that the Court’s interpretation of the Act “is the correct one”); Kasten v. Saint-Gobain Performance Plastics, — U.S. -, 131 S.Ct. 1325, 1335, 179 L.Ed.2d 379 (2011) (according deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), to agencies’ views in part because of “[t]he length of time the agencies have held them”); Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979) (“[A]n administrative agency’s consistent, longstanding interpretation of the statute under which it operates is entitled to considerable weight.”). To conclude that the General Counsel could not exercise such authority would be to hold decades of unchallenged agency practice unlawful — a practice, moreover, in which courts have acquiesced thousands of times over by granting petitions for enforcement.

In NLRB v. C & C Roofing Supply, Inc., 569 F.3d 1096 (9th Cir.2009), for example, relying on the 1955 Memorandum, we observed that “[t]he General Counsel’s authority to petition the courts of appeals for enforcement ... is permanently within the General Counsel’s authority,” explaining that such power “does not derive from the temporary delegation of 2007.” Id. at 1098. Although we did not directly address the validity of the 1955 Memorandum’s assignment of § 10(e) authority, the fact that we characterized the delegation as permanent evidences its longstanding nature and the history of judicial acquiescence in it.

Of course, if the statute clearly precluded the generic assignment of when to exercise the Board’s § 10(e) power to the General Counsel, it would be our duty to tell the agency that it had been wrong all along. But the statute contains no such preclusion. Instead, it affirmatively suggests that the Board may exercise its power to petition for enforcement under § 10(e) by authorizing the General Counsel to decide when to petition for enforcement of Board orders in individual cases, for the same reasons, already discussed, that it may do the same under § 10(j). See IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (“[T]he normal rule of statutory interpretation [is] that identical words used in different parts of the same statute are generally presumed to have the same meaning.”); Overstreet v. United Bhd. of Carpenters, Local Union No. 1506, 409 F.3d 1199, 1206-07 (9th Cir.2005) (same). The converse is, of course, also true. As long as the Board may grant generic authorization to the General Counsel to approve petitions for enforcement under § 10(e), the same must be the case under § 10