author: WILKEY, Circuit Judge: PER CURIAM. WILKEY, Circuit Judge:

text:
    INDIANA & MICHIGAN ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. Richmond Power and Light of the City of Richmond, Indiana, et al., Intervenors.
    No. 72-2168.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 9, 1974.
    Decided Feb. 14, 1974.
    On Rehearing Aug. 14, 1974.

      Peter J. Schlesinger, New York City, for petitioner.
    John Staffier, Atty., F. P. C., for respondent. Leo E. Forquer, Gen. Counsel, George W. McHenry, Jr., Acting Sol., and Platt W. Davis, III, Atty., F. P. C., were on the brief for respondent.
    George E. Morrow, Memphis, Tenn., for intervenor, Indiana and Michigan Municipal Distributor Assn.
    George Spiegel and Sandra J. Strebel, Washington, D. C., were on the brief for intervenor, Richmond Power and Light of the City of Richmond, Ind.
    Wallace L. Duncan, Washington, D. C., was on the brief for intervenor, Anderson Power and Light of the City of Anderson, Ind. Frederick D. Palmer, Washington, D. C., also entered an appearance for intervenor Anderson Power and Light.
    Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Indiana & Michigan Electric Company (hereinafter I&M) filed proposed changes in its tariff schedule with the Federal Power Commission on 13 June 1972. By letter of 3 July 1972, the Secretary of the Commission acknowledged I&M’s filing and advised the company that “[t]he earliest effective date for the increase consistent with [Section 35.13(b) (4) (i)] of the Regulations would be August 13, 1972.” This section of the Commission’s regulations requires that, whenever a filing calls for a rate increase, certain cost-of-service data and a summary of the proposed rates be filed 60 days prior to the date the rates are to take effect. On 18 July 1972 I&M applied to the Commission for an order making its new rate schedule effective as of 14 July, or 31 days after' the date on which I&M had previously filed. On 11 August 1972 the Commission accepted I&M’s rates for filing but designated 13 August as their effective date; it then suspended their use for five months thereafter, or until 13 January 1973. By order dated 6 October 1972 the Commission denied I&M’s application for rehearing.

I&M’s petition for review of the Commission’s order was originally consolidated with petitions by two of I&M’s customers, Richmond Power and Light and Anderson Power and Light. On 25 May 1973 this court held that I&M’s rate filing was unlawful with respect to Richmond and Anderson because it violated the terms of their contracts with I&M. However, since the parties here have represented to the court that I&M’s contract with at least one of its other 22 customers is' different from the Rich: mond and Anderson contracts, I&M’s petition to have the effective date of its new rate schedule retroactively altered to 14 July 1972 remains viable.

Because the Commission lacked statutory authority to delay the effective date of I&M’s filing until 13 August 1972 and to suspend the new rates until 13 January 1973, we vacate the Commission’s order of 11 August 1972 and remand to the Commission with instructions that I&M’s 13 June rate filing be given effect as of 14 July 1972.

I. JURISDICTION OF THE COURT TO CONSIDER THE VALIDITY OF THE COMMISSION’S 60-DAY REGULATION

The liminal question here is whether this court can, consistent with section 313(b) of the Federal Power Act, consider I&M’s contention that the Commission’s 60-day prefiling regulation is invalid. Section 313(b) provides, in relevant part: “No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”

While I&M did not expressly raise the legality of the 60-day regulation in its application for rehearing, it did challenge the Commission’s statutory authority to set an effective date 60 days after I&M’s filing. The Commission characterized I&M’s position in seeking a rehearing as follows: “I&M asserts that the Commission has no authority to require a notice in excess of the thirty days specified in Section 205(d) of the Federal Power Act.” Apparently perceiving I&M’s position as a challenge to the 60-day regulation, the Commission devoted two of the five pages of its order denying rehearing to an attempted justification of the regulation. Commissioner Moody joined issue with the majority and attacked the validity of the regulation in his dissent. Clearly, then, I&M brought sufficient attention to the issue to stimulate the Commission’s consideration of it.

The rationale of the requirement that an aggrieved party exhaust its administrative remedies, as provided by section 313 of the Federal Power Act, is “ ‘that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has an opportunity for correction . . . I&M gave the Commission an opportunity to correct its alleged error in setting the effective date of I&M’s rates. Furthermore, I&M suggested the possibility that the 60-day regulation is invalid by inviting the Commission to construe the regulation in a manner “compatible with the Commission’s statutory authority.” The Commission declined to correct its alleged error and explicitly defended the validity of its regulation. Thus, I&M should be permitted to assert the regulation’s invalidity in this court.

II. THE COMMISSION’S 60-DAY PREFILING REGULATION

The Commission delayed the effective date of I&M’s rate filing pursuant to section 35.13(b) (4) (i) of its regulations. This section requires that if a proposed rate schedule calls for in-, creased rates, the utility must file with the Commission “a statement showing its cost of the service to be supplied under the new rate schedule,” “a summary statement of [the] proposed increased rate,” and certain material on sales and revenue under the old rates and the proposed rates, all “60 days prior to the date that such changed rate is proposed to become effective.” Much of the data required presupposes the existence of a completed rate schedule. Obviously, a “summary statement of [the] proposed increased rate” cannot be filed unless the thing to be summarized, the rate schedule itself, has been prepared. Included in the cost-of-service items required are “the percentage rate of return claimed,” “the maximum demands of the service under the proposed rate schedules,” and “revenues under the proposed rates.” Accurate calculation of these items would be difficult, if not impossible, in the absence of a detailed schedule of the proposed rates. Similarly, a detailed schedule is a prerequisite to calculation of “[a] statement comparing sales and services and revenues therefrom . . . under both the rate schedule proposed to be superseded or supplemented and the proposed changed rate schedule.” Finally, section 35.13(b) (5) further requires that “the filing utility shall submit with its rate increase filing 60 days prior to the proposed effective date of such increased rates, testimony and exhibits of such composition, scope and format that they would serve as thé company’s case-in-chief in the event the matter is set for hearing.” Again, preparation of such information depends upon the existence of the completed rate schedule.

It seems clear, then, that in order to comply with the requirements of section 35.13(b), a utility must be prepared to make a complete filing of its new rate schedule. Thus, the practical effect of the section is to impose a de facto 60-day notice requirement on utilities seeking to increase their rates. Such a requirement contravenes the terms of section 205(d) of the Federal Power Act, which provides:

Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.

The Supreme Court has interpreted this language to create not only a minimum notice period for the utility’s customers and the Commission, but also a maximum waiting period for the filing utility. In United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, the Court construed section 4(d) of the Natural Gas Act, whose language is virtually identical to that in section 205(d) of the Federal Power Act, as providing for “the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.” Thirty days is the maximum a utility can be compelled to wait from the time it files its rate changes until the date the changes take effect unless the Commission properly exercises its suspension power. Under the Commission’s regulations, a utility must make a de facto rate filing 60 days in advance of the effective date. Therefore, the regulations unlawfully extend the statutory waiting period for utilities by 30 days.

The Commission asserts that the 60-day prefiling requirement of section 35.-13(b)(4) (i) is necessary to “the proper exercise of its ratemaking authority under the Federal Power Act.” To exercise its authority properly, the Commission must evaluate in each case the advisability of suspending the rate filing pending full hearings on the reasonableness of the proposed rates. The Commission argues that “[t]he difficulty of such evaluations often requires more time than the 30 days to which I&M would restrict the Commission.” This statement fixes responsibility for the 30-day “restriction” with the wrong party, for it is Congress that specified 30 days from the filing date as providing for “the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.” If' the Commission cannot properly exercise its ratemaking authority within the 30-day time frame prescribed by section 205(d), it should address its grievance to Congress, not to the judiciary.

The result we reach here is not foreclosed by this court’s decision in Municipal Light Boards v. FPC. As Commissioner Moody pointed out in his dissent to the Commission’s denial of I&M’s application for rehearing, the validity of section 35.13(b) of the Commission’s regulations was not really in question in Municipal Light Boards. The parties in that case merely assumed the provision’s validity and contested the issue of whether the Commission could waive its own regulation by permitting a less-than-60-day waiting period. Consequently, we properly expressed no view on a possible issue never raised by any party, i.e., whether promulgation of the regulation was within the Commission’s statutory authority.

Under section 205(d) of the Federal Power Act, I&M was entitled to an effective date of 14 July 1972 for the rate schedule it filed on 13 June. The Commission therefore acted unlawfully by delaying the effective date until 13 August.

III. THE FIVE-MONTH SUSPENSION OF I&M’S RATES

Section 205(e) of the Federal Power Act empowers the Commission to hold hearings on the lawfulness of a proposed rate schedule and, pending such hearings, to suspend use of the schedule for no longer than five months “beyond the time when it would otherwise go into effect.” The Commission recognized in its order denying rehearing that it “does not have statutory authority to issue a suspension order after a proper proposed effective date.” Commissioner Moody seconded this observation in his dissent:

Once proposed rates have become effective this Commission is powerless to suspend the effectiveness of, or otherwise modify, those rates under § 205 of the Federal Power Act. Our only recourse is to institute a proceeding under § 206(a) of the Act and after hearing determine just and reasonable rates to be thereafter observed and in force.
Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.

Since we hold that the lawful effective date of I&M’s rate filing was 14 July 1972, the Commission had no authority to suspend use of the new rate schedule on 11 August 1972. Therefore, the Commission’s suspension order of that date must be vacated.

IV. CONCLUSION

The Commission has exceeded its statutory authority by delaying the effective date of I&M’s rate filings beyond the 30 days prescribed by section 205(d) of the Federal Power Act. Therefore, we order that the effective date of I&M’s filing be changed retroactively to 14 July 1972. It inevitably follows that the Commission’s 11 August suspension order was ultra vires and must be invalidated. The orders here in issue are vacated and the case is remanded for implementation of this opinion.

Vacated and Remanded.

ON PETITIONS FOR REHEARING

PER CURIAM.

ORDER

On consideration of the petitions for rehearing, it is ordered by the Court that the petitions for rehearing are granted and the opinion filed on 14 February 1974 is modified in the manner set out in the third paragraph of the opinion of this Court filed herein this date.

WILKEY, Circuit Judge:

The Commission, with the support of intervenors, has filed a petition for rehearing in which it requests that we modify our main opinion of 14 February 1974 by eliminating therefrom our holdings: (1) that the Commission’s five-month suspension of the rates filed by Indiana & Michigan Electric Co. (I&M) must be vacated; and (2) that I&M is entitled to collect from its customers the difference between its filed rates, which now must be deemed lawful from their effective date, and the rates actually charged for the six-month period from 14 July 1972 to 13 January 1973.

In our main opinion we explained in Parts III and IV why under section 205 of the Federal Power Act the Commission does not have authority to suspend filed rates after a proper proposed effective date, a conclusion with which both majority and dissenting members of the Commission agreed. Since we have held that the effective date was 14 July 1972, the Commission suspension order of li August 1972 could have had no effect. It has been forcefully argued to us that, while this is statutorily correct, yet great inequities are likely to result. Even though the Commission is statutorily powerless to correct these inequities, we are urged to exercise our equity powers as a court to mitigate these hardships, or at least place the Commission in such posture as to be able to do so on the basis of evidence and findings later to be heard and made on the justness and reasonableness of I&M rates.

After scrutinizing the various memoranda submitted in connection with this petition, we have decided to adhere to our holding that the Commission exceeded its authority when it suspended I&M’s rates for five months. However, we deem it appropriate to exercise our equity powers and modify our earlier order in the following manner:

1. I&M may not collect retroactive rate increases for the five-month period from the effective date of its rate filing, 14 July 1972, through 13 December 1972.

2. I&M may collect the difference between its old and new rates for the period from 14 December 1972 through 13 January 1973.

3. Should the Commission determine during the course of its current hearings that I&M’s filed rates are unjust or unreasonable, it may order I&M to refund the amounts collected after 13 December 1972 in excess of the just and reasonable rates.

1. Equitable Factors

Under our original order, I&M’s customers would be obligated to pay retroactive rate increases for the five-month period during which the Commission’s unlawful suspension order was in effect. This would create considerable hardship for I&M’s customers, for, in reliance on the Commission’s suspension order, they failed to seek increases in their own rates to offset I&M’s increased charges. Since I&M’s customers are precluded by federal law and the relevant state statutes from retroactively raising their rates, our original order would force them to absorb out of their own current assets the five months of retrospective increases in I&M’s rates. These substantial amounts would impose a significant burden on the finances of I&M’s customers.

In addition, I&M’s customers have been paying the higher rates provided for by I&M’s new tariff schedule since 13 January 1973. Those rates are now subject to scrutiny in Commission hearings to determine whether they are just and reasonable. Our main opinion would deprive the Commission of authority to order refunds by I&M to its customers in the event the Commission finds that some portion of I&M’s increases are unjustified. The Commission’s power to order refunds arises from section 205(e) of the Federal Power Act and is directly tied to the exercise of the Commission’s suspension power. Under section 205(e), if the Commission suspends a filing utility’s rates and orders hearings on their justness and reasonableness, if those hearings overrun the suspension period, and if the filed rate increases are found unreasonable, the Commission may “by further order require [the filing] public utility or public utilities to refund, with interest, such portion of [the] increased rates or charges as by its decision shall be found not justified.”

Under our main opinion, which renders the Commission’s 11 August 1972 suspension order a nullity, the Commission’s hearings on the reasonableness of I&M’s rates cannot rest on the authority of section 205(e), but rather on section 206(a), and thus the Commission does not have the correlative power to order refunds pursuant to section 205 (e). Consequently, the Commission’s hearings can continue only under the authority of section 206(a), and this unambiguously provides that “the Commission shall determine the just and reasonable rate . . to be thereafter observed and in force, and shall fix the same by order.” The Supreme Court has interpreted this language as precluding the Commission from ordering refunds, even when it determines that the rates in effect are unjust and unreasonable.® Under our main opinion, then, I&M’s customers would be forced to pay possibly excessive rates from 13 January 1973 until the conclusion of the Commission’s ongoing hearings without any prospect of receiving refunds of the excessive amounts paid.

Our concern about the liability of I&M’s customers for retroactive rate increases, and payment by those customers of possibly unreasonable rates without right to refunds, is intensified by the fact that the Commission explicitly found in its 11 August 1972 order that I&M’s filed rates may be unjust or unreasonable. The Commission stated:

The proposed rates and charges . have not been shown to be justified and may be unjust, unreasonable, unduly discriminatory, or preferential, or otherwise unlawful. It has also been alleged that I&M’s proposed tariff changes are contrary to the economic stabilization program and antitrust policies and that interchange of energy should be provided for. It is necessary and appropriate in the public interest and in carrying out the provisions of the Federal Power Act that the Commission enter upon a hearing concerning the lawfulness of the rates, charges, classifications, services, and other provisions contained in I&M’s proposed FPC Electric Tariff, and the use thereof deferred as hereinafter provided.

Thus, the strong potential that hardship to I&M’s customers could result from our main opinion is compelling.

Moreover, the equitable stake of I&M in our main opinion is not significant. I&M sought from the Commission no greater relief than our modified order now grants. In its application for rehearing before the Commission, I&M requested that the Commission

[i]ssue a supplemental order modifying ordering paragraph (C) of its August 11, 1972 Order in this proceeding, so as to provide that I&M’s proposed rate schedules are suspended for five months beginning July 14, 1972 and their use deferred until December 14, 1972 . . . .

By modifying our original order in the manner set out above,- we eliminate the potential for hardship to I&M’s customers and we accord I&M precisely the relief it sought from the Commission. The equities clearly dictate that we reinstate the suspension of I&M’s rates for the period from 14 July 1972 through 13 December 1972, and restore to the Commission its power under section 205(e) to order refunds of any amounts paid by I&M’s customers after 13 December 1972 that the Commission finds excessive.

II. The Court’s Equity Powers

A court sitting in review of an administrative agency is vested with equity powers which it may employ in a manner defined by the Supreme Court in Ford Motor Co. v. NLRB:

[W]hile the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of the judicial review is consonant with that of the administrative proceeding itself, — to secure a just result with a minimum of technical requirements.

By our excercise of equity powers herein, we are “adjusting] [our] relief to the exigencies of the ease in accordance with the equitable principles governing judicial action.” In so doing, we are acting, we believe, “within the bounds” of the Federal Power Act; indeed, our main opinion promotes the Act by confining the Commission to its statutory authority, and this supplemental opinion is designed to advance the policies and procedural safegards of section 205 of the Act.

The Supreme Court’s decision in United States v. Morgan is instructive here. Under the authority of the Packers and Stockyards Act the Secretary of Agriculture had declared the schedule of maximum rates charged for stockyard services unlawful and prescribed a new, lower schedule of rates. Stockyard companies filed suit in District Court, which temporarily restrained the Secretary’s order on condition that the stockyard companies deposit the amounts received in excess of the Secretary’s prescribed rates with the clerk of the court. Ultimately, the Supreme Court held the Secretary’s order invalid because the Secretary had failed to accord the stockyard owners the full hearing to which they were entitled under the Act. On remand the District Court ordered that the fund accumulated by the clerk during the pendency of the suit be returned to the stockyard owners. The Supreme Court reversed. It directed the District Court to hold the fund that it had collected until the Secretary rendered a decision, after full hearings, on the lawfulness of the stockyard rates. If the Secretary again found the old rates unlawful, the District Court was instructed to distribute to stockyard customers the difference between the old rates and the lawful rates. The Court’s basic rationale was as follows;

Congress having by the Packers and Stockyards Act established the public policy of maintaining reasonable rates for stockyard services, and having prohibited and declared unlawful any unjust or unreasonable rate, a court of equity should be astute to avoid the use of its process to effectuate the collection of unlawful rates ....

The Court so held although it conceded that the Secretary could prescribe lawful rates only for the future and could not act with respect to charges collected in the past. It reasoned that the Secretary had already found the stockyard rates unlawful, although he had done so in a proeedurally defective manner. If the Secretary subsequently decided to reaffirm his earlier decision through proper procedures, he could not directly order refunds of the excessive amounts paid by stockyard customers in the past. However, such a decision would justify restitution to the customers of the amounts held by the clerk of the District Court. Similarly, we have found an order of the Commission invalid on the basis of a procedural defect (untimeliness). But in order to advance the Federal Power Act’s policy of maintaining just and reasonable rates, we have provided that refunds to the filing utility’s customers will be appropriate if the Commission subsequently makes definite its earlier finding that I&M’s filed rates may be unlawful by so holding in a final decision.

Finally, we are not “intruding upon the administrative province” by our actions herein. Our denial to I&M of retroactive relief for the period 14 July 1972 through 13 December 1972 is not an infringement upon the Commission’s exclusive suspension power. The Commission explicitly determined that suspension was appropriate but failed to issue its suspension order in a timely fashion. Nor are we interfering with the Commission’s statutory role as the sole body responsible for determining whether an electric utility’s filed rates are just and reasonable. We have not relieved I&M’s customers of the burden of paying I&M’s filed rates. We have merely provided that if the Commission subsequently determines that the filed rates are unjust or unreasonable, it may order I&M to refund the excess amounts paid by its customers. Thus, we are convinced that our exercise of equity powers here promotes the policy of the Federal Power Act without violating the terms of the Act or infringing upon the exclusive domain of the agency charged with implementing the Act.

Our decision draws support from Mississippi River Fuel Corp. v. FPC, in which the Third Circuit held that the Commission had acted outside its authority by summarily rejecting the filing utility’s rate schedule without a hearing. This rejection, the court found, violated the procedural requirements of sections 4 and 5 of the Natural Gas Act, which are virtually identical to sections 205 and 206 of the Federal Power Act. The court ordered that the filed rates be given immediate effect, but “subject to the right of the Commission forthwith to direct and give notice of a hearing upon the new schedules and to safeguard customers of petitioner in the payment of the new tariffs pending the outcome of such hearing by requiring petitioner to file such bond as is contemplated and authorized by Section 4(e).” The court thus permitted the Commission to proceed with hearings on the justness and reasonableness of the proposed rates under section 4(e) (the counterpart in the Natural Gas Act to section 205(e) of the Federal Power Act), with full authority to order refunds, despite the fact that the technical effective date of the filing utility’s new rates had long since passed.

The filing utility subsequently moved to modify the court’s order by making its rate filing effective retroactively to 1 June 1952, or 31 days after the date of filing. The court denied the motion, thus in effect imposing a de facto suspension of several months on the filed rates. The court justified its decision by reasoning that granting the retroactive relief requested (1) would force the filing utility’s principal customer “to pay additional retroactive charges of about $3,000,000 for gas it already has resold to its own customers on the basis of [the filing utility’s] existing rate to it” and (2) would fly in the face of “an affirmative though legally misconceived rejection of [the] proposed rate increase by the administrative body which had jurisdiction over the subject matter.” In the instant case, we have justified our modified relief herein in part on the basis that (1) granting I&M fully retroactive relief would impose substantial, irrecoverable costs on I&M’s customers, and (2) the Commission has affirmatively found that I&M’s rates may be unjust or unreasonable, although it implemented its finding in a procedurally defective manner. Therefore, we believe our exercise of equity powers can rest on the authority of Mississippi River Fuel as well as United States v. Morgan.

III. Conclusion

For the reasons stated herein, we grant the petitions for rehearing and modify our main opinion of 14 February 1974 in the manner set out in the third paragraph of this opinion.

So ordered.

      . Joint App. at 162.

      . 18 C.F.R. §35.13 (b)(4) (i) (1973):
      Except as provided in subdivision (ii) of this subparagraph, if the rate schedule provides for an increased rate, then 60 days prior to the date that such changed rate is proposed to become effective the filing public utility shall submit a statement showing its cost of the service to be supplied under the new rate schedule according to supporting statements A through O as described below. Simultaneously, the public utility shall submit the material on sales and - revenues described in paragraph (a) of this section and, unless the rate schedule containing the proposed increased rate is likewise simultaneously filed, a summary statement of such proposed increased rate: Provided, however, That the submittal of such summary statement of the rate schedule shall not be in lieu of the rate schedule as required to be filed with the Commission pursuant to the regulations in this part.
      Supporting statements A through O specify filing of the following data: balance sheet, income statements, earned surplus statement, cost of plant, accumulated depreciation, average working capital, rate of return, debt capital, operating expenses, depreciation expense, income taxes, other taxes, overall cost of service, allocated cost of service, comparison of cost of service, and “fuel adjustment factor.”
      In addition, 18 C.F.R. § 35.13(b)(5) (1973) provides:
      A utility filing for an increase in rates and charges shall be prepared to go forward at a hearing on reasonable notice on the data which have been submitted and sustain the burden of proof, imposed by the Federal Power Act, of establishing that its proposed charges are just and reasonable and not unduly discriminatory or preferential or otherwise unlawful within the meaning of the Act. The Commission is desirous of avoiding delay in processing rate filings. To this end, if the rate schedule provides for an increase in rate which exceeds $30,000 in revenues for the test period, the filing utility shall submit with its rate increase filing 60 days prior to the proposed effective date of such increased rates, testimony and exhibits of such composition, scope and format that they would serve as the company’s case-in-chief in the event the matter is set for hearing. In addition to whatever material the utility chooses to submit as part of its case, except for increases resulting from changes made in fuel clauses and increases of rates comprising an integral part of coordination and interchange arrangements in the nature of power pooling transactions, the exhibits shall include full cost of service data, as identified in sub-paragraph (4) (iv) of this paragraph, statements A through O, and the accompanying testimony should include an explanation of these exhibits.

      . Indiana & Michigan Electric Co., F.P.C. Docket No. E-7740, Joint App. at 158.

      . Joint App. at 196. Commissioner Moody filed a dissenting view.

      . Richmond Power & Light v. FPC, 156 U.S.App.D.C. 315, 481 F.2d 490 and Anderson Power & Light v. FPC, 156 U.S.App.D.C. 315, 481 F.2d 490, cert. denied, 414 U.S. 1068, 94 S.Ct. 578, 38 L.Ed.2d 473 (1973).

      . Thirteen of these customers are affiliated in the Indiana and Michigan Municipal Distributors Association, an intervenor in this case. Eight others are rural electric cooperatives.

      . Counsel for I&M informed the court at oral argument that the city of Auburn, Indiana has the same contract with I&M as Richmond and Anderson. Therefore, the Commission has declared I&M’s filing ineffective as to Auburn. The court will not in the context of this case attempt to determine to which of I&M’s customers the new rate schedule can lawfully apply. We leave such determinations to the Commission, whose orders can then be brought to this court by aggrieved parties through normal review procedures.

      . This will involve collection by I&M from its customers of the difference between the increased rates and the rates actually charged for the six-month period from 14 July 1972 to 13 January 1973. There is precedent in this circuit for ordering retroactive rate adjustments. See Tennessee Valley Municipal Gas Ass’n v. FPC, 152 U.S.App.D.C. 298, 470 F.2d 446 (1972), a case that arose under the Natural Gas Act, 15 U.S.C. § 717 et seq. (1970).

      . 16 TJ.S.C. § 8251(b) (1970).

      . Joint App. at 169.

      . Joint App. at 198.

      . Joint App. at 198-99.

      . Joint App. at 203.

      . FPC v. Colorado Interstate Gas Co., 348 U.S. 492, 500, 75 S.Ct. 467, 472, 99 L.Ed. 583 (1955), quoting United States v. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952).

      . Application for Rehearing of Indiana & Michigan Electric Co., F.P.C. Docket No. E-7740, Joint App. at 174.

      . 18 C.F.R. § 35.13(b) (4) (i) (1973), set out in note 2 supra.

      . ibid.

      . Ibid. (Statement G).

      . Ibid. (Statement M (3)).

      . Ibid. (Statement N).

      . 18 O.F.R. § 35.13(b)(1) (1973). Section 35.13(b) (4) (i) refers to filing of “material on sales and revenue described in paragraph (a) of this section.” The reference to paragraph (a) is apparently an error since paragraph (a) says nothing about material on sales and revenue.

      . 18 O.F.R. § 35.13(b)(5) (1973), set out in full in note 2 supra.

      . 16 U.S.C. §824d(d) (1970).

      . 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958):

      . 15 U.S.C.§ 717c(d) (1970).

      . 358 U.S. at 114, 79 S.Ct. at 200.

      . Brief for Respondent at 25.

      . Id. at 26.

      . United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358 U.S. 103, 114, 79 S.Ct. 194, 200, 3 L.Ed.2d 153 (1958) (emphasis supplied).

      . 146 U.S.App.D.C. 294, 450 F.2d 1341 (1971).

      . Joint App. at 203.

      . The Commission’s staff reached this conclusion in a letter to the Commission captioned “Commission Staff Response to Application of Indiana & Michigan Electric Company” and dated 28 July 1972. The letter stated:
      In I & M’s case, if five months’ suspension is ordered and the 60-day rule is invoked, the proposed rates would not go into effect until six months after the proposed effective date. If the rate changes are accepted for filing without suspension, the effective date would be 60 days after the proposed effective date. It may be observed further that the Commission’s Regulations Under the Natural Gas Act do not. prescribe a 60-day filing requirement and that the same threshold decision as to whether to order an investigation and hearing, or a suspension, or both, must be made. Since both Section 4(d) of the Natural Gas Act and Section 205(d) of the Federal Power Act require only 30 days’ notice of rate changes, the staff respectfully submits that it would be inappropriate to require more of I & M.
      Joint App. at 87.

      . 16 U.S.C. § 824d(e) (1970).

      . Joint App. at 200.' A similar recognition occurred in Central Maine Power Co., F.P. C. Docket Nos. E-7824 and E-8038 (8 June 1973), in which the Commission stated:
      With respect to' the request for suspension of Central Maine’s proposed amendment and for refund protection thereunder, we find that the proposed amendment became effective by operation of law on March 16, 1973, thirty days after filiug and prior to the issuance of the Commission’s order on April 10, 1973. We are without authority under the Federal Power Act to rescind or suspend the effectiveness of the proposed amendment.

        See also Phillips Petroleum Co. v. FPC, 227 F.2d 470 (10th Cir. 1955), cert. denied, 350 U.S. 1005, 76 S.Ct. 649, 100 L.Ed. 868 (1956).
      It is to be observed that I & M’s application of 18 July 1972, asking for a Commission order making the new rate schedule effective retroactively as of 14 July, would possibly have permitted the Commission to issue a suspension order for five months from the valid effective date of 14 July 1972. At least, it is clear that I&M would not have been in a position to challenge such an order as it has now, and that I&M was not seeking a procedural gimmick which would have resulted, as now has occurred, in voiding the Commission’s five-month suspension order. However we do not reach the question suggested by this discussion since the Commission has never asserted that I & M’s 18 July application for a 14 July effective date gave the Commission jurisdiction to suspend I & M’s rates retroactively from 14 July; rather, the Commission has been consistent in contending that 13 August was the effective date and that the 11 August suspension was therefore valid.

      . Joint App. at 202. Section 206(a) of the Act, 16 U.S.C. § 824e(a) (1970), provides:

      . Richmond Powes and Light and Anderson Power and Light filed memoranda in support of the Commission’s petition. The Indiana and Michigan Municipal Distributors Association (IMMDA) and the City of Auburn, Indiana, a member of the IMMDA, submitted separate petitions for rehearing. In addition, the IMMDA filed a suggestion for rehearing en taño. I&M filed a reply memorandum.

      . See FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 152-153, 83 S.Ct. 211, 9 L.Ed.2d 199 (1902); State Corp. Comm’n v. FPC, 215 F.2d 176, 184 (8th Cir. 1954). These cases interpreted section 4 of the Natural Gas Act, 15 U.S.C. § 717c (1970), which is virtually identical to section 205 of the Federal Power Act, 16 U.S.C. § 824d (1970).

      . See Ind.Stat.Ann. § 8-1-2-42 [§ 54-317] (Burns [Code Ed.] 1973); Mich.Stat.Ann. § 22.13 (6a), M.C.L.A. § 460.6a, (Callaghan 1974 Supp.). Under Mich.Stat.Ann. § 22.13(6) (1970), M.C.L.A. § 460.6, municipally-owned utilities are not subject to the jurisdiction of the Michigan Public Service Commission. Therefore,, it is not clear on the face of the Michigan statutes whether the municipally-owned, Michigan customers of I&M could increase their rates retroactively.

      . The estimated cost to I & M’s municipal customers for the six-month period 14 July 1972 through 12 January 1973 is $2,601,951. Affidavit of Fred R. Saffer, 26 February 1974, attached to IMMDA Suggestion for Rehearing En Banc.

      . In an affidavit attached tp the IMMDA Suggestion for Rehearing En Banc, the Chairman of the Board of Public Works of Fort Wayne, Indiana, represented:
      That in the event the Court’s opinion remains unmodified with respect to requiring that Indiana & Michigan Electric Company’s June 13, 1972, rate filing should become effective as of July 14, 1972, the sum required to be paid for the period of July 14, 1972, through January 13, 1973, will amount to apirroximately Four Hundred Seventy Thousand Dollars ($470,000.-00), the payment of which will cause considerable hardship to the City of Fort Wayne. The City will be unable to adequately maintain its system as by law required as a direct result of being required to make such x>ayment. The City cannot recover this $470,000 payment since the City’s rates were not increased for this item and cannot be increased retroactively.
      That if the Court’s oinnion remains unmodified, the impact on the financial condition of the City of Fort Wayne’s City Light and Power Utility will be extremely detrimental in that said City will have to absorb the increased rates without having the ability to raise its retail rates to provide for these additional past costs.

      . 16 U.S.C. § 824d(e) (1970).

      . See note 35 and accompanying text of the 14 February 1974 opinion in this case.

      . 16 U.S.C. § 824e(a) (1970) (emxdiasis sup-l>lied).

      . FPC v. Sierra Pac. Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 100 L.Ed. 388 (1956); Montana-Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 254, 71 S.Ct. 692, 95 L.Ed. 912 (1951). See also Atlantic Ref. Co. v. Public Serv. Comm’n, 360 U.S. 378, 389, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959) (Natural Gas Act § 5, 15 U.S.C. § 717(1 (1970)); FPC v. Hope Natural Gas Co., 320 U.S. 591, 618, 64 S.Ct. 281, 88 L.Ed. 333 (1944) (Natural Gas Act § 5).

      . Joint App. at 164.

      . Id. at 176. See note 34, main opinion, second paragraph.

      . 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221. (1939).

      . Id. at 373, 59 S.Ct. at 307.

      . 16 U.SC. § 824d (1970). The policy expressed in section 205(a) is to promote just and reasonable rates. See Atlantic Ref. Co. v. Public Serv. Comm’n, 360 U.S. 378, 388, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1958) (Natural Gas Act). The procedural safeguards provided by section 205 include the Commission’s suspension and refund powers. See text accompanying notes ^6-7 supra.

      . 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939).

      . 7 U.S.C. §§ 181-229 (1970).

      . Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936); 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938).

      . 307 U.S. at 194, 59 S.Ct. at 801.

      . Id. at 189-190, 59 S.Ct. 795.

      . As recognized by this court in Pennsylvania Gas & Water Co. v. FPC, 150 U.S.App.D.C. 151, 4G3 F.2d 1242 (1972) (Natural Gas Act § 4(e), 15 U.S.C. § 717c (e) (1970)).
      We may distinguish the instant case from United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), and Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1903), which interpreted the suspension provision of the Interstate Commerce Act, § 15(7), 49 U.S.C. § 15(7) (1970). In Arrow, the Supreme Court held that the District Court had infringed upon the exclusive suspension power of the Interstate Commerce Commission when it enjoined implementation of a filed rate schedule after the statutory seven-month suspension period had expired. The Court endorsed the following statement by the Fifth Circuit, which had reversed the District Court’s decree:
      Congress, in its wisdom, has fixed seven months as the maximum period of suspension. It seems clear to us that if the courts extend that period, they are in effect amending the statute and that is a matter beyond their power. 372 U.S. at 662, 83 S.Ct. at 986, quoting 308 F.2d 181, 186 (1962). In SCRAP the District Court enjoined collection of railroad freight surcharges despite the fact that the ICC had denied requests to suspend the surcharges for the statutory seven-month period under section 15(7). The Supreme Court reversed, noting that the District Court’s “injunction constitutes a direct interference with the Commission’s discretionary decision whether or not to suspend the rates.” 412 U.S. at 692, 93 S.Ct. at 2418. In the case at bar, our denial of retroactive increases to I & M for the five-month period from 14 July 1972 through 13 December 1972 does not extend the statutory five-month suspension period as was the case in Arrow. Moreover, our order does not interfere with the Commission’s “discretionary decision whether or not to suspend”; rather, it gives effect to the Commission’s decision that suspension was approj>riate.

      . Cf. United States v. Morgan, 307 U.S. 183, 198, 59 S.Ct. 795, 83 L.Ed. 1211 (1939); Middlewest Motor Freight Bureau v. United States, 433 F.2d 212, 231 (8th Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2169, 29 L.Ed.2d 165 (1971).

      . 202 F.2d 899 (3d Cir.), cert. dismissed, 345 U.S. 988, 73 S.Ct. 1138, 97 L.Ed. 1397 (1953).

      . 15 U.S.C. §§ 717c & 717d (1970).

      . The rates were filed on 30 April 1952, with a proposed effective date of 1 June 1952. The court issued its main opinion on 9 February 1953.

      . 202 F.2d at 904 (emphasis supplied).

      . Ibid.

      . Notes 2-5 supra and accompanying text.

      . Text accompanying note 10 supra. See United States v. Morgan, discussed in text accompanying notes 15-19 supra-, Atlantic Coast Line R.R. Co. v. Florida, 295 U.S. 301, 311-312, 55 S.Ct. 713, 79 L.Ed. 1451 (1935).


source: Caselaw Access Project

author: MacKINNON, Circuit Judge: Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

license: Public Domain

text:
    INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Tiidee Products, Inc., Intervenor (two cases). TIIDEE PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Intervenor (two cases).
    Nos. 72-1080, 72-1365, 72-1691, 72-1692.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 24, 1973.
    April 25, 1974.
    Certiorari Denied May 28, 1974.
    See 94 S.Ct. 2629.
    Rehearing and Rehearing En Banc Denied Aug. 29, 1974.
    Bazelon, Chief Judge, filed statement concurring in denial of rehearing en banc, in which Wright and Robinson, Circuit Judges, joined.

      Ruth Weyand, Washington D.C., with whom Winn Newman and Melvin War-shaw, Washington, D. C., were on the brief, for petitioner in Nos. 72-1080 and 72-1365 and Intervenor in Nos. 72-1691 and 72-1692.
    Lawrence M. Cohen, Chicago, 111., with whom Roy E. Browne, Akron, Ohio, was on the brief, for petitioner in Nos. 72-1691 and 72-1692 and Intervenor in Nos. 72-1080 and 72-1365. Alan Ray-wid, Washington, D. C., also entered an appearance for Tiidee Products, Inc.
    William H. DuRoss, III, Atty. National Labor Relations Board, with whom Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., National Labor Relations Board, were on the brief, for respondent.
    Before TAMM, MacKINNON and ROBB, Circuit Judges.
   MacKINNON, Circuit Judge:

In these consolidated cases we are called upon to review supplemental decisions and amended orders of the National Labor Relations Board (the Board) entered pursuant to our remands in Tiidee 1 and Tiidee II. The facts of these cases are fully stated in the prior Board and court decisions. The remands in Tiidee I and II were based upon the contention of the International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union) that extraordinary affirmative relief was required to undo the effects of what the court termed Tiidee Products, Inc.’s (the Company) flagrant refusals to bargain, and its subsequently frivolous litigation. The Board’s orders here under review provide eertain additional relief requested by the Union, but do not go as far as the Union would have them. As modified by this opinion, the Board’s orders will be enforced.

I

In Tiidee I this court held that the Company violated section 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(5) (1970), by what the majority opinion variously characterized as a “brazen refusal to bargain,” a “manifestly unjustifiable refusal to bargain” and a “clear and flagrant violation of the law.” It then attempted to defend its action before the trial examiner and the Board on the basis of what the Tiidee I court found to be a violation of the express terms of the Agreement for Consent Election and “patently frivolous” objections to the election by which the Union had obtained certification as the exclusive bargaining representative of the unit employees.

The relief ordered in the original Board proceedings in light of the section 8(a)(5) and other unfair labor practices included a broad cease and desist order, and required the Company to post appropriate notices, bargain collectively with the Union upon request, furnish the Union with certain requested information on current wages and fringe benefits, and reinstate with back pay employees laid off and discharged because of their union activities. These conventional remedies were found by the Tii-dee I court to be an inadequate means of insuring meaningful bargaining and to reward unjustly the Company for its illegal actions during the delay of litigation and enforcement of the Board’s orders. The case was thus remanded to the Board for further consideration of the Union’s make-whole claim and other additional or alternative forms of relief. Tiidee II involved further section 8(a)(5) violations, as well as other unfair labor practices, and again the case was remanded for further consideration of more appropriate remedies in light of the Tiidee I decision.

In the supplemental decisions and orders here under review, entered under the compulsion of our prior decisions, the Board finally ordered some additional affirmative remedies for the section 8(a)(5) violations in both Tiidee I and II but again declined to order any broad make-whole relief. The Board thus denied payment to employees for the difference between wages and benefits actually received and what the Union contended they would have received had the Company bargained in good faith to agreement on a contract with the Union. Similarly, the Board denied the Union’s request that it be reimbursed for allegedly “lost” dues and fees, and organizational expenses. The Board did, however, order the Company to reimburse the Board and the Union for all litigation expenses, including attorney fees, in connection with the section 8(a)(5) issues in both Tiidee I and II.

Additionally, the Company was ordered to mail copies of the Board’s posted notices to the home of each employee in the bargaining unit, permit Union ac- ■ cess to the Company’s bulletin boards and other places where notices to employees are posted so it could post Union notices and other literature during the ensuing period of contract negotiations, and furnish the Union with a list of names and addresses of its employees and keep the list current for a period of one year. As to. these latter affirmative actions required of the Company, we fully agree with the Board’s finding that they are necessary and appropriate to guarantee that rights conferred by section 7 will not be denied.

II

In the supplemental proceedings in both Tiidee 1 and II, the Board ordered the Company to “[p]ay to the Board and the Union the costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of these cases before the National Labor Relations Board and the courts . . . . ” Apparently the Board ordered this remedy in response to the Tiidee I court’s suggestion that

[t]he scope of the Board’s consideration on remand, if it is deemed that the Union’s proposal goes too far, would include consideration of such lesser, alternative .remedies as an award to the Union . . . for the costs of having to litigate a frivolous case . . . .

The Company vigorously contests the power of the NLRB to order the award of attorney fees and other litigation expenses to the Board and the Union, but that issue was recently settled in this circuit in Food Store Employees Union, Local No. 347 Amalgamated Meat Cutters v. NLRB, 155 U.S.App.D.C. 101, 476 F.2d 546, cert. granted, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973), which held that the Board does have the power in appropriate cases to order such a remedy. Thus Food Store in large measure controls our disposition of that issue in this case.

Food Store involved “ ‘clearly aggravated and pervasive’ misconduct [by the employer, and the Board] questioned [the employer’s] good faith because of its ‘flagrant repetition of conduct previously found unlawful’ at other [of its] stores.” The premise for sustaining the award of litigation expenses in Food Store was that

employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of making good the legal expenses to which they have put the charging parties and the Board.

As stated above we do not write today on a clean slate but are bound as to the law by Food Store. That being so, we are led inexorably to the conclusion that if the facts of Food Store presented an appropriate case for the award of attorney fees, then, a fortiori, the instant ease does also. The element of frivolous litigation, as the Tiidee I court decided exists in this case, presents a different and even stronger situation for awarding litigation expenses if the payment of attorney fees can be ordered paid for flagrant repetition of conduct violative of the National Labor Relations Act. The court’s finding in Tiidee I that, on the facts presented, the Company had engaged in frivolous litigation constitutes the law of this case. The court’s articulation of that finding is a harsh litany: the Company’s conduct “was a clear and flagrant violation of the law” ; “its objections to the election were patently frivolous”; the Company’s action was “a brazen refusal to bargain, in violation of solemn obligations” ; its position was “palpably without merit” ; and the case involved “a manifestly unjustifiable refusal to bargain.” In light of the precedent established by Food Store and of the court’s decision in Tiidee I as to the law and the facts, stare decisis and the law of the case leave us no recourse but to enforce at least in part the Board’s award to the Union of attorney fees and litigation expenses.

Ill

Difficulties remain, however, as to the manner in which the Food Store and Tiidee decisions may be accommodated with our view of the Board’s orders in this case. Two significant issues, therefore, must be confronted. First, whether the Board itself should be reimbursed for its expenditures in litigating this case, and second, whether legal expenses during the full course of this litigation should be allowed. We answer both in the negative.

A. Reimbursement to the Board

Any remedy ordered - by the Board under section 10(c) must satisfy the ultimate standard that it is designed both in intent and operation to effectuate the policies of the National Labor Relations Act. Three rationalizations may be advanced to support the proposition that the imposition of attorney fees and other legal expenses in cases of frivolous litigation effectuates the policies of the Act: (1) the policies underlying the traditional American rule against awarding attorney fees are unpersuasive in such cases; (2) the remedy would effectively prevent the diversion of administrative resources from meritorious cases; and (3) the award of such costs might help restore the Union to the status quo ante.

In Food Store, the court enlarged the Board’s order to include the award of litigation expenses to the Board as well as the union. The court found it unnecessary on the facts and legal theory there involved to consider explicitly whether an award of legal expenses to the Board involved considerations distinct from granting such reimbursement to a union. The significantly distinguishing feature of Food Store was the employer’s comprehensive pattern of illegal resistance to any form of unionism. The court succinctly summarized the employer’s predilection for unlawful conduct:

The employing company is not a stranger to the processes of the Board. Operating a chain of discount stores in the Southeast, this is the eleventh time that its resistence of union organization has embroiled it in Board proceedings. In none has it prevailed at the Board level, and its fortunes in the Courts of Appeals have been only marginally better.

The Food Store court thus held that an employer who egregiously continues to violate the Act must reimburse both the Board and the union for their legal expenses.

By contrast, in the instant case we are confronted with an employer who actually is a “stranger to the processes of the Board,” however wilful his violation and frivolous his defenses. Confronting this situation, the Tiidee I court demonstrably was concerned principally with assuring adequate remedial relief to the Union rather than to the Board. The entire thrust of the Tiidee I decision, as evidenced by the discussion on make-whole relief, focused on remedying the harm suffered by the Union because of the Company’s conduct. Indeed, in suggesting the alternative relief of reimbursement of litigation expenses, the Tiidee I court specifically contemplated that only the Union would receive such an award. Moreover, although reimbursement to the Board arguably might be consistent with the incidental rationale in Tiidee I of preventing the diversion of administrative resources from meritorious cases, any such advancement of that policy would only be cumulative to that produced by reimbursement to the Union. Thus, while Food Store established the power of the Board to award legal expenses to itself, the present case does not present an appropriate situation for its exercise. Accordingly, the orders here under review shall be modified by deletion of any requirement of payment by the Company to the Board for attorney fees and other legal expenses.

B. Limitation on Reimbursement to the Union

The Company also contends that litigation expenses should not be allowed beyond the date of the Board’s initial Tiidee I decision because as of that date it assertedly was ready and willing to bargain in good faith and the litigation subsequent to that date was related only to the determination of remedies appropriate to already conceded section 28(a)(5) violations. We find this argument persuasive. We sustain in principle the award of litigation expenses in this case because the Tiidee I court found that the Company raised frivolous defenses before the Board. All litigation subsequent to that date, however, certainly did not involve frivolous litigation by the Company — indeed, the opposite is true. After the Board’s decision in Tiidee I, the Company only sought to sustain the Board’s position that traditional relief was adequate, and to resist an attempt by the Union to have the Board impose the exceptionally- novel remedy of make-whole relief, a remedy that has never been ordered in the 39-year history of the Act. The Board agreed with the Company at the outset of this litigation, before this court in Tiidee I indicated that such relief might be possible. Moreover, the Board continues to hold firmly the belief that it is without the power under section 10(c) to award the make-whole relief demanded by the Union.

It is arguable, of course, that the section 8(a)(5) violations and the ensuing frivolous litigation before the Board cannot realistically be separated from attempts by the Union legally to cure the harm that they caused. Moreover, the limitation we delineate today might permit an employer to decimate a union, or vice versa, and escape imposition of remedial orders that comprehend the totality of his actions simply by vowing a change of heart. Thus we do not rely on the Company’s assertion that after the Board’s Tiidee I decision it was ready and willing to bargain. Nevertheless, we recognize that these protracted proceedings clearly constitute what is, in effect, a test case by the Union to establish the viability of a new concept of make-whole relief that amounts to an unprecedented remedy. We therefore think the Company should not, because of its misconduct at the start of the case, be forced fully to subsidize the Union’s legal efforts in such a case.

In the Tiidee II supplemental decision the Board examined the Company’s conduct “in the total context of [its] entire course of unfair labor practices” and found that, in view of its finding “in Tiidee I that frivolous issues were raised and litigated to postpone or avoid a lawful obligation to bargain, [the Company’s] conduct in the instant case is so inextricably intertwined with [its] refusal on frivolous grounds to bargain with the Union as to require the conclusion that it was part of the same pattern of patently frivolous litigation for the same unlawful object. . . . ” Although we believe that the Company’s legal position in Tiidee II cannot fairly be characterized as frivolous, there is ample support in the record for the finding that its conduct in Tiidee II was also designed to “postpone or avoid a lawful obligation to bargain” so that an award of litigation expenses properly is sustainable under Food Store, supra. As noted above, however, the award must be limited to expenses incurred in litigating the initial case before the Board and therefore does not extend to any subsequent legal proceedings involving the question of appropriate remedies.

In summary, the orders relating to the award of attorney fees and other litigation expenses are modified to delete any requirement that the Company reimburse the Board for its legal expenses, and to limit reimbursement to the Union to expenses it incurred only for litigation before the Board in the initial Tii-dee 1 and II decisions.

IV

The Board refused to grant the broad make-whole remedy requested by the Union and the Union now strenuously argues that in so doing the Board failed to comply with this court’s directives on remand. The Union’s argument rests principally upon two grounds. First, that our decision in Tiidee I mandated a make-whole remedy, and second, that the Board improperly relied upon the difficulty of ascertaining the contract terms that would have been agreed to had the Company bargained in good faith. The first argument has little merit. The Tii-dee I court quite clearly did not- require imposition of a broad make-whole remedy; indeed, it indicated that the Board could select remedies other than make-whole relief if they would adequately effectuate the policies of the Act and were supported by reasoned analysis.

The second contention of the Union has more substance but on full consideration it too must fail. The court in Tiidee I drew a distinction between contract terms that “would” and “should” have been agreed to by the parties had they bargained together in good faith to agreement. Although the Board does not have the power to impose “should” contract terms or to grant make-whole relief where no agreement would have been reached, the Tiidee I court clearly stated that:

A tribunal given the function of implementing national policy through compensatory remedies may not soundly refer to the difficulty in quantifying appropriate compensation as a justification for withdrawal and frustration of the policy, particularly where such an approach would operate only to reward the wrongdoer and to give him an advantage over a law-abiding competitor.

It is necessary, therefore, to examine and determine the sufficiency of the record evidence that would form the basis for awarding make-whole relief.

At the unfair labor practice hearing in Tiidee I, the trial examiner freely allowed the Union to introduce evidence in support of its make-whole request. And, in its Statement of Position of Charging Party on Remand, the Union proffered certain evidence to establish the compensation and fringe benefits earned by employees prior to certification and what they could be expected to have received had the Company bargained in good faith. This evidence is of limited relevance, however, because it, for example, refers to bargaining units of much greater size than the Union’s, lumps all manufacturing industries together, and generally consists of national, rather than local, statistics.

The precise issue, then, is whether this evidence validly could be translated into specific contract terms that would have been agreed to by both the Union and the Company had they bargained together in good faith to an agreement. The Board specifically found that it could not “ascertain with even approximate accuracy . . . what the parties ‘would have agreed to.’ ” Moreover, the Board also seemed to suggest that the parties might not have reached any agreement at all. We have closely examined the record evidence and cannot conclude that the Board’s finding on this issue was without substantial support in the evidence.

There is yet another basis for affirming this aspect of the Board’s decision, however, for it appears that the Board permissibly balanced the difficulty in this particular case of ascertaining the contract terms that would have been agreed to against the relative ease and certainty of awarding litigation expenses to the Union and ordering other affirmative remedies. The Board found that make-whole relief was “not practicable” in this case, and that it “would effectuate the policies of the Act to grant some but not all of the requested relief.” Thus the Board found that its selection of affirmative remedies was an adequate alternative means of effectuating the Act’s policies and satisfying the directives of the Tiidee I and II remands. The Tiidee I court was “particularly” concerned that reliance on “the difficulty in quantifying appropriate compensation . . . would operate only to reward the wrongdoer”; this concern is largely vitiated by the additional remedies ordered in this case, including limited litigation expenses. On these facts, given our limited scope of review, we are not disposed to overturn this finding.

V

The Union also requested compensation from the Company for Union members’ dues and fees allegedly lost to it because of the Company’s flagrant refusal to bargain. The Board premised its denial of this relief on two grounds. First, it argued that such relief is part and parcel of the broad make-whole remedy denied in this case since such items would come from “lost” wages. Second, it felt that since it was the Union’s policy to waive such dues and fees until after a contract had been signed, the risk of losing such monies when no contract is signed should not be shifted from the Union to the Company. Food Store, supra, considered this same issue and sustained the Board’s denial of such relief in that case. Food Store premised its holding, inter alia, on the fact that “[i]t is undoubtedly true that union security clauses have attained a wide degree of use, but it also remains true that an employer may bargain to impasse with respect to such a demand, and that the Board may not impose that obligation upon the employer, H. K. Porter Co. v. NLRB, 397 U.S. 99 [90 S.Ct. 821, 25 L.Ed.2d 146] (1970).” We reaffirm that holding.

The Board also denied the Union’s request for reimbursement of organizational expenses supposedly lost because of the Company’s refusal to bargain. The Union argues that this remedy should be ordered because the money it spent in pre-election organization efforts was “rendered a complete waste” due to the unlawful refusal to bargain. It points out that the delay in bargaining caused loss of interest in the Union and loss of membership. We agree with the Board, however,

that the Union incurred no extraordinary organizational expenses Despite certain already remedied preelection unlawful [Company] conduct, the Union was selected by the employees after a 2-month campaign at the first election held. We find, therefore, no nexus between [the Company’s] unlawful conduct here under examination and the Union’s preelection organizational expenses .

Thus the Union incurred only normal organizational expenses in its campaign for election. In Food. Store, by contrast, organizational expenses were allowed because there the employer’s pervasively unlawful conduct required the expenditure of extraordinary amounts of .money. Moreover, it should be noted that the purpose of an organizational drive such as that conducted by the Union is to gain majority status among the unit employees, win the representation election and obtain certification. A principal benefit gained by this process is certification as the exclusive bargaining agent for the unit. The Union here achieved this status and the one year protective period guaranteed by such certification will not begin to run until the Company begins to bargain in good faith with the Union. The denial of organizational expenses to the Union must be affirmed since it was not forced to make extraordinary expenditures and those normal expenses it did incur were not rendered a complete waste.

As modified herein, the amended orders under review shall be enforced.

It is so ordered.

On Petitioner’s Suggestion for Rehearing En Banc

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

Petitioner has filed a suggestion for rehearing en banc. On consideration thereof, it is

Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).

Statement of BAZELON, Chief Judge, as to why he voted to deny rehearing en banc in which WRIGHT and ROBINSON, Circuit Judges, join.

A Division of this Court has upheld the Labor Board’s refusal to grant “make-whole” relief because substantial evidence exists to support a finding that the truth of union allegations of possible contract terms could not be ascertained with “even approximate accuracy.” Absent extraordinary circumstances, it is not the function of en banc hearings to review questions of substantial evidence and, therefore, I vote to deny en banc review. However, in doing so, I think it helpful to clearly emphasize that the Board cannot avoid the mandate of Tiidee 1 by repeated findings that union allegations concerning possible contract terms are not supported by the evidence. The policy of the NLRA requiring good faith bargaining between management and labor is too important to be vindicated only through in futuro relief. The “make-whole” remedy is the single effective action that can be taken to mitigate the past effects of brazen refusals to bargain. I for one would not take a restrictive approach to the proof necessary to sustain this remedy. This point applies also to the exercise of the Board’s discretion in granting litigation expenses in lieu of “make-whole” relief: while the Board clearly does have that discretion, I do not think it can be exercised in a manner which effectively eliminates the availability of true “make-whole” relief.

      . The Union and the Company seek review of eertain portions of the supplemental decisions and amended orders, while the Board has cross-applied for enforcement of its amended orders. Our jurisdiction rests upon sections 10(e) and 10(f) of the National Labor Relations Act, 29 U.S.O. § 160(e), (f) (1970).

      . International Union of Electrical, Radio and Machine Workers, AFL-CIO v. NLRB, 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970).

      . International Union of Electrical, Radio and Machine Workers, AFL-CIO v. NLRB, 142 U.S.App.D.C. 270, 440 F.2d 298 (1970).

      . Tiidee I: Tiidee Products, Inc., 174 NLRB 705 (1969); Tiidee Products, Inc. (Supp. Decision), 194 NLRB 1234 (1972). Tiidee II: Tiidee Products, Inc., 176 NLRB 969 (1969); Tiidee Products, Inc. (Supp. Decision), 196 NLRB 158 (1972).

      . These decisions are binding upon this panel and partially determine our disposition of this appeal.

      . Tiidee I, supra note 2, at 255, 256, 254, 426 F.2d at 1249, 1250, 1248.

      . The Company conceded the section 8(a)(5) violations on review before the Tiidee I court. It also conceded some of the section 8(a)(2) violations but resisted the findings and remedies dealing with other alleged violations. Tiidee I, supra note 2, at 252, 426 F.2d at 1246.

      . Tiidee I, supra note 2, at 254, 426 F.2d at 1248.

      . It is a reward only if one considers that increased benefits were certain to be obtained by the Union. Such a result, however, was uncertain and remains so to this day. Thus, it is not strictly accurate to say that the Company profited or was rewarded by the delay.

      . The Board stated it was unable to allocate litigation expenses between the section 8(a)(5) and other violations in Tiidee II and thus granted reimbursement for all such expenses. Tiidee Products, Inc., 196 NLRB at 159 n. 7 (1972) ; Jt.App. at 127 n. 7. We think this finding is untenable and therefore the Board shall be required to determine the proper allocation of litigation expenses related to the section 8(a)(5) violations. Bee text following note 30 infra.

      . Tiidee Products, Inc., 194 NLRB 1234, 1235-36 (1972).

      . Id. at 1237; 196 NLRB 158, 159.

      . 138 U.S.App.D.C. at 259 n. 15, 426 F.2d at 1253 n. 15.

       My views on the issues in Tiidee I and II are set forth in my dissenting opinions to those decisions. In this third stage of the Tiidee proceedings, the opportunity to consider as a matter of first impression the adequacy and legal soundness of the Board’s supplemental decisions and amended orders has been circumscribed by the intervening Food Store decision, decided by another panel of this court. In these circumstances, and because of my prior participation in Tiidee I and II, it is peculiarly appropriate to set forth my individual views on three basic issues. These personal views are set forth in this footnote *, and in footnotes ** and ***, infra. As to footnote **, we all recognize that we are bound by the law of the case but my prior familiarity with the record in Tiidee I and II compels me to reaffirm my individual dissent in those cases with additional detail. As to footnotes * and ***, Judges Tamm and Robb feel that debate in this circuit has been foreclosed by Food Store Employees Union, Local No. 347 Amalgamated Meat Cutters v. NLRB, 155 U.S.App.D.C. 101, 476 F.2d 546, cert. granted, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973). As my authorship of the opinion for the court demonstrates, I agree that Food Store is controlling; nonetheless, I feel it necessary to express my personal opinion on what I perceive as relatively clearcut and as yet not fully illuminated issues.
      It is my individual opinion that section 10(c) does not authorize the Board to award attorney fees. Traditional American jurisprudence circumscribes even the power of the courts to award attorney fees. There are, of course, several well established exceptions to the American rule prohibiting their award by the courts. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The award of attorney fees by a statutory board in this case is predicated upon a congressional grant of authority pursuant to section 10(c) of the Act. The broad language of that section, however, does not compare favorably with the explicit, unambiguous and specific language consciously selected by Congress in other statutes. For,, example, the Interstate Commerce Act provides that “[i]f the plaintiff shall finally prevail [in court] he shall be allowed a reasonable attorney’s fee, to be taxed and collected as part of the costs of the suit.” 49 U.S.C. § 16(2) (1970). Similarly, the Clayton Act specifically requires that a person injured by a violation of the antitrust laws “shall recover [in court] the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15 (1970). Thus the, unvarying rule is that when Congress intends to permit the courts to award attorney fees to the prevailing party in statutory causes of action, it does so with precision and unmistakable clarity. B. g., Packers and Stockyards Act, 1921, § 309(f), 7 U.S.C. § 210(f) (1970) ; Perishable Agricultural Commodities Act, § 7(b), 7 U.S.C. § 499g(b) (1970); Trust Indenture Act of 1939, § 323(a), 15 U.S.C. § 77www(a) (1970) ; Securities Act of 1933, § 11(e), 15 U.S.C. § 77k(e) (1970) ; Securities Exchange Act of 1934, §§ 9(e), 18(a), 15 U.S.C. §§ 78i(e), 78r(a) (1970) ; Copyright Act, § 116, 17 U. S.C. § 116 (1970) ; Labor-Management Relations Act (Taft-Hartley Act), § 303, 29 U. S.C. § 187(b) (1970) (relating to secondary boycotts) (see also Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 260 n. 16, 84 S.Ct. 1253, 12 L.Ed. 2d 280 (1964)) ; Fair Labor Standards Act of 1938, | 16(b), 29 U.S.C. § 216(b) (1970) ; Servicemen’s Readjustment Act, § 1822(b), 38 U.S.C. § 1822(b) (1970) ; Civil Rights Act of 1964, § 706 (k), 42 U.S.C. § 2000e-5(k) (1970) ; Railway Labor Act, § 3(p), 45 U.S.C. § 153(p) (1970) ; Communications Act of 1934, § 206, 47 U.S.C. § 206 (1970).
      Absent statutory authority, courts may, in the exercise of their inherent equitable powers, award attorney fees in certain carefully circumscribed situations where “overriding considerations indicate the need for such a recovery.” Hall v. Cole, supra, at 4-5. An administrative agency possesses no such inherent equitable power, however, for it is a creature of the statute that brought it into existence; it has no powers except those specifically conferred upon it by statute. The Board’s power to award attorney fees, then, depends exclusively upon section 10(c). That section admittedly constitutes a broad grant of authority, Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), but in that very broadness, as contrasted to the statutes cited above, lies the fatal flaw to any argument that the Board has the power to order reimbursement for attorney fees and other litigation expenses. Section 10(c) grants the Board the authority to order an employer or union to “take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of” the Act. The words “affirmative action” are calculated more to connote that type of action ordinarily ordered by the Board in unfair labor practice cases, such as ordering the parties to engage in collective bargaining, to cease and desist from unfair labor practices, refrain from secondary boycotts, cease unlawful picketing, and so forth. Moreover, where monetary compensation is involved, the Congress thought it necessary to state explicitly that employees could be “reinstated with or without hack pay.”

      There is yet another significant weakness in the argument that section 10(c) authorizes the Board to award attorney fees. The Labor Act, especially after the 1947 amendments, was intended carefully to adjust and balance the rights and interests of labor, management and the government; the Act manifestly was designed to provide fair and even-handed treatment. The award of attorney fees pursuant to section 10(c) demonstrably does violence to these fundamental precepts, however, for no comparable remedy is available against a charging party even though in filing a charge and causing a complaint to issue he may be motivated by the same illegal reasons (a pattern of illegal resistance to unionization) and be engaged in the same conduct (frivolous litigation) on which such award is premised in Food Store and the instant case. The “affirmative action” clause in section 10(c) applies only against the charged party. By contrast, a charging party, who is a party of right (29 O.E.R. § 102.8 (1973)) permitted fully to litigate the case at the hearing (29 C.E.R. § 102.38 (1973)) and before the Board, may file a charge based on totally false facts or raise totally frivolous issues for the purpose of infringing . an employer’s protected rights and yet, if the Board determines that the complaint based on such a charge is totally without merit, section 10(c)’s second proviso provides only that “the Board shall state its findings of fact and shall issue an order dismissing the said complaint.” And, although it may be hoped that the regional directors or the General Counsel would weed out such charges and not issue a complaint, it is clear that such frivolous cases may occur, especially since neither the Act (section 10(b)) nor the regulations (29 C.F.R. § 101.4 (1973)) requires any investigation of the charges prior to the issuance of a complaint. Thus, although perfect symmetry is not required or even expected, the fact that a charging party who engages in frivolous litigation escapes completely unscathed while his counterpart, for example the Company in this case, is liable for large litigation expenses strongly suggests that the Congress never intended the Board to possess the power to impose attorney fees and other litigation expenses.
      It is also of critical importance in construing so broad a grant of authority, one thought by Congress best to reside in “the empiric process of administration,” Phelps-Dodge, supra, at 194, that in the entire 39-year history of the Act section 10(c) lias never before been interpreted to support the exaction of attorney • fees in cases such as this. This consistent administrative interpretation and practice for so many years argues persuasively against change by the Judiciary. After more than a decade of operation without such a remedy, section 10(c)’s precise language survived intact the 1947 Taft-Hartley Amendments. Moreover, in all the 39 years of legislative history surrounding section 10(c), none of it gives any support for the interpretation that Congress intended to allow the Board to award attorney fees and litigation expenses to prevailing parties. Therefore, if the complaint be made that the powers of the Board are inadequate, let it be made to the Congress and not the Judiciary — any proper conception of, and respect for, the relative domains of each demands no less.
      It would, moreover, be unsound policy to invest the Board with the power to grant attorney fees, for theory rarely is congruent with reality. It may well be a reassuring proposition to state that attorney fees will only be awarded in frivolous or flagrant cases, but the predicates of the adversary system augurs intense litigation over the very premise of such an award, that is, whether a case is frivolous or flagrant. Such synergistic circumstances would greatly increase the number and complexity of cases before the Board, and what began as a means of ridding the Board and the courts of frivolous cases (which are relatively few in number) would finally produce quite the opposite result and add greatly to the Board’s burdens.
      I would require a more clearly expressed statutory mandate to authorize the Board to order a remedy in which even the courts seldom indulge.

      . 155 U.S.App.D.C. at 106, 476 F.2d at 551.

      . Id.

      . We are, of course, cognizant of the somewhat disturbing circularity of this approach —the Board reacted to the strong remand in Tiidee I by imposing attorney fees, Food Store then relied on the Board’s supplemental decision in Tiidee I after our remand, and now we, in Tiidee III, rely in large part on the precedent established by Food Store to sustain the imposition of attorney fees and other litigation expenses.

       Although it is the law of this case, it is my individual opinion (see note *, supra) that the Company’s conduct of this litigation is not as frivolous as the adjectival characterizations of the Tiidee I majority would suggest. The Company had a legitimate complaint against the Union’s circulation of a misrepresentative handbill to the employees on the very day of the election, just eight hours prior to the balloting. The handbill misrepresented the issues in the election by holding out the alluring promise that “greater benefits” were “exactly” what a “Yes vote” would produce. Report on Election, Exhibit A, Jt.App. at 220. Board decisions, however, generally allow unions some latitude in this area, to the extent that they may promise benefits they may be unable to procure. See, e. g., Burson Plant of the Kendall Co., 115 NLRB 1401 (1956); Olson Rug Co., 118 NLRB 1274 (1957). The interjection of such misrepresentative matter at the last minute so that the employer cannot respond, however, must be viewed in a different light. In this context, the Company justifiably could feel unfairly treated on the significant question of whether it would be unionized. But for the late hour at which the handbill was distributed, the Company could and probably would have responded with a handbill of its own to inform the employees of the precise implications of a “Yes vote” in the election.
      The obvious strategical move, calling a meeting of the employees to answer the Union’s misleading literature in a speech, was prohibited by the Peerless Plywood rule. Peerless Plywood Co., 107 NLRB 427 (1953). Under Peerless, while “unions or employers [may] circulate campaign literature on or off the premises at any time prior to an election,” id. at 430, they are “prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.” Id. at 429. Thus the Company was effectively precluded from answering what it considered to be unfair and misleading campaign propaganda and tactics, the obvious purpose and intent of which was to influence the election against the Company.
      When the election resulted in a union victory, the Company naturally and justifiably inferred that the misleading campaign propaganda had influenced the result to some degree. The Company undoubtedly thought that in logic and reality such last minute handbilling is indistinguishable from last minute speeches, which the Board has recognized “tends to create a mass psychology [and is] the last most telling word.” Id. Mousetrapped between the 24 hour no-speech rule and the rule permitting unions to propagandize up to the time of balloting, the Company felt it imperative to make legal objections to the election. The Regional Director investigated, but did not hold any hearing on the Company’s objections and ruled against the Company. He found that the Union’s handbill’s did not influence the election result, a conclusion contrary to the obvious effect intended by the Union. It may be cogently argued that a hearing was necessary in order to determine the psychological and practical effect of the Union’s handbilling immediately prior to the election. Employees could have been called to determine whether they thought that as a result of a union victory they would be guaranteed greater benefits as the literature promised. The Trial Examiner almost casually termed as “frivolous” the Company’s failure to acquiesce to the Regional Director’s decision, even though the Company’s refusal to bargain was the only method under the Act by which it could seeh review of that decision. The trial examiner would have to have been prescient to realize he was opening a Pandora’s box of complex and protracted litigation by this casual reference, when subsequently the Tiidee I majority greatly expended his factual finding to make the Company’s position “palpably” and “patently” frivolous. See text following this note. Viewed in total context, one could not fairly characterize as frivolous the actions taken by the Company; the Company’s conduct, moreover, could hardly be termed any more frivolous than the Union’s demand for a remedy never previously ordered in the entire 39-year history of the Act and still thought by the Board not to be within its power under section 10(c) to grant.
      The analysis of Chairman Miller of the NLRB in his dissent in Tiidee II supports his conclusion that the Company’s defenses in that case had not been “asserted frivolously.” His dissenting opinion stated:
      As the majority opinion points out, our decision in Tiidee I to award costs and attorneys’ fees was based on the court’s finding that the litigation there had been frivolously engaged in by Respondent.
      In reviewing the record in the instant case, I am unable to find that the defense here was asserted frivolously. The majority opinion here seems to me to evade this issue and to rely on the extent of Respondent’s unfair labor practices (which, however reprehensible, are no more extensive than those committed by both unions and employers in a considerable percentage of the 800 or so cases we review each year) and on the degree of Respondent’s union animus and hostility. But the degree of Respondent’s hostility has little or nothing to do with the frivolity of its defenses to the allegations of the complaint in this proceeding.
      For these reasons I dissent from that portion of this Decision which awards costs and attorneys’ fees.
      196 NLRB at 157 (emphasis added). The italicized statement is equally applicable to the court’s majority opinion in Tiidee I.

      Although I recognize that the Company faced a very difficult position so far as the Board and its decisions were concerned, I also believe that the Company had legitimate grounds for considering as a matter of simple justice that it did have a valid complaint against the Union. To dispose of the Company’s complaint, as the trial examiner did, by the statement that the handbill did not influence the election, is completely speculative and denies that the handbill had the very effect that its authors and distributors intended it to have.

      . Tiidee I, supra note 2, at 254, 426 F.2d at 1248.

      . Id.

      . Id. at 255, 426 F.2d at 1249.

      . Id. at 256, 426 F.2d at 1250.

      . Id.

      . The American rule generally disfavors the award of attorney fees and other litigation expenses except where specifically provided for by statute or contract. Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). See, e. g., Clayton Act, § 4, 15 U. S.C. § 15 (1970); Interstate Commerce Act, § 16, 49 U.S.C. § 16(2) (1970); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Hauenstein v. Lynham, 100 U. S. 483, 25 L.Ed. 628 (1880). Food Store, supra, has established for this circuit that the power to award attorney fees does repose in section 10(c), i. e., that the statute here is within the recognized exception to the general rule. As a matter of guiding principle we note, however, that the rationales underlying the traditional rule, see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619, 639-40 (1931), are soundly applicable only in eases involving meritorious or colorable legal claims and defenses. See Amalgamated Local Union 355 v. NLRB, 481 F.2d 996 (2d Cir. 1973).

      . The Tiidee I court was concerned that such frivolous litigation as that engaged in by the Company would “drain and divert judicial resources from the provision of justice to the crowded calendars and to meritorious litigants whose claims clamor for attention. The same considerations are presumably applicable at the administrative level.” Supra note 2, at 256, 426 F.2d at 1250. In this respect, it would be disingenuous to fail to recognize explicitly that the litigation expenses remedy has a deterrent aspect and thus arguably falls within the ambit of Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940). The instant case,' however, presents somewhat different factual circumstances and the award of legal expenses, at least to the Union, may more cogently be described as remedial. See note 24 infra. This assertion assumes the proportions of semantic jousting, but the cavil may be raised as to any “remedial” order that it also has an impermissible deterrent effect. If Food Store, supra, is to be relied upon, however, this does not preclude its use where its primary thrust is truly remedial.

      . Frivolous litigation on a protracted basis . might be so burdensome financially as to interfere seriously with the ability of the affected party to function and act effectively. In such circumstances, the claim is made that this remedy in part may also be designed to restore the injured party to the status quo ante, a well recognized goal of the Board’s remedial powers. Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Decaturville Sportswear Co. v. NLRB, 406 F.2d 886, 889 (6th Cir. 1969); Local 57, International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 126 U.S.App.D.C. 81, 86, 374 F.2d 295, 300, cert. denied, 387 U.S. 942, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967); see Local 60, United Brotherhood of Carpenters & Joiners of America v. NLRB, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961). The award of attorney fees based on this principle, however, greatly exceeds the manner in which it normally has been applied by the Board and the courts.

      . 155 U.S.App.D.C. at 102, 476 F.2d at 547. See also text accompanying notes 14 — 15 supra.

      . See text accompanying note 13 supra. Thus the law of the case also dictates that an award of legal expenses to the Board exceeds “[t]he scope of the Board’s consideration on remand.” Id.

       It is my individual opinion, again in which my brothers do not join, that an award of attorney fees and other litigation expenses to the Board itself falls within the prohibition of Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940), which precludes the use of a pure deterrence rationale as a basis for upholding orders under section 10(c). In Republic Steel the Board ordered an employer to deduct from payments to employees reinstated with back pay amounts they had earned on public work relief projects and to pay such deducted amounts to the appropriate government agencies. The Court characterized such payments as “exactions” and stated that
      it is not enough to justify the Board’s requirements to say that they would have the effect of deterring persons from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end.

        Id. at 12. Since the NLRB was created and exists for the purpose of determining unfair labor practice cases and otherwise discharging its duties under the Act, reimbursement to the Board of legal expenses incurred in the discharge of its statutory duties under section 10(c) could only be justified on the impermissible rationale of deterrence. By contrast, this court has held that the Board may be reimbursed for attorney fees and other litigation expenses by a United States Court of Appeals in an action in which the Board has successfully petitioned such court to hold in civil contempt a party who has violated that court’s final order granting enforcement to a Board order. Dallas General Drivers, Warehousemen and Helpers, Local. Union No. 745 v. NLRB, 163 U.S.App.D.C. 100, 500 F.2d 768 (1974); West Texas Utilities Co. v. NLRB, 92 U.S.App.D.C. 224, 206 F.2d 442, cert. denied, 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369 (1953).

      . Company Br. at 9, 17-18.

      . The union demand, made originally before the trial examiner, was that the
      Respondent [Company] make the employees whole for wages and benefits which they might have received but for the Respondent’s unlawful refusal to bargain, and that the Respondent be required to pay the Union the amount of dues and initiation fees it lost dating from 130 days after the Union was certified.
      Jt.App. at-48.

      . The Board stated in its supplemental decision in Tiidee I:

      In Ex-Cell-0 the Board majority enunciated its conclusion that Congress did not give the Board statutory authority to grant the compensatory monetary remedy requested by the Union. The court of appeals disagreed with this view of the scope of the Board’s statutory remedial power and it remanded these cases to the Board for further proceedings not inconsistent with the court’s opinion. Although the Board adhers to the views expressed in Ex-Cell-O, inasmuch as it has accepted the remand, it considers itself bound by the court’s opinion as the “law of the case.”
      194 NLRB at 1234 (emphasis added).

      . Tiidee Products, Inc., 196 NLRB 158 (1972); Jt.App. at 126.

      . Tiidee I, supra note 2, at 259, 426 F.2d at 1253.

      . Id. at 257, 426 F.2d at 1251.

      . Jt.App. at 135, 144-69.

      . Id.

      . Tiidee Products, Inc., 194 NLRB 1234, 1235 (1972).

      . Id.

      . Id.

      . Id. at 1234.

      . The Board declined to remand the case to a trial examiner to attempt to gather further evidence on the make-whole remedy. It found that such action would be “counterproductive” and that it would not effectuate the policies of the Act to do so. Id. at 1235. The Company was under order to bargain with the Union and thus would not be likely to agree to any contract that might serve as a basis for establishing make-whole relief. Also, the Union had already had full opportunity to present such evidence. See text accompanying note 33 supra.

      . Our limitation on the legal expenses recoverable by the Union does detract somewhat from the implicit balancing process in which the Board appears to have engaged, but we think that the clear dictates of the law, combined with the additional affirmative actions required of the Company, satisfactorily resolve the complex of problems presented in this case.

      . Tiidee Products, Inc., 194 NLRB 1234, 1236 (1972).

      . Id.

      . Food Store Employees Union, Local No. 347 v. NLRB, 155 U.S.App.D.C. 101, 107, 476 F.2d 546, 552, cert. granted, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973). The court also noted with approval the second ground asserted by the Board in the instant case to deny payment of dues and fees. Id. at 107 n. 10, 476 F.2d at 552 n. 10.

      . Union Br. at 32.

      . Id.

      . Tiidee Products, Inc., 194 NLRB 1234, 1236 (1972).

      . 155 U.S.App.D.C. at 106, 476 F.2d at 551.

      . Tiidee Products, Inc., 174 NLRB 705, 714, 705-06 (1969) ; NLRB Br. at 33 n. 40.

      . International Union of Elec. Workers v. NLRB, 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970).

      . See H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). The power to hold the employer in contempt of the Board does not mitigate the past effects on the employees of the refusal to bargain.

      . See International Union of Elec. Workers v. NLRB, 138 U.S.App.D.C. 249, 257-258, 426 F.2d 1243, 1251-1252, cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970). See also Sullivan v. Murphy, 156 U.S.App.D.C. 28, 60-61 n. 74, 478 F.2d 938, 970-971 n. 74, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973).