On April 14, 2014, the National Labor Relations Board issued an order in Fallbrook Hospital, 360 NLRB No. 73 (2014), modifying the remedy for an employer’s bad-faith bargaining conduct. The administrative law judge recommended, among other things, a 6-month extension of the certification union, but declined to grant the union’s request for reimbursement for its negotiation expenses. The Board, however, disagreed:
Having examined the record evidence of the [employer's] bad-faith bargaining conduct, we find … that both a full 1-year extension of the certification year pursuant to Mar-Jac Poultry, 136 NLRB 785 (1962), and an award of negotiating expenses are necessary to fully remedy the detrimental impact the Respondent’s unlawful conduct has had on the bargaining process.
The basis for the Board’s award was the fact that the employer “deliberately acted to prevent any meaningful progress during bargaining sessions that were held as:
- the employer’s bargaining team failed to provide any proposals or counter-proposals during the first eight bargaining sessions until it received a full set of proposals from the Union;
- left a bargaining session abruptly and without explanation;
- left another bargaining session 3 minutes after arriving;
- although the employer proffered some proposals during the next three bargaining sessions, it subsequently threatened that it would not continue bargaining if the Union persisted in encouraging employees’ use of the Union’s assignment despite obejction (ADO) form;
- the employer then falsely claimed that the nurses’ use of the ADO forms caused the parties to be at impasse, refused to bargain further, and left the meeting after about 15 minutes; and
- thereafter, the employer reaffirmed its refusal to bargain when it refused to respond to the Union’s requests for future bargaining dates.
As a result, the Board found that the employer’s misconduct:
infected the core of the bargaining process to such an extent that its effects cannot be eliminated by the mere application of our traditional remedy of an affirmative bargaining order. In these circumstances, requiring the [employer] to reimburse the Union’s negotiating expenses is also “warranted both to make the (Union) whole for the resources that were wasted because of the [employer's] unlawful conduct, adn to restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.”
Member Johnson disagreed with Chairman Pearce and Member Hirozawa’s award of negotiation expenses to the union, finding that the employer’s conduct was not so “unusually aggravted” as to “have infected the core of [the] bargaining process” as the misconduct of the employer in Frontier Hotel & Casino, 318 NLRB 857 (1998), where the Board similarly awarded negotiating expenses. The Board, however, unanimously agreed that requiring the employer to reimburse the union for its litigation expenses was not warranted, “as the defenses raised by the Respondent, although found to be without merit, were not frivolous.”