Last month a Federal Labor Relations Authority administrative law judge found that the National Labor Relations Board, the agency whose duties include determining whether private employers bargain in good faith, violated its duty to bargain with its union under the Federal Service Labor-Management Relations Statute and the Rules and Regulations of the Federal Labor Relations Authority.

The case arose when the union, representing employees working for the NLRB’s General Counsel and the Chairman and Members (the Board) at the headquarters building, requested to bargain over issues related to the relocation of the NLRB’s headquarters. The NLRB and the union ultimately reached a ground rules agreement providing for two days of bargaining. The parties then met for two days, but the Union requested to continue bargaining the following week. The NLRB denied the request, insisting that the ground rules limited bargaining to two days.

The issue before the ALJ was whether, by participating in two days of negotiations called for in the ground rules, the NLRB fulfilled its statutory duty to bargain concerning the relocation. In its defense, the NLRB asserted that the union waived its right to future bargaining when it agreed to the ground rules and that the parties had reached impasse when the second day of bargaining ended.

The ALJ disagreed with the NLRB and chided it for its failure to bargain with the union:

Because the ground rules agreement cannot reasonably be interpreted as limiting the parties’ bargaining period to two days, I conclude that the Union did not waive its right to bargain until either an agreement was reached or the parties had come to an impasse. Additionally, the evidence conclusively demonstrates that the parties had not reached impasse. The parties had only begun to discuss the many issues on the table, neither side had submitted a full range of counterproposals, and the Agency inexplicably refused even to attempt mediation. These factors establish that there was a strong potential for further and productive bargaining, if only the Agency had the patience to persist beyond its arbitrary deadline. Therefore, the Agency violated its duty to bargain and deprived the Union of a proper opportunity to negotiate the impact and implementation of the move to a new headquarters.

The NLRB’s bargaining team included, among others, Andrew Krafts, Deputy Chief General Counsel to Member Nancy Schiffer, and Rachel Lennie, Richard Griffin’s Assistant General Counsel.