§11.11 Consequences of Bad-faith Bargaining

LibraryLabor and Employment Law: Private Sector (OSBar) (2011 Ed.)
§11.11 CONSEQUENCES OF BAD-FAITH BARGAINING

§11.11-1 In General

Upon finding that a party has engaged in an unfair labor practice (ULP), the National Labor Relations Board (NLRB) is authorized to order the party "to cease and desist from such [ULP]" and "to take such affirmative action . . . as will effectuate the policies of [the National Labor Relations Act]." 29 USC §160(c) (NLRA §10)). Thus, if the NLRB finds that an employer has unlawfully refused to bargain, the NLRB will order the employer to cease and desist from that conduct and may order the employer to bargain in good faith with the union on request.

The obligation to bargain in good faith, however, "does not compel either party to agree to a proposal or require the making of a concession." 29 USC §158(d) (NLRA §8(d)).Thus, the NLRB will not order an employer to agree to any particular union proposal, H.K. Porter Co. v. NLRB, 397 US 99, 102-109, 90 S Ct 821, 25 L Ed2d 146 (1970), although it may order the employer to execute a written contract incorporating the terms agreed to by the parties in negotiations, H.J. Heinz Co. v. NLRB, 311 US 514, 526, 61 S Ct 320, 85 L Ed 309 (1941).

If the employer's bad-faith bargaining has caused financial harm to employees, the NLRB's remedial order may include back pay and benefits. See NLRB v. DMR Corp., 795 F2d 472, 477 (5th Cir 1986). More specific remedies may also be imposed depending on the facts of the particular case.

A company policy that is implemented unlawfully and unilaterally may still be the basis for a lawful discharge of an employee for cause. Anheuser-Busch, Inc., 351 NLRB 644 (2007) (even though an employee's misconduct was detected through hidden surveillance cameras that were unlawfully installed by an employer, the employer could still discipline the employee...

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