Nlra Case Notes

• Publication year: 2015
• Author: By Richa Amar & Jonathan Cohen

NLRA Case Notes

By Richa Amar & Jonathan Cohen

Richa Amar is a staff attorney with the United Nurses Associations of California/Union of Health Care Professionals, a labor organization representing more than 20,000 health care professionals throughout Southern California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

D.C. Circuit Upholds Board's Award of Negotiating Expenses Against Employer for Refusal to Bargain in Good Faith

Fallbrook Hosp. Corp. v. NLRB, 785 F.3d 729 (D.C. Cir. 2015)

A three-member panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld a Board decision finding the employer violated sections 8(a)(1) and (5) of the National Labor Relations Act (Act) by refusing to bargain in good faith. It also upheld the award of an affirmative bargaining order, one-year extension of the certification year, cease-and-desist order, and reimbursement of negotiation expenses. The employer petitioned for review of the Board's decision ordering it to pay negotiation expenses to the union. The Board cross-petitioned for enforcement of its order.

After the union was certified to represent a bargaining unit of registered nurses working in the employer hospital's acute care unit, the parties held their first bargaining session on July 3, 2012. The record showed that the employer engaged in bad-faith bargaining from the outset and through the final bargaining session on January 8, 2013. The employer's conduct included: failing to provide any counterproposals during the first eight sessions and until it received a full set of the union's proposals, abruptly and inexplicably leaving one bargaining session and leaving another a mere three minutes after arriving; threatening not to bargain if the union continued encouraging employees to use "assignment despite objection (ADO)" forms; falsely claiming the nurses' use of ADO forms caused impasse; and refusing to respond to requests for future bargaining dates. In light of the employer's "obstinate and pugnacious" conduct, the Board found a negotiation expense reimbursement remedy to be appropriate for the period July 3, 2012 to January 8, 2013 because the employer's unfair labor practices "infected the core of a bargaining process to such an extent that their effects cannot be eliminated by the application of traditional remedies." It further found that such a remedy was warranted to make whole the union for resources it wasted because of the employer's unlawful conduct and to restore the union's economic strength at the bargaining table. "Such expenses may include, for example, reasonable salaries, travel expenses, and per diems."

Following the Board's decision, the employer terminated the entire bargaining unit by closing its acute care facility. Thus, before the D.C. Circuit, it challenged only the reimbursement of negotiation expenses. The employer also filed a motion to remand to allow the Board to consider whether the remedy was still justified based on "integral changed circumstances," namely that the union's strength at the bargaining table was now unnecessary because the employer no longer employed any represented employees, would never resume negotiations, and had reached impasse over bargaining the effects of the hospital's closure.

Because the employer neither contested the Board's findings that it violated the Act nor any of the remedies ordered, aside from the negotiation expense reimbursement, the court summarily enforced the Board's findings and uncontested remedies. Applying a "clear abuse of discretion" standard, the court found that the Board's remedy of negotiation expense reimbursement was supported by substantial evidence and was "eminently rational" The court rejected the employer's assertion that it did not engage in unusually aggravated misconduct, explaining that there are no per se rules for when negotiation expense reimbursement would be ordered and that the Board has broad discretion to determine when reimbursement is warranted on a case-by-case basis. Finally, as to the employer's motion to remand, the court had this to say: "This argument is not only meritless, it reflects real chutzpah___'It reminds us of the...