On April 14, the NLRB found that a California hospital had repeatedly failed to bargain in good faith with a union representing its registered nurses and that an order requiring the hospital to reimburse the union for six months of negotiating expenses was warranted. Fallbrook Hospital Corp., 360 NLRB No. 73. The decision highlights the broad remedies available to the Board when an employer fails to bargain in good faith, and outlines what not to do when negotiating with the union.
The Underlying Facts
The union was certified as the bargaining agent of the hospital’s registered nurses in late May 2012, and negotiations for a first contract began in early July 2012. The union and the hospital met eleven times between July 2012 and January 2013.
During the first eight bargaining sessions, the hospital refused to provide any proposals or counter-proposals, stating that it would not do so until it received all of the union’s proposals. The hospital also left one of the bargaining sessions abruptly without explanation and another of the sessions three minutes after arriving. After the eleventh bargaining session in January 2013, the hospital failed to respond to the union’s requests for future bargaining dates.
The Decision and Order
In May 2013, an NLRB administrative law judge found that the hospital had violated Sections 8(a)(5) and (1) of the Act by failing to bargain in good faith with the union. The ALJ recommended, among other things, a 6-month extension of the certification year, but declined to grant the union’s request that the hospital be ordered to reimburse the union’s negotiating expenses.
The Board agreed with the ALJ that the hospital had failed to bargain in good faith with the union. Additionally, two of the three Board members participating in the decision (Chairman Pearce and Member Hirozawa) found that a 1-year extension of the union’s certification as the nurses’ bargaining agent and an award of the union’s negotiating expenses were necessary to fully remedy the detrimental impact that the hospital’s unlawful conduct had had on the bargaining process.
With respect to the extension of the certification year, Pearce and Hirozawa reasoned that the hospital had “effectively precluded any meaningful bargaining for virtually the entire certification year.” With respect to the award of negotiating expenses, they reasoned that the record showed that the hospital “deliberately acted to prevent any meaningful progress during bargaining sessions” and that the hospital’s misconduct “infected the core of the bargaining process” to such an extent that its effects could not be eliminated by the mere application of the Board’s traditional remedy of an affirmative bargaining order. They also reasoned that requiring the hospital to reimburse the union’s negotiation expenses was warranted to make the union whole for the resources that were wasted because of the hospital’s unlawful conduct.
The Board therefore ordered the hospital to reimburse the union for the negotiating expenses it incurred between July 2012 and January 2013 and explained that such expenses could include reasonable salaries, travel expenses, and per diems. The Board did, however, decline the union’s request that the hospital be ordered to reimburse its litigation expenses and the union’s request that the hospital be ordered to read the Board’s remedial notice to assembled employees during paid working hours.
The decision highlights the significant clubs that the Board has at its disposal when employers are found to have bargained in bad faith. While employers are not often ordered to pay a union’s negotiating expenses, this possibility should not be ignored, especially when engaging in difficult union negotiations.