Skip to content

NLRB Hits Employer With Onerous Remedies

June 14, 2023

On June 8, in Columbus Electric Cooperative, Inc., 372 NLRB No. 89, the National Labor Relations Board (NLRB) issued a decision that hit an employer with a set of enhanced remedies. To begin, the NLRB held the employer engaged in bad faith bargaining during negotiations for an initial contract with a union. The Board based this holding on findings that the employer failed to timely respond to the union’s requests to begin negotiations, insisted on recording the initial bargaining session, refused to bargain pending resolution of unfair labor practice charges, made overly broad and regressive proposals that would have undermined the representative role of the union, and failed to provide information requested by the union.

The Board went beyond its usual “cease and desist” order and instead issued an “affirmative bargaining order” to extend for 12 months the certification year in which the union is immune from a decertification petition. The Board also required the employer to:

  • Submit written progress reports to the NLRB’s regional office (with a copy to the union) every thirty calendar days until the parties reach an agreement or impasse.
  • Compensate the union for all bargaining expenses it incurred for a seven-month period in 2021.
  • Though not originally ordered by the administrative law judge, the Board added a “make whole” remedy requiring backpay to any employee negotiators for any earnings lost while attending bargaining sessions. The Board ordered the employer to include interest and to “compensate the affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award.”

This decision shows the Board’s willingness to hit employers with onerous remedies in cases related to union negotiations. Employers should take care to make sure their conduct and negotiation strategy comports with the Board’s definition of good faith bargaining. Employers should also be aware of, and carefully consider, the Board’s willingness to issue orders which go well beyond a requirement to cease and desist from conduct found to be unlawful.

Clark Hill attorneys are prepared to partner with employers to navigate the unionization and negotiation process. For more information, please contact Rick Fanning at rfanning@clarkhill.com or the Clark Hill attorney with whom you regularly work.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice. 

Subscribe for the latest

Subscribe

Related

Event

Webinar: Special Education Bootcamp - Compliance Foundations Under IDEA

Whether you are new to special education leadership or looking to reinforce your foundational knowledge, this interactive webinar will provide a comprehensive overview of the core compliance requirements under the Individuals with Disabilities Education Act (IDEA). Designed for school leaders who are responsible for ensuring legally sound practices, this session will offer practical tools and strategies to help participants navigate common procedural and substantive pitfalls, support sound decision-making, and build a compliant and student-centered special education program.

Explore more
Event

Telehealth Week Webinar 2025: Navigating Legal Changes and Future Trends for Healthcare Providers

Join Paul Schmeltzer, Carrie Foote, and John Howard for our one-hour annual Telehealth Week webinar, focused on the evolving legal landscape of telehealth. This session will cover key topics, including the upcoming DEA final rule on prescribing controlled substances via telehealth, federal reimbursement concerns for telehealth, and what healthcare providers need to prepare for other upcoming changes.

Explore more
Event

2025 Cybersecurity and Data Privacy Laws Summit

Join us for an immersive half-day seminar exploring the rapidly evolving landscape of cybersecurity, data privacy, and AI-related regulation. This year’s summit will feature dynamic discussions with industry leaders, offering practical insights into the tools, tactics, and legal implications shaping incident response and AI accountability in 2026 and beyond.

Explore more