NLRB Hits Employer With Onerous Remedies

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.