Can the NLRB Order Bad Faith Bargainers To Pay A Union’s Negotiating Costs?

Source: Scott Hochberg, OnLabor blog, May 20, 2015

The NLRB’s power to remedy violations of §8 of the NLRA is usually quite limited: it can issue cease and desist letters, order the parties to bargain in good faith, and require reinstatement and backpay for individual employees (along with several less common remedies). The Board’s authority derives from §10 of the NLRA, which the Supreme Court has interpreted as being entirely remedial; under the Court’s caselaw, the Board is not empowered to issue punitive remedies. Some have criticized this remedial scheme as overly circumscribed, allowing for little flexibility to deter willful or repeat violations of the Act. In Fallbrook Hospital Corporation v. NLRB, the DC Circuit recently opened the door for unions to recover the costs incurred while dealing with an employer that has negotiated in bad faith—at least if the violations were repeated and egregious. A discussion of the case and its meaning for labor-management negotiations follows.