Threshold for Penalizing Employers and Awarding Negotiation Costs to Unions is Lowered

Companies have another worry to add to their plate – the Board’s increased propensity to award negotiation costs as a remedy for bad faith bargaining.

The Board recently ruled that a company engaged in bad faith bargaining by: (i) refusing to submit proposals or counterproposals over eight bargaining sessions until the union submitted an entire contract proposal; (ii) leaving 2 of 11 bargaining sessions early; (iii) declaring impasse and leaving another session after 15 minutes; (iv) refusing to respond to the union’s request for bargaining dates after impasse; (v) refusing to bargain over terminated employees; and (vi) refusing to respond to 1 of 12 information requests.

The Board permits an award of negotiating expenses in limited circumstances such as “in cases of unusually aggravated misconduct…where it may fairly be said that a respondent’s substantial unfair labor practices have infected the core of a bargaining process to such an extent…” that traditional remedies will not eliminate their effects.

In an earlier case, the Board awarded bargaining expenses where bad faith bargaining included such egregious acts as insisting on proposals that gave the union no role in representing employees, discriminatory discharges, unilateral changes to working conditions, overbroad rules, illegal polling, an improper withdrawal of recognition, and failures to provide information.

In the instant case, the administrative law judge declined to award negotiation costs, but the Board disagreed and awarded the costs. The D.C. Circuit enforced the decision stating that it has no business second-guessing the Board’s judgment regarding remedies. The Board’s abuse of power would have to be so gross as to be arbitrary before the D.C. Circuit said it would reverse the remedy. Unfortunately, the D.C. Circuit has a different definition of “so gross” than does this author.

The Board awarded negotiation costs despite conduct that was significantly less severe than in previous cases where such costs were awarded. The Board’s award coupled with its enforcement by the D.C. Circuit opens the door to the Board awarding costs in even less egregious cases than seen in the past. This is a slippery slope that horrifically hurts employers at the bargaining table. With the Board’s propensity to find common management bargaining tactics as unlawful bad faith bargaining, the now lowered threshold for awarding monetary negotiation costs to unions erodes a company’s ability to effectively negotiate a collective bargaining agreement.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at