Mandatory Bargaining Schedules Are Joining NLRB’s Remedy Arsenal

A recent National Labor Relations Board bid to get employers to the bargaining table also has the potential to bring questions about the scope of the board’s remedial powers before federal courts.

In three cases within the last two months, the NLRB has mandated that employers found to have violated federal labor law bargain with their workers’ unions on a strict schedule and submit regular progress reports to agency officials.

This remedy originated from the All Seasons Climate Control decision in 2011, but has been used sparingly since: it was used twice in 2022 and 2021, then once in 2018 and in 2016.

It was employed more recently in decisions against Crushin’ It LLC, Columbus Electric Cooperative, Inc., and Amerigal Construction Co., Inc.

The unusual remedy accompanies others that the board has deployed in the last year, such as ordering employers to provide back pay for laid off workers until the company bargains with the union, compensate labor organizations’ bargaining expenses, and pay employee negotiators for lost wages.

The stricter bargaining remedies represent the latest step in the Democrat-majority board’s efforts to crack down on companies that neglect their duty to negotiate, labor law observers say.

Novel Application

While the remedies themselves aren’t necessarily new, the board seems to be applying them in a novel way, said Steven Bernstein, an attorney with management-side firm Fisher & Phillips LLP. In a majority of the prior cases with bargaining schedule orders, those orders came as part of a default judgment issued after the employers didn’t respond to agency inquiries.

“By defaulting, they exposed themselves to the full brunt of the agency’s remedial authority so this possibly explains why the board did what it did,” Bernstein said. “Employers will be watching to see how more of these turn out but this may become the new normal, at least with default cases.”

The expanded use of remedies mirrors a campaign by NLRB General Counsel Jennifer Abruzzo to give the agency more teeth, said Michael Duff, a labor law professor at St. Louis University. Abruzzo’s desire to seek enhanced remedies dates back to a memo from the beginning of her tenure in 2021, said Duff, a former NLRB attorney.

Abruzzo says in the memo that she wants the agency to seek cases that could allow the board to establish its authority to impose monetary damages on companies that unlawfully refuse to bargain. She also states that remedies such as the bargaining schedules, progress reports, and orders to engage with a federal mediator should be considered.

“It’s not saying the employer has any obligation to agree on a contract and it’s not saying that an employer has to include a certain kind of provision in a collective bargaining agreement, which would not be permissible under the act,” Duff said of the memo. “At the end of the day, this bargaining might be fruitless but this attempts to guarantee that the parties are at least in the room.”

The board also could be employing remedies with specific parameters to make court enforcement simpler, he said. The NLRB doesn’t have the power to enforce its own orders and instead must sue for enforcement in federal court.

“Because the statute is so vague, it usually turns into a finger-pointing competition where unions say, ‘you weren’t bargaining in good faith,’ and the company says, ‘yes we were,’ and so on,” Duff said. “With mandates like these, the board is in a much better position to argue that the order has been breached.”

Supreme Court Doctrine

The courts are likely to side with the agency in appeals from orders to bargain on a set schedule. But the US Supreme Court’s changing stance toward deference to federal agency action could change the calculus.

In West Virginia v. EPA, the high court required federal agencies to point to “clear congressional authorization” when defending their decisions. That ruling, which solidified the major questions doctrine, also altered the long-standing Chevron deference standard that gives agencies wide latitude to interpret ambiguous laws.

Columbus Electric Cooperative Inc. cited the decision when appealing an NLRB order to compensate the union and workers for bargaining expenses and submit negotiation progress reports to the NLRB regional office every 30 days.

But this isn’t the kind of case that is likely to invoke the major questions doctrine, said Anne Marie Lofaso, a labor law professor at West Virginia University.

“They’re going to have to show that this will have a huge effect like West Virginia v. EPA, which was concerning coal. This is trinkets compared to that,” said Lofaso, a former NLRB lawyer. “If I were a board attorney, I would feel pretty good about defending these cases right now.”

But the West Virginia decision does give the courts more room to question administrative decisions, Bernstein said. And with the Supreme Court set to take on another case this fall challenging Chevron, NLRB rulings could soon be under increased scrutiny, he said.

“For now, the courts will continue to err on the side of deference with remedies like this,” Bernstein said. “Although we could be having a very different conversation two to three months from now.”

Risk Mitigation

The companies that face the bargaining schedule remedies were found to have violated the National Labor Relations Act multiple times.

In the Amerigal and Crushin’ It cases, the employers refused to hand information over to the union, ignored repeated requests to schedule bargaining dates, and committed numerous other labor law violations. Both employers then failed to meet deadlines for board procedures.

In the Columbus Electric case, the company delayed responses to the union about bargaining dates, disrupted negotiation sessions, and effectively blocked progress at the bargaining table by submitting proposals that would’ve stripped the union of it’s power to represent employees.

Employers can take steps to mitigate the risk of being hit with bargaining schedules or other enhanced remedies, said Daniel Schudroff, a management-side attorney at Jackson Lewis PC.

Companies should make sure to come to the bargaining table with genuine interest and can prove their intent through records of meetings, exchanging proposals, and communicating with the union, he said.

“I’m reluctant to point out to clients and say ‘if you meet four times this month you’ll be fine’ because showing up isn’t the only piece to it. If you show up and twiddle your thumbs and don’t say anything, that’s not going to be considered good faith bargaining,” he said.

“The board considers the totality of circumstances, whether parties are actually bargaining in good faith or just going through the motions,” Schudroff said.