NLRB Affirms Broad Remedial Order for Employer's Bad-faith Bargaining, Unfair Labor Practices | Practical Law

NLRB Affirms Broad Remedial Order for Employer's Bad-faith Bargaining, Unfair Labor Practices | Practical Law

The National Labor Relations Board (NLRB) recently held in Ampersand Publishing, LLC that an employer that engages in bad-faith bargaining and commits several other unfair labor practices (ULP) may be subject to a broad cease and desist order and required to reimburse its employees' union for bargaining expenses. 

NLRB Affirms Broad Remedial Order for Employer's Bad-faith Bargaining, Unfair Labor Practices

by PLC Labor & Employment
Law stated as of 11 Aug 2022 • USA (National/Federal)
The National Labor Relations Board (NLRB) recently held in Ampersand Publishing, LLC that an employer that engages in bad-faith bargaining and commits several other unfair labor practices (ULP) may be subject to a broad cease and desist order and required to reimburse its employees' union for bargaining expenses.

Key Litigated Issues

The key litigated issues in Ampersand Publishing, LLC were whether it was appropriate to order broad remedies including cease and desist orders, public readings of the Board's order and reimbursement of the union's bargaining expenses, even though the NLRB initially ordered those remedies while relying on:
  • Since-vacated unfair labor practice (ULP) determinations.
  • A conclusion that the employer had a proclivity to violate the NLRA, which was nullified when the ULP determinations from a year earlier were vacated.

Background

Ampersand Publishing, LLC (Ampersand) publishes a daily newspaper called the Santa Barbara News-Press. An NLRB administrative law judge and the panel (Board) heading the NLRB's judicial functions held that Ampersand committed many ULPs including unlawfully discharging two newsroom employees (see Legal Update, NLRB Protects Newsroom Employees' Protests and Call for Boycott by Subscribers). Ampersand defended its actions on First Amendment grounds and the US Court of Appeals for the District of Columbia Circuit vacated the Board's ULP determinations (see Legal Update, First Amendment Trumps NLRA; NLRA Does Not Protect Employees' Concerted Protests of Newspaper's Editorial Policies: DC Circuit).
After the Board's ULP determinations, but before the DC Circuit vacated them, on September 27, 2012 the Board held that Ampersand committed other ULPs by failing to bargain with its employees' union and subpoenaing NLRB witnesses' confidential affidavits to the NLRB. The Board ordered broad remedies including cease and desist orders, public readings of the Board's order and reimbursement of the union's bargaining expenses even though the NLRB initially ordered those remedies while relying largely on:
  • The ULP determinations that were then on appeal to the DC Circuit.
  • A conclusion that the employer had a proclivity to violate the NLRA because, in considering those earlier ULP determinations, the Board had found that Ampersand committed ULPs in two consecutive years.
On October 25, 2012, Ampersand filed a motion for reconsideration to the Board.

Outcome

On May 31, 2013, the Board issued an opinion affirming the broad remedial order against Ampersand and denying the motion for reconsideration. The Board reasoned that Ampersand's conduct showed an unmistakable campaign to undermine the bargaining rights of its employees when it committed the following ULPs:
  • Transferring bargaining unit work to nonunit freelance reporters.
  • Prohibiting employees from discussing matters involving their terms of employment.
  • Insisting on proposals requiring the status of employees to remain at-will.
  • Dealing directly with unit employees with regard to their terms of employment.
  • Implementing unilateral changes concerning mandatory subjects of bargaining, such as:
    • setting production quotas;
    • changing the timing of employee performance evaluations; and
    • cancelling merit increases.
The Board acknowledged that it could no longer rely on:
  • Its ULP determinations from the prior year because they were vacated.
  • Its conclusion that the employer had a proclivity to violate the NLRA, since there were no longer ULP determinations in two consecutive years.
However, broad remedies were appropriate because the employer's misconduct was still egregious and widespread (Hickmott Foods).
Consequently, the Board affirmed its decision to:
  • Impose a broad cease-and-desist order forbidding Ampersand from interfering with employees' Section 7 rights in any way.
  • Require Ampersand to read the NLRB Order to its employees.
  • Extend the union's certification year (presumption that the union has the support of the majority of bargaining unit employees) by 12 months.
  • Order Ampersand to reimburse the union for its negotiating expenses.
The Board also found that Ampersand did not raise any extraordinary circumstances warranting reconsideration of the underlying decision. Ampersand's argument for reconsideration centered on its belief that its employees were attempting to seize editorial control of the newspaper through their bargaining proposals. However, the Board interpreted the union's collective bargaining agreement proposals to demonstrate that the union agreed that editorial control should rest with Ampersand. The Board also found that Ampersand's contract demands would strip the union of powers necessary to serve as its members' bargaining representative.
The Board further found that Ampersand waived the thrust of its potential First Amendment argument, if it were to appeal this decision, when it did not amend its motion for reconsideration to assert that the DC Circuit's decision vacating the Board's earlier ULP decision was persuasive or controlling precedent in this case.
The Board also rejected an argument that it lacked authority to sua sponte require Ampersand to reimburse the union for its collective bargaining costs (Regency Service Carts, Inc.)

Practical Implications

Ampersand Publishing, LLC shows that the Board is currently inclined to impose broad remedies even when:
  • There are no unlawful discharge findings.
  • The Board cannot rely on the ULP "proclivity" factor in Hickmott for determining whether to order broad remedies.
Employers should also note that the NLRB appeared to:
  • Presume that Ampersand will appeal this decision, relying in part on extending the DC Circuit's decision on its First Amendment rights.
  • Peremptorily attack that argument as not preserved for appeal.
In response, employers should:
  • Anticipate that the Board will assert in appellate proceedings that arguments not raised before it in exceptions briefs or in motions for reconsideration are waived.
  • Preserve for appeal arguments based on new precedent by:
    • amending pending motions for reconsideration to raise new arguments before the Board; or
    • filing motions for reconsideration to the Board before pursuing appeals on those arguments to circuit courts.

Court Documents

UPDATE

On August 11, 2022, the Ninth Circuit upheld the Board's order requiring the employer to reimburse the union for legal fees incurred during the collective bargaining process (NLRB v. Ampersand Publishing, LLC, (9th Cir. Aug. 11, 2022); for more information, see Legal Update, NLRB Can Order Employer to Reimburse Union for Legal Fees Incurred During Bargaining: Ninth Circuit). In a concurrently filed unpublished opinion, the Ninth Circuit granted the NLRB's petition for enforcement of its compliance order against the employer (NLRB v. Ampersand Publishing, LLC, (9th Cir. Aug. 11, 2022)).