Employer must pay union's bargaining expenses

Obstinate, pugnacious, and closed mind. After Fallbrook Hospital refused to bargain in good faith with a union representing registered nurses, the NLRB issued an unusual order: The employer must reimburse the union for its negotiating expenses.

The DC Circuit upheld this order – Fallbrook Hospital v. NLRB (DC Cir 05/08/2015) – in a decision by Senior Judge Harry Edwards, an true expert on labor law.

The NLRB found as a fact that the employer had refused to bargain in good faith, and acted in an "obstinate and pugnacious manner," "operated with a closed mind and put up a series of roadblocks designed to thwart and delay bargaining," and that the totality of Fallbrook’s conduct made it "clear" that "there was no intent to bargain."

Once in court, Fallbrook did not contest the underlying factual findings. Its point was that the Board's order went too far. Typically, there are two purposes for a Board order to reimburse bargaining expenses: (1) to redress the effect of past conduct (which Fallbrook did not object to) and (2) to restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.

Fallbrook has now closed the facility where the nurses had worked, so its argument was that there is now no need to provide the union prospective strength at the bargaining table.

The court's reaction:

This argument is not only meritless, it reflects real chutzpah. See, e.g., Harbor Ins. Co. v. Schnabel Found., 946 F.2d 930, 937 n.5 (D.C. Cir. 1991) ("It reminds us of the legal definition of chutzpah: chutzpah is a young man, convicted of murdering his parents, who argues for mercy on the ground that he is an orphan.").

The Board's order was designed to restore the status quo ante. It did. Also, there was nothing in the Board's written order that mentions a second remedial purpose to restore strength to the Union solely for prospective bargaining sessions with Fallbrook.