NLRB DECISION SUGGESTS FLRA GET TOUGHER
The NLRB, which many judges have told the Authority to look to for guidance, just clobbered an employer that bargained in bad faith by ordering it to pay the union negotiators’ salaries and costs of engaging in the futile and illegal bargaining table discussions. Hospital of Barstow, Inc., 361 NLRB No. 34 (Aug. 29, 2014) This is something we should ask FLRA and arbitrators ruling on bad faith bargaining cases to do as well. Here is how a union might set that up.
First, it appears that the employer must be guilty of deliberately violating the law. In the Board’s case the employer established illegal preconditions on the union before it would bargain and refused to respond to any union proposals. Second, the employer’s actions must have directly caused the union to waste resources. Third, the violation must be one that tends to undermine employee support for the union, e.g., it is highly visible to all employees, it causes employees a tangible loss such as a pay reduction, etc.
The Board began the remedy portion of its decision by not only ordering that employees receive back pay, but that the company compensate them for any tax consequences.
Further, we shall order the Respondent to compensate affected employees for any adverse tax consequences of receiving a lump-sum backpay award and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters for each employee.
It then order the agency to reimburse the union for its costs associated with the illegal bargaining.
In these circumstances, reimbursement of the Union’s negotiation costs is necessary to make the Union whole and to ensure a return to the status quo at the bargaining table. Accordingly, we shall order the Respondent to reimburse the Union for the expenses it incurred for the collective- bargaining negotiations held from July 26, 2012, through January 11, 2013. Such expenses may include, for example, reasonable salaries, travel expenses, and per diems.
Consequently, if a federal sector union has negotiators involved in the illegal bargaining who were compensated by the union rather than the employer during that bargaining, the union should ask that those costs be reimbursed. For example, if a national staff member flew in to work with the union team during bargaining. (Most agency employees’ salaries will have been paid by the official time obligation of the statute.)
Looking down the road at a potential case we expect that agencies will argue that they cannot be obligated to reimburse the union for its costs based on the sovereign immunity doctrine. We will let the parties fight that out when the time comes. However, here is a tip for the union. If the agency argues sovereign immunity ask the FLRA or arbitrator to consider an alternative remedy if he/she agrees sovereign immunity blocks retroactive payment. That worked in AFGE, 55 FLRA 1213 (2000) where the agency successfully convinced the Authority that it could not be obligated to retroactively reimburse employee parking expenses due to sovereign immunity. Consequently the FLRA creatively ordered the agency to lower future parking charges until all the illegal costs employees endured had been covered. The Authority’s order was–
(a) Rescind the increase in parking rates charged to unit employees at its Nashville, Tennessee parking garage implemented on March 12, 1997.
(b) Effect a further decrease in parking rates charged unit employees at the Nashville, Tennessee parking garage for a period of time necessary to offset the difference between the unlawfully implemented rate — $10.96 per pay period — and the former rate — $3.46 per pay period — until such time as the affected employees have been made whole.