NLRB begins requiring negotiation schedules as remedies in mandatory bargaining cases
Continuing its expansion of remedies available under the NLRA, the NLRB has begun to mandate that employers schedule negotiation meetings with unions and even submit to the NLRB post-negotiation status updates. See for example the NLRB’s recent decisions in Crushin’ It LLC , Columbus Electric Cooperative, Inc. , and Amerigal Construction Co., Inc.
Here is an example of such language, taken from the Amerigal case:
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord [*4] Burnett Construction Co., 149 NLRB 1419 , 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226 , 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).
Further, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on July 26, 2022.
Additionally, the General Counsel requests that the Respondent be ordered to comply with a bargaining schedule requiring a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining. The General Counsel also requests that the Respondent be required to submit written bargaining progress reports to the Region and the Union every 15 days. As discussed above, the Respondent has unlawfully failed and refused to bargain with the Union for an initial collective-bargaining agreement despite the Union’s repeated requests to bargain over many months. In fact, the Respondent has failed and refused even to meet and/or to schedule any meetings to bargain since July 2022. It also has unlawfully failed and refused to furnish presumptively relevant information that goes to the core of the Union’s duties as the exclusive collective-bargaining representative of the unit employees. Given these circumstances, we find that a bargaining schedule requiring the Respondent to meet and bargain with the Union on a regular and timely basis is appropriate and would best effectuate the purposes of the Act. See Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hospital, 371 NLRB No. 54 , slip op. at 2-3 (2022) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. mem. NLRB v. Serenethos Care Ctr. LLC, No. 22-70014 , [2022 BL 67034], 2022 U.S. App. LEXIS 5285 (9th Cir. Feb. 28, 2022); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (same), enfd. mem. 540 Fed.Appx. 484 (6th Cir. 2013). Accordingly, we shall order the Respondent, within 15 days of the Union’s request, to bargain for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session until the parties reach agreement, lawful impasse, or an agreed-upon respite in bargaining. We shall also require the Respondent to submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and to serve copies of those reports on the Union.
The General Counsel also requests that the Respondent be ordered to mail a copy of the notice to its unit employees because these employees are construction workers who work primarily at locations away from the Respondent’s facility. The General Counsel asserts that a notice mailing is necessary to ensure that all unit employees are informed of the Board’s order. We agree that this remedy is particularly appropriate to the work situation here and shall order the Respondent to mail a copy of the notice to all unit employees employed since July 26, 2022, when the Respondent began its unlawful conduct. See Bevilacqua Asphalt Corp.[*5] , 369 NLRB No. 96 , slip op. at 2 (2020) (ordering notice mailing where employer operated a quarry and asphalt plant and certain employees, particularly truckdrivers, did not regularly enter respondent’s office); Abramson, LLC, 345 NLRB 171, 171 fn. 3 (2005) (ordering notice mailing where unit employees worked on individual construction sites across a two-state region).4