Administrative law judge determines that based on Employer’s proposals it could not seriously have expected meaningful collective bargaining

In a win for the Union, Administrative Law Judge (“ALJ”) John J. McCarrick found bad-faith bargaining by Windsor Convalescent Center of North Long Beach (“Employer”), in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (“Act”).  Case No. 21-CA-39703.

To determine if negotiations have been used to frustrate or avoid mutual agreement, unlawful “surface bargaining,” the Board examines the totality of a party’s conduct during bargaining, both at and away from the table.  Regency Service Carts, Inc. 345 NLRB 671 (2005).  Factors that traditionally suggest surface bargaining violations include: delaying tactics, the nature of the bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of already-agreed-upon provisions, and arbitrary scheduling of meetings.

In this case, the Employer made a “discipline and discharge” proposal that listed 53 separate offenses warranting discipline, allowed the Employer to unilaterally add offenses to this list, and limited any arbitrator’s ability to determine if discipline was for cause—all coupled with extremely broad no-strike language.

Even more outrageously, the Employer’s grievance and arbitration proposal restricted employees from filling both federal and state statutory claims, including claims arising under the Act.

On top of these extreme proposals, the Employer proposed a management-rights clause that would have given it the unilateral right to have managers perform bargaining-unit work and to subcontract bargaining-unit work.

Finally, the Employer also made a proposal that would have allowed it to unilaterally change or delete any benefit, such as vacation, holidays, paid sick leave, and health insurance.

The ALJ determined that several of the Employer’s proposals unacceptably “left employees with fewer rights than if they had no collective bargaining agreement.”

Taken as a whole, the Employer’s proposals established it insisted on unilateral control of virtually all significant terms and conditions of employment of bargaining-unit employees such that the Employer could not seriously have expected meaningful collective bargaining.  This could not stand.  Finding violations of Section 8(a)(5) and (1), the ALJ made a cease and desist order with additional affirmative remedies.

By Lisl Duncan

Legal Developments