Bad Faith Bargainer Beware: D.C. Circuit Enforces Award of Negotiation Costs

Last year the NLRB demonstrated an increased willingness to award negotiation costs as a remedy for bad faith bargaining in cases that are far less egregious than those where the remedy historically was given. Hospital of Barstow, Inc., 361 NLRB No. 34 (2014); Fallbrook Hospital, 360 NLRB No. 73 (2014). On May 8, 2015, the D.C. Circuit Court of Appeals upheld the award of negotiating expenses in Fallbrook Hospital, finding under a clear abuse of discretion standard that the Board’s decision was “amply supported by substantial evidence in the record and has a rational basis in the law.” Fallbrook Hospital Corp. v. NLRB, Case No. 14-1056 (D.C. Cir. May 8, 2015).

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