Unfair labor practices (ULPs); The National Labor Relations Act (NLRA); 29 USC §§ 158(a)(5) & (1); Failure to bargain with the Union before increasing unit employees’ wages by $2 per hour & then rescinding the increase; “Effects-bargaining” obligations related to using non-unit employees to perform unit work & the temporary pay raise; Administrative law judge (ALJ); Certified Nursing Assistants (CNAs)

On application for enforcement of an NLRB order, the court held that defendant-Metro Man did not commit an ULP when it introduced hazard pay at its nursing home during the COVID-19 pandemic without first bargaining with the Union. Metro Man undertook several special hiring and payment practices during the pandemic. The Union had offered proposals on how to meet staffing shortages, but Metro Man did not respond to its suggestions or notify the Union of the measures it was taking. Among those measures was hiring “non-unit, non-certified nursing aides to do work typically performed by unit CNAs.” When the exigent circumstances ended, the Union filed ULP charges, alleging Metro Man committed ULPs by “failing to bargain with the Union before increasing unit employees’ wages by $2 per hour, using non-unit employees to perform unit work and reducing unit employees’ wages when it rescinded the $2-per-hour pay increase.” The NLRB ordered Metro Man to rescind the wage reduction for unit employees and to reinstate the $2-per-hour pay increase. It also required Metro Man to bargain with the Union and to notify it before making future changes in employment terms. Finally, it altered the ALJ’s “remedy to include not just lost earnings and benefits, but also any other direct or foreseeable pecuniary harms suffered as a result of Metro Man’s unlawful acts.” The court held that the “exigent circumstances posed by COVID excused entirely Metro Man’s decisional-bargaining obligations about the hazard pay and hiring of non-licensed CNAs.” But as to Metro Man’s effects-bargaining obligations related “to its decision to hire non-certified nursing aides[,]” the parties agreed that it “was required to bargain over the effects of” this decision. They disagreed whether it fulfilled this obligation. The court concluded the evidence supported the NLRB’s position in this regard. But the court held that “Metro Man did not commit an [ULP] when it failed to bargain with the Union regarding the effects of the temporary pay raise.” Thus, the court affirmed the NLRB’s conclusion as “to Metro Man’s failure to engage in effects-bargaining regarding its decision to hire non-unit, non-certified nursing aides” but reversed the NLRB’s conclusions as “to Metro Man’s alleged failure to engage in effects-bargaining regarding the implementation of the $2-per-hour pay raise and decisional-bargaining regarding its rescission.” It granted in part and denied in part the NLRB’s petition for enforcement, and remanded.