Labor & Employment Law Daily Wrap Up, LABOR—BARGAINING—3d: Publishing company’s impasse declaration, unilateral implementation of terms constituted bad faith bargaining, (Nov 12, 2025)

By Ronald Miller, J.D.

In determining whether a party has violated its statutory duty to bargain in good faith, the totality of a party’s conduct is relevant.

Substantial evidence supported the NLRB’s finding that a publishing company bargained in bad faith when it declared impasse and unilaterally implemented terms and conditions of employment, ruled the Third Circuit in a nonprecedential decision. The employer’s proposals as a whole would have required the union to cede to the employer the most fundamental of employment terms, such as the subcontracting bargaining unit work and unilateral control of work hours. Substantial evidence supported an ALJ’s findings that no impasse had occurred by July 27, 2020, and that the employer gave “the impression of surveillance,” in violation of Section 8(a)(1), when security guards took photographs of union members at rallies. Finally, the appeals court determined that it lacked jurisdiction under Section 10(e) to consider the employer’s challenge to the Board’s make-whole remedies because the employer failed to expound on the rationale for its objection sufficient to preserve the issue (PG Publishing Co., Inc., dba Pittsburgh Post Gazette v. NLRB, Nos. 24-2788 and 24-3057 (3d Cir. Nov. 10, 2025, nonprecedential)).

The employer and the union executed successive collective bargaining agreements between 2014 and 2017; however, since 2017, the parties have been unable to agree on terms for a new agreement.

First charge. On August 6, 2019, the employer presented the union with a “best offer” contract proposal. This proposal reflected the employer’s prior offers on most issues. On September 6, 2019, the parties met again. At this meeting, the union presented a counterproposal. The parties continued to disagree on various issues, but did not review the entire union proposal in the September 6 bargaining session. On September 11, 2019, the union filed its first charge against the employer, alleging that it violated Section 8(a)(5) of the Act by “fail[ing] and refus[ing] to bargain in good faith” over the preceding six months.

Impasse declared. After the September 2019 meeting, the parties met again in February 2020, but failed to resolve key issues, including wages, hours, and bargaining unit jurisdiction. On May 22, 2020, the employer sent a written response to the union’s September 6, 2019, contract proposal. The union did not respond. On June 12, 2020, the employer sent a letter to the union to convey its “last, best, and final offer.” Most of the proposals in the final offer were the same as those offered on August 6, 2019. After an exchange of letters in which the parties expressed disagreement as to whether impasse had been reached, the employer declared impasse and unilaterally implemented terms and conditions of employment on July 27, 2020.

Second charge. On July 29, the union filed its second charge against the employer with the Board, alleging that the employer (1) “failed and refused to engage in good faith bargaining for a successor contract” and (2) “unlawfully declared impasse,” and “unilaterally implemented portions of its ‘Final Offer’ … in violation of Section 8(a)(5) of the Act.”

Surveillance. In September and October 2020, the union held rallies protesting the employer’s decision to declare impasse and to unilaterally impose contract terms, including in front of the home of the publisher. The employer hired two security guards to be present during these rallies, and two of these guards appeared to take photographs of rally participants. On November 20, 2020, the union filed another charge, alleging that the employer “has conducted surveillance of union activities” in violation of the Act.

Board ruling. After a hearing, on January 6, 2023, an administrative law judge issued a decision finding that the employer committed each violation as charged by “engag[ing] in overall bad-faith bargaining by presenting contract proposals that, when considered as a whole, evidence an intent not to reach agreement;” by “prematurely declaring impasse;” and by lawfully surveilling protestors. On September 20, 2024, the Board issued its order affirming the ALJ’s findings and remedies imposed, and further ordering the employer to compensate the union for bargaining expenses it incurred during the time the employer was found to have engaged in bad faith bargaining.

The employer filed a petition for review of the Board’s decision, and the Board cross-applied for enforcement of its order.

Bad faith bargaining. On appeal, the employer argued that the ALJ improperly found that it bargained in bad faith because the ALJ’s decision was based solely on the substance of the employer’s bargaining proposals. The Third Circuit disagreed.

In determining whether a party has violated its statutory duty to bargain in good faith, the totality of a party’s conduct is relevant. While a party is not required to make concessions or yield on a genuinely held position, “rigid adherence to disadvantageous proposals may provide a basis for inferring bad faith.” Where the employer’s proposals leave the union members with substantially fewer rights than the law would provide them without a contract, an inference of bad faith may be appropriate. The ALJ found that the employer’s proposals warranted such an inference here and noted that a range of its proposals were “at odds with the basic concept of a collective-bargaining agreement.”

Fundamental of employment terms. Substantial evidence supported the ALJ’s finding that the employer bargained in bad faith. The appeals court found that the employer’s proposals as a whole would have required the union to cede to the employer the most fundamental of employment terms, such as subcontracting bargaining unit work and unilateral control of work hours. Additionally, the final offer vastly expanded the expired agreement’s no-strike clause and scaled back employees’ healthcare. Union members would have been afforded more rights working without a contract than by accepting all the employer’s proposals.

Impasse. Moreover, the Board did not err in finding that the employer violated Section 8(a)(1) and (5) of the Act by improperly declaring impasse. An employer violates Sections 8(a)(1) and (5) “if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment.” The Board considers five factors to determine whether impasse has been reached: “‘(1) [t]he bargaining history, (2) the good faith of the parties in negotiations, (3) the length of the negotiations, (4) the importance of the issue or issues as to which there is disagreement, and (5) the contemporaneous understanding of the parties as to the state of negotiations.’”

Good faith. The second factor was particularly important. When the asserted deadlock is caused by bad faith by one of the parties, “it is manifest that there can be no legally cognizable impasse … which justifies unilateral action.” Here, the appeals court’s review of the record revealed that substantial evidence supported the ALJ’s finding that no impasse had occurred by July 27, 2020.

In considering the parties’ understanding of the state of negotiations, the ALJ found that the employer declared impasse “at a time in negotiations when neither party would have been warranted in assuming that further bargaining would be futile and when neither party could have reasonably believed that they were at the end of their rope.” Specifically, on July 27, 2020, the parties had not finished discussing the union’s most recent proposal from September 2019 and the country was in the midst of a pandemic. On July 20, 2020, the union stated that it was willing to meet with the employer to go through its September 2019 offer, and asked the employer for dates on which it could meet. The employer did not respond to this letter but instead declared an impasse.

Accordingly, substantial evidence supported the ALJ’s finding that the employer prematurely declared impasse. Thus, the employer was denied its petition for review and the Board’s application to enforcement of that part of the order finding an improper declaration of impasse was granted.

Unlawful surveillance. Here, the ALJ found that security guards hired by the employer appeared to take photographs of union members at their rallies across the street from the publisher’s home in October 2020. Moreover, the ALJ found that the evidence did not support a conclusion that the photographs were taken for any other purpose, such as documenting union members trespassing upon private property. Under such circumstances, substantial evidence supported the ALJ’s conclusion that the employer gave “the impression of surveillance” in violation of Section 8(a)(1).

Make-whole remedies. Finally, the appeals court determined that it lacked jurisdiction under Section 10(e) of the Act to consider the employer’s challenge to the make-whole remedies. The Board ordered the employer to pay make-whole remedies consistent with the Board’s decision in Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13, 2022). The employer failed to place the Board on adequate notice of the basis for its objection to the so-called Thryv remedy. Merely quoting the remedy from the text of the ALJ’s order, without expounding on the rationale for the objection, was insufficient to preserve the issue.

Accordingly, the employer did not preserve its argument with respect to the Board’s Thryv remedy, and the appeals court lacked jurisdiction under Section 10(e) to disturb this part of the order.

The case is Nos. 24-2788 and 24-3057.

Judge: Chung, C.

Attorneys: Brian M. Hentosz (Littler Mendelson) for PG Publishing Co., Inc., dba Pittsburgh Post Gazette. Joel Heller for NLRB. Maneesh Sharma, AFL-CIO and Joseph J. Pass (Jubelirer Pass & Intrieri) for Newspaper Guild of Pittsburgh Communication Workers of America AFL-CIO Local 38061.

Companies: PG Publishing Co., Inc.; Pittsburgh Post Gazette

Cases: Labor Bargaining UnfairLaborPractices AgencyNews DelawareNews NewJerseyNews PennsylvaniaNews GCNNews