Troutbrook Company LLC, D/ B / A Brooklyn 181 Hospitality LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2023 Decided July 12, 2024
No. 23-1025
TROUTBROOK C OMPANY LLC, D/ B / A B ROOKLYN 181
HOSPITALITY LLC,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS B OARD ,
R ESPONDENT
Consolidated with 23-1030
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Thomas G. Eron argued the cause for petitioner. With him
on the briefs was Raymond J. Pascucci.
David A. Seid, Senior Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David S. Habenstreit,

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Assistant General Counsel, and Milakshmi V. Rajapakse,
Supervisory Attorney.
Before: R AO and GARCIA, Circuit Judges, and R OGERS ,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
Dissenting opinion filed by Circuit Judge R AO .
GARCIA, Circuit Judge: The National Labor Relations Act
specifies the topics over which an employer must bargain in
good faith with an employee representative. The National
Labor Relations Board held that Troutbrook Company, LLC
violated the Act by resolutely refusing to discuss certain of
those mandatory subjects—including wages, health benefits,
and retirement benefits—throughout months of negotiations
over an initial collective bargaining agreement for one of its
hotels. Troutbrook now petitions for review of the Board’s
decision. Because substantial evidence supports the Board’s
determination, we deny Troutbrook’s petition and grant the
Board’s cross-application for enforcement of its order.
I
A
Troutbrook owns and operates a sixty-room hotel in
Brooklyn, New York. On September 24, 2018, after the hotel’s
employees voted for union representation, the Board certified
New York Hotel and Motel Trades Council, AFL-CIO (“the
Union”) as their exclusive collective-bargaining
representative. Troutbrook challenged the certification and
refused to bargain with the Union. On June 3, 2019, the Board
found the company’s refusal unlawful and ordered it to

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recognize and bargain with the Union. See Troutbrook Co.
d/b/a Brooklyn 181 Hosp., LLC & N.Y. Hotel & Motel Trades
Council, AFL-CIO, 367 N.L.R.B. No. 139 (June 3, 2019). On
February 28, 2020, we denied Troutbrook’s petition for review
and granted the Board’s cross-application for enforcement.
Troutbrook Co. v. NLRB, 801 F. App’x 781 (D.C. Cir. 2020).
A few months later, Troutbrook and the Union began
negotiating an initial collective-bargaining agreement. The
parties met six times by teleconference: three times in mid-
2020 and, after a hiatus due to the COVID-19 pandemic, three
times in early 2021. The Union’s primary spokesperson during
negotiations was Assistant General Counsel Gideon Martin.
Martin was assisted by Union General Counsel and Executive
Vice President Rich Maroko. Attorney Raymond Pascucci
served as the primary spokesperson for Troutbrook.
On May 18, 2020, before the parties’ first bargaining
session, Martin sent Pascucci the Union’s proposal, which
comprised its Industry-Wide Agreement with the Hotel
Association of New York City, Inc. (“IWA”) and a
Memorandum of Understanding modifying the IWA’s terms
for Troutbrook’s hotel. During the session, Maroko presented
the proposal’s terms, covering both economic subjects (e.g.,
wages, severance pay, and sick leave) and non-economic
subjects (e.g., union recognition, non-discrimination
requirements, and agreement duration). The Union voiced its
preference that Troutbrook sign onto the IWA and offered to
answer any questions. Pascucci said that he needed time to
review the proposal with the company.
On June 4, 2020, the parties met for a second session. At
the start of the call, Pascucci proposed ground rules to guide
the parties’ negotiations, including that the “[p]arties would
focus on non[-]economic issues before moving onto economic

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issues.” J.A. 96; see J.A. 300. Maroko countered that the
Union preferred to discuss all issues without limiting the topics.
The parties then turned to the Union’s proposal. Pascucci
stated that Troutbrook was “not willing to accept the IWA,
whatsoever.” J.A. 96. He explained that the pandemic had
significantly altered the hotel industry’s labor market and room
rates and that the company sought a standalone agreement
tailored to its hotel. Maroko asked whether Troutbrook took
issue with specific provisions of the IWA, and Pascucci
clarified that the entire agreement was “way too convoluted
and unnecessarily complex and burdensome.” J.A. 97.
Maroko said he understood if Troutbrook wanted to discuss
particular subjects of concern, but he objected to the company’s
wholesale rejection of the IWA as a starting point for
negotiations. Pascucci asked if Maroko viewed the IWA as a
“one size fits all” document, and Maroko initially said yes.
J.A. 97. But he then made clear that “[i]f [Troutbrook] raise[s]
issues that are legitimate, [the Union will] be flexible on them.”
J.A. 98. After Maroko requested a counterproposal, Pascucci
stated that the company’s response would address “just some
of the articles” in the IWA rather than the whole agreement.
Id. Maroko replied that good-faith bargaining required a
complete counterproposal. Pascucci disagreed, claiming that
the parties could make more progress by considering a few
issues at a time.
Between June 4 and June 18, 2020, Pascucci and Martin
exchanged emails. Pascucci presented in writing Troutbrook’s
proposed ground rules from the second session, including the
proposal to defer discussion of economic subjects. Martin
rejected that ground rule, though he agreed to some others. In
his words, the Union “d[id] not want to constrain the parties’
capability to freely explore and discuss any items, such as

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specific proposals, terms, or conditions, during bargaining
sessions.” J.A. 107.
Pascucci countered with a modification: “The parties
agree to focus primarily on non-economic subjects before
turning to economic subjects, but it is understood that this
general framework does not preclude either party from raising
and freely discussing any item at any point during the
bargaining process.” J.A. 105. Martin again rejected the rule
as unnecessarily restrictive and asked whether Troutbrook was
“refusing to have meaningful discussion on economics until all
non-economic subjects are addressed.” J.A. 103. Pascucci
replied that Troutbrook was prepared to move forward without
a formal, agreed-upon rule, but that “[i]n responding to the
Union’s proposals, the [company] will focus on non-economic
subjects first.” J.A. 101.
On June 25, 2020, the parties conferred for a third time.
After an update on the hotel’s operations, Pascucci briefly
introduced six “non-economic counterproposals” addressing
recognition of the Union, non-discrimination, a prohibition on
strikes and lockouts, a probationary period for new employees,
hours of work, and the effective dates of any agreement.
J.A. 112–13, 120–21. Martin suggested it was “worth walking
through” the counterproposals. J.A. 112. Because the
effective-dates counterproposal was a placeholder, he asked if
Troutbrook knew how long it wanted any agreement to be
valid. J.A. 113. The company had not yet considered the issue,
Pascucci responded, but it would “be part of [the] wages and
benefits” discussion. J.A. 113. Pascucci’s reference to those
mandatory economic subjects prompted Martin to inquire
when the Union could expect to receive Troutbrook’s
counterproposals on wages, health benefits, and retirement. Id.
Pascucci reiterated that the company’s “plan” was to “[w]ork[]
on non-economics first.” Id. Martin repeated the Union’s

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preference for a complete counterproposal, noting that “it’s
difficult to evaluate a response when it doesn’t respond to every
term and condition.” Id.
Martin then turned to Troutbrook’s non-economic
counterproposals. He asked how the Union should interpret
Troutbrook’s silence on terms that were included in the
Union’s original proposal but not addressed in Troutbrook’s
counters. “We’re not agreeing to whatever else is in your
versions of these topics,” Pascucci responded. J.A. 114. When
asked how many sets of counterproposals Troutbrook intended
to make, Pascucci replied that the “intention is we work on
these topics, then we reach a tentative agreement and then
move on to the next set of proposals.” Id. Martin requested
that Troutbrook at the very least offer counterproposals on
wages, health benefits, and retirement, but Pascucci pivoted
back to the company’s non-economic counterproposals.
Despite the parties’ disagreement over bargaining procedure,
for the rest of the third session, the parties discussed the details
of Troutbrook’s non-economic counterproposals but did not
come to any concrete agreements.
After a seven-month hiatus due to the COVID-19
pandemic, on February 2, 2021, the parties met for the fourth
time. Martin noted that the Union was “still waiting on a
complete proposal including economics, health, [and] wages”
and that “[i]t’s hard to analyze a proposal without that.”
J.A. 123. Pascucci replied: “[T]he way I do it is first work
through non[-]economics, get through a half dozen and resolve
and then move on to next sets, and then eventually work
through economics.” Id. In response to Pascucci’s concerns
about the IWA, Martin stated that “we can bargain flexib[ly].
We should change the IWA for your operational needs.”
J.A. 124. Martin further offered to “bargain over [language]
and talk about it so [Troutbrook] do[es]n’t think it’s more

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convoluted than it is” or to “bargain over things to make them
less expensive.” Id. Pascucci emphasized that Troutbrook
already gave counters on multiple non-economic subjects. But
Martin underscored how difficult it would be to come to an
agreement through piecemeal bargaining. For example, he
explained that “it’s a lot easier to go to the crew on hours of
work if I also know how much they are getting paid.” J.A. 125.
Pascucci found that reasoning “absolutely not persuasive.” Id.
In an email after the session, Martin again requested that
Troutbrook “provide a complete proposal, including
economics and addressing all mandatory topics.” J.A. 127.
On March 11, 2021, the parties met for a fifth bargaining
session but made no progress. Martin restated that the Union
would like Troutbrook to sign the IWA but noted that if “you
want to put on your deal-making hat, I can come up with as
many deals and breaks to come up with [an agreement]” as
possible. J.A. 132. Pascucci stressed Troutbrook’s preference
for a simple, tailored contract. He reaffirmed his intention to
negotiate “over a subset of non-economic subjects, then move
to another subset, and ultimately move onto economics.”
J.A. 303.
In a March 30, 2021 letter, Martin claimed that
Troutbrook’s failure to discuss economic subjects or to provide
a counterproposal encompassing all mandatory subjects of
bargaining constituted a refusal to bargain in good faith.
Pascucci responded that same day, accusing the Union of
impeding negotiations by refusing to bargain over
Troutbrook’s six non-economic counterproposals until the
company provided a complete counterproposal.
On April 5, 2021, Martin gave Pascucci notice that the
Union would file an unfair-labor-practice charge against
Troutbrook with the Board later that day. J.A. 136.

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On April 21, 2021, the parties held a final bargaining
session, where they rehashed their positions on the mechanics
of bargaining and acknowledged that the Board would decide
whether Troutbrook’s conduct violated the Act.
B
On June 17, 2021, the Board’s Regional Director filed a
complaint against Troutbrook based on the Union’s charge.
The complaint alleged that the company violated the Act by
refusing to provide the Union with a comprehensive
counterproposal, restricting the non-economic subjects over
which it would bargain, and refusing to bargain over economic
subjects until all non-economic subjects were resolved. On
August 3, 2021, an Administrative Law Judge (“ALJ”) held a
remote hearing at which Pascucci and Martin testified about the
course of negotiations between the parties. On December 1,
2021, the ALJ found that the Regional Director abandoned the
claim that Troutbrook was legally obligated to provide a
complete counterproposal. Nevertheless, the ALJ concluded
that Troutbrook violated Sections 8(a)(5) and 8(a)(1) of the Act
because the company refused to bargain over economic
subjects until the parties resolved all non-economic subjects,
and it restricted the non-economic subjects over which it would
bargain.
Troutbrook appealed to the Board. On December 16,
2022, the Board issued a decision agreeing that the company’s
refusal to bargain over economic subjects violated the Act.
Troutbrook Co. d/b/a Brooklyn 181 Hosp., LLC & N.Y. Hotel
& Motel Trades Council (“Troutbrook II”), 372 N.L.R.B. No.
26, at 4 (Dec. 16, 2022). The Board found it “unnecessary” to
address, as potential additional support for the violation,
Troutbrook’s restrictions on the non-economic subjects it
would discuss. Id. at 4 n.7. Because it determined that

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Troutbrook’s conduct “effectively denied the Union its full
opportunity to bargain during the entirety of the” year for
which the Union had been certified to represent the employees,
the Board granted the Union’s request for a twelve-month
certification extension, to commence on the date the company
“begins to bargain in good faith.” Id. at 6.
Troutbrook timely petitioned for review, and the Board
filed a cross-application for enforcement of its decision.
II
A
“Our review of Board unfair labor practice determinations
is quite narrow.” Traction Wholesale Ctr. Co. v. NLRB, 216
F.3d 92, 99 (D.C. Cir. 2000). “We must uphold the judgment
of the Board unless, upon reviewing the record as a whole, we
conclude that the Board’s findings are not supported by
substantial evidence, or that the Board acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C.
Cir. 2011) (quoting Mohave Elec. Coop., Inc. v. NLRB,
206 F.3d 1183, 1188 (D.C. Cir. 2000)). Substantial evidence
requires enough “relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Micro Pac. Dev.
Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Thus, we reverse the Board “only when the record is so
compelling that no reasonable factfinder could fail to find to
the contrary.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929,
935 (D.C. Cir. 2011) (quoting United Steelworkers of Am. v.
NLRB, 938 F.2d 240, 244 (D.C. Cir. 1993)).

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B
Under Section 8(a)(5) of the National Labor Relations Act,
an employer commits an unfair labor practice if it “refuse[s] to
bargain collectively with the representatives of [its]
employees.” 29 U.S.C. § 158(a)(5). Such a refusal also
violates Section 8(a)(1) of the Act, which prohibits
“interfer[ing] with, restrain[ing], or coerc[ing] employees in
the exercise of” their rights under the Act, id. § 158(a)(1),
including the right to “bargain collectively through
representatives of their own choosing,” id. § 157. Per the Act,
to “bargain collectively” includes “confer[ring] in good faith
with respect to wages, hours, and other terms and conditions of
employment.” 29 U.S.C. § 158(d).
Accordingly, an employer’s refusal to discuss any
mandatory bargaining subject—a subset of which are referred
to as “economic subjects”—may constitute an unfair labor
practice. See NLRB v. Katz, 369 U.S. 736, 742–43 (1962).
Applying that principle, the Board has repeatedly held that an
employer violates Sections 8(a)(5) and 8(a)(1) when its refusal
to bargain over economic subjects until all non-economic
subjects are resolved “unreasonably fragment[s] the
negotiations and drastically reduce[s] the parties’ bargaining
flexibility.” John Wanamaker Phila., 279 N.L.R.B. 1034,
1034–35 (1986); see also S. Shore Hosp., 245 N.L.R.B. 848,
857–60 (1979), enforced, 630 F.2d 40 (1st Cir. 1980); Patent
Trader, Inc., 167 N.L.R.B. 842, 853 (1967), enforced in
relevant part, 415 F.2d 190 (2d Cir. 1969). The Board has
supported those holdings by explaining that “[t]he very nature
of collective bargaining presumes that while movement may be
slow on some issues, a full discussion of other issues . . . may
result in agreement on the stalled issues.” Yama Woodcraft,
Inc., d/b/a Cal-Pac. Furniture Mfg. Co., 228 N.L.R.B. 1337,
1341 (1977), enforcement denied on other grounds, 580 F.2d

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942 (9th Cir. 1978). Refusing to discuss mandatory subjects,
by contrast, tends to “narrow[] the range of possible
compromises.” Patent Trader, Inc., 167 N.L.R.B. at 853.
In this appeal, Troutbrook does not contest those legal
principles. Instead, it argues that, even accepting those
principles, the Board’s unfair-labor-practice finding is
unsupported by the evidence.
C
Substantial evidence supports the Board’s finding that
Troutbrook refused to bargain over mandatory subjects and
violated the Act.
As the Board explained, the record shows that the
company steadfastly refused to bargain on economic subjects
until non-economic subjects were resolved. At the start of
negotiations, after rejecting versions of a proposed ground rule
tracking Troutbrook’s “non-economics first” approach, the
Union asked whether the company was “refusing to have
meaningful discussion on economics until all non-economic
subjects are addressed.” Troutbrook II, 372 N.L.R.B. No. 26,
at 2. Troutbrook did not deny the suggestion. Instead, it
declared that “[i]n responding to the Union’s proposals, [it] will
focus on non-economic subjects first.” Id.
That pattern continued throughout negotiations. During
the third bargaining session, the Union asked when it could
expect to receive counterproposals on wages, health benefits,
and retirement—three topics Troutbrook does not deny are
mandatory subjects of bargaining. Troutbrook responded:
“[W]orking on non-economics first, that’s our plan.” Id. When
pressed, the company revealed that it had not even discussed
any of those three subjects internally. At the fourth bargaining
session, the Union restated its request for counterproposals on

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“economics, health, [and] wages,” noting the difficulty of
bargaining effectively without them. J.A. 123. In response,
Troutbrook reiterated its intent to “first work through
non [-]economics . . . and then eventually work through
economics.” Troutbrook II, 372 N.L.R.B. No. 26, at 4. When
the Union explained that coming to an agreement on hours of
work—one of the company’s six non-economic
counterproposals—would be easier if it knew how much
workers were getting paid, Troutbrook dismissed the Union’s
position as “nonsense.” J.A. 125. During the fifth bargaining
session, Troutbrook once again declared that the parties should
“negotiate over a subset of non-economic subjects, then move
onto another subset, and ultimately move onto economics”
after reaching agreement on non-economic subjects first.
J.A. 303; see generally Troutbrook II, 372 N.L.R.B. No. 26, at
2–4.
Consistent with Troutbrook’s firm stance on bifurcating
negotiations, the Board found that over the course of the
parties’ several bargaining sessions, the company never
provided the Union with a single counterproposal on economic
subjects. Troutbrook II, 372 N.L.R.B. No. 26, at 4. Pascucci
confirmed as much in his testimony before the ALJ.
See J.A. 55 (“Q. [Troutbrook] never provided any proposals on
economics, did they? A. We did not.”).
The Board also reasonably found that Troutbrook’s
persistent refusal to discuss economic subjects “unreasonably
fragmented the negotiations and drastically reduced the parties’
bargaining flexibility.” Troutbrook II, 372 N.L.R.B. No. 26, at
4 (quoting John Wanamaker Phila., 279 N.L.R.B. at 1034–35).
The Board observed that Troutbrook’s refusal to discuss
economic subjects led the parties to “expend[] significant
bargaining time discussing how negotiations would be
conducted instead of negotiating substantive terms.” Id.

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(emphasis added). The record bears out this effect. See J.A.
96 (disputing the priority of non-economic subjects during the
second session); J.A. 101– 09 (email exchanges between June 4
and June 18, 2020 rehashing the dispute); J.A. 113–14
(debating the relative merits of partial- versus complete-
proposal approaches to bargaining during the third session);
J.A. 123–24 (same during fourth session); J.A. 132 (same
during fifth session); J.A. 142 (same during sixth session). The
“foreseeable result,” the Board noted, was that “after six
bargaining sessions over the course of 11 months, [the parties]
failed to reach agreement on a single provision.”
Troutbrook II, 372 N.L.R.B. No. 26, at 4.
For these reasons, we disagree with the dissent’s
characterization of the Board’s decision as resting on a “per se
rule” that any “initial” refusal to bargain over economic
subjects violates the Act. See Dissenting Op. 1. Instead, as the
Board summarized, throughout the entire course of bargaining
Troutbrook “never provided any counterproposals on
economic subjects” and instead “insisted on discussing non-
economic subjects first and continued to do so well after it
became apparent that its approach was obstructing the parties’
ability to make progress towards reaching an agreement.”
Troutbrook II, 372 N.L.R.B. No. 26, at 4.
D
Troutbrook contests the Board’s decision on several
grounds. The company asserts that the Board misunderstood
the intent behind its bargaining strategy, disregarded the effects
of the Union’s conduct, failed to consider the impact of the
COVID-19 pandemic, deviated from Board precedent, and
improperly sided with the Union’s substantive bargaining
position. None of these arguments has merit.

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1
Troutbrook does not directly engage with the substantial—
indeed, overwhelming—evidence that it refused to discuss
economic subjects throughout the course of negotiations. The
company instead seizes on Martin’s testimony before the ALJ
that Pascucci never explicitly stated that he would refuse to
discuss economic subjects until all non-economic subjects
were resolved. Petitioner’s Brief 35. But as we have
explained, the Board reasonably found, based on the full
record, that the company improperly insisted on “adhering to
its non-economics-first approach.” Troutbrook II, 372
N.L.R.B. No. 26, at 4.
Troutbrook’s primary argument is that its bargaining
strategy did not violate the Act because it was part of “a sincere
effort to reach an agreement on [the company’s] terms.”
Petitioner’s Brief 28. That claim, even if true, is irrelevant
under longstanding Supreme Court precedent. As the Board
noted, Troutbrook II, 372 N.L.R.B. No. 26, at 5, the Supreme
Court explained in Katz that “[a] refusal to negotiate in fact as
to any subject which is within § 8(d), and about which the
union seeks to negotiate, violates § 8(a)(5) though the
employer has every desire to reach agreement with the union
upon an over-all collective agreement and earnestly and in all
good faith bargains to that end.” 369 U.S. at 743. The Board’s
precedent reflects this same principle. See John Wanamaker
Phila., 279 N.L.R.B. at 1035 (rejecting the view that an
employer’s refusal to make an economic proposal may be
excused if the purpose was to obtain bargaining leverage);
Long Island Jeep, Inc., 231 N.L.R.B. 1361, 1367 (1977) (“The
law is clear that an employer’s willingness to enter into an
agreement on its own terms . . . does not preclude a
determination that [the] employer has violated its statutory duty

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to bargain in good faith where such a finding is reasonably
supported by other circumstances.”).
2
Troutbrook also claims that the Board failed to consider
the Union’s conduct as part of the totality of circumstances
surrounding bargaining. In particular, the company argues that
the Board’s analysis did not account for the Union’s professed
intent to sign Troutbrook to the IWA as well as its demand for
a complete set of counterproposals before discussing specific
topics. The dissent endorses this argument. Dissenting Op.
6– 7.
We disagree. To start, neither Troutbrook nor the dissent
identifies any Board or judicial decision in which one party’s
conduct was found to have excused the other’s refusal to
bargain over mandatory subjects. As the Board put it, no
unfair-labor-practice charge was brought against the Union—
“the lawfulness of the Union’s bargaining actions is” therefore
“not at issue here.” Troutbrook II, 372 N.L.R.B. No. 26, at 5.
In any event, the Board considered the Union’s conduct
and reasonably concluded that the Union’s approach to
negotiations did not “somehow excuse[]” Troutbrook’s
“persistent refusal to bargain over mandatory subjects.” Id.
The Board reasonably found that, unlike Troutbrook, the Union
attempted to bargain over all mandatory subjects. As the Board
noted, “the Union did not present the IWA on a take-it-or-
leave-it basis,” and it “repeatedly emphasized its flexibility
with respect to both economics and contract wording.” Id.
True enough, at the second bargaining session, Martin initially
agreed with Pascucci’s statement that the IWA is a “one size
fits all” agreement. J.A. 97. But immediately after that
exchange, he told Pascucci that “[i]f you raise issues that are
legitimate, we’ll be flexible on them.” J.A. 98; see Troutbrook

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II, 372 N.L.R.B. No. 26, at 19. At the fourth session, the Union
reiterated that “we can bargain flexib[ly]” and that “[w]e
should change the IWA for [Troutbrook’s] operational needs.”
Troutbrook II, 372 N.L.R.B. No. 26, at 25. After Troutbrook
expressed concerns that the IWA contained “convoluted
provisions that are restrictive and expensive,” the Union
responded: “Let’s bargain over it and talk about it so you don’t
think it’s more convoluted than it is or we can bargain over
things to make them less expensive.” J.A. 124; see Troutbrook
II, 372 N.L.R.B. No. 26, at 25. At the fifth session, the Union
took the same position, telling Troutbrook that “[i]f at any time
you want to put on your deal-making hat, [we] can come up
with as many deals and breaks to come up with [an
agreement].” Troutbrook II, 372 N.L.R.B. No. 26, at 25.
Troutbrook counters that the Union conditioned any
flexibility on the company first agreeing to the IWA in
principle. That argument hinges on a single statement in the
Board’s brief characterizing the Union’s comment during the
fifth session. In the Board’s paraphrasing, the Union explained
that “if [Troutbrook] expressed a willingness to agree to the
IWA, [it] could ‘come up with as many deals and breaks’ as
possible to arrive at an overall agreement.” Respondent’s Brief
15 (quoting J.A. 132). Troutbrook seizes on the conditional
“if” clause, insisting that it proves the Union’s unwillingness
to negotiate without a commitment from the company to sign
onto the IWA.
Troutbrook is incorrect. Offering to make deals and
provide breaks in exchange for agreeing to the IWA in
principle does not necessarily mean that, in the absence of such
an agreement, the Union would be inflexible. In fact, the
record demonstrates the Union’s broader willingness to
negotiate an agreement specific to the company’s needs.
Martin communicated to Troutbrook after the fifth session that

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“the Union remains flexible on nearly every issue, and it is our
hope to reach a contract that suits the particularized operation
of the Hotel.” J.A. 135. Indeed, the Union repeatedly
expressed openness to considering proposals that did not draw
on the IWA at all if the company were to provide them. And
when Troutbrook did provide a few such proposals, the Union
negotiated over them.
Relatedly, the record supports the Board’s finding that
although the Union “consistently sought a full counterproposal
from” Troutbrook, it “continued to bargain without one.”
Troutbrook II, 372 N.L.R.B. No. 26, at 5. At the third session,
for instance, the Union narrowed its focus and “demonstrated
flexibility by requesting proposals specifically relating to
wages, health benefits, and retirement benefits.” Id.; see also
J.A. 115 (asking for counters on the “holy trinity” of economic
subjects). And when Troutbrook refused to engage on those
mandatory subjects, the Union still “bargain[ed] over the
limited noneconomic proposals the [company] unilaterally
chose to present.” Troutbrook II, 372 N.L.R.B. No. 26, at 5.
The notes from the rest of the third session reflect substantive
discussions on Troutbrook’s counterproposals addressing non-
discrimination, the new-employee probationary period, and
hours of work. See J.A. 115–18.
If anything, contrasting the parties’ bargaining conduct
only buttresses the Board’s holding. The Union and
Troutbrook both entered negotiations with strong views on
what an agreement should look like and how best to get there.
But whereas the Union narrowed its demand for a complete
counterproposal and maintained flexibility on its desire to sign
Troutbrook onto the IWA in full, Troutbrook never budged on
its categorical refusal to discuss mandatory economic subjects
until non-economic subjects were resolved. And whereas the
Union engaged Troutbrook on the company’s non-economic

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18
counterproposals, Troutbrook admitted that it never offered the
Union a single counterproposal on economic subjects.
3
Troutbrook next contends that the COVID-19 pandemic
created an “uncertain economic position” that warranted the
company’s unwillingness to bargain over economic subjects.
Reply Brief 4–5; see Petitioner’s Brief 22. But even assuming
the pandemic could have justified Troutbrook’s complete
refusal to engage on mandatory economic subjects, the Board
reasonably found that the pandemic was not the reason for the
company’s position. As the Board noted, Troutbrook adopted
its bargaining strategy because “it viewed such [an] approach
as the most efficient way to negotiate a first contract, not
because of economic uncertainty resulting from the pandemic.”
Troutbrook II, 372 N.L.R.B. No. 26, at 6. Pascucci’s
comments fully support that conclusion. At the parties’
February 2, 2021 bargaining session, he stated: “[T]he way I
[negotiate a first contract] is first work through noneconomics,
get through a half dozen and resolve and then move on to next
sets, and then eventually work through economics.” Id. at 6
n.11. Similarly, in a March 30, 2021 email, he explained: “[I]n
my experience having negotiated over 200 collective
bargaining agreements, in the overwhelming majority of cases
both parties mutually agree to focus on non-economic subjects
first, since this is seen as the most efficient way to get to an
overall contract, and this has been especially true when
negotiating initial contracts in my experience.” Id. The Board
reasonably found that these statements show Troutbrook’s
bargaining strategy stemmed from Pascucci’s standard
approach to labor negotiations—one he apparently would have
insisted on regardless of the pandemic.

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19
4
Contrary to Troutbrook’s assertions, the Board’s decision
does not deviate from its precedent. The company analogizes
this case to Long Island Jeep, where the Board found no unfair
labor practice even though the parties did not bargain over
economic issues until their fifth meeting. 231 N.L.R.B. at
1365. But that comparison ignores critical distinctions. The
employer there provided the union with a complete economic
counterproposal approximately a month after bargaining
commenced and just two weeks after the union requested one.
Id. And although the employer deferred discussion of
economic subjects during that month, the union initially
appeared to consent to that approach. See id. at 1364. In the
interim, moreover, the parties reached agreement on several
non-economic subjects such that one could hardly describe the
bargaining process as unreasonably fragmented. Id.; id. at
1366 (noting the employer “made substantial concessions to
union demands”). None of that is true here.
Relying on District Hospital Partners, L.P., 370 N.L.R.B.
No. 118 (Apr. 30, 2021), Troutbrook submits that the Board
neglected to consider the Union’s failure to test its willingness
to negotiate. But the Board vacated that decision last year
before reversing itself and finding that the employer engaged
in bad-faith bargaining. See Dist. Hosp. Partners, L.P., 372
N.L.R.B. No. 109 (July 25, 2023); Dist. Hosp. Partners, L.P.,
373 N.L.R.B. No. 55 (May 8, 2024). And in any event the facts
there again look nothing like this case. In its original decision,
the Board found that the union declined to test the employer’s
willingness to bargain because it “summarily rejected” the
employer’s initial proposal rather than “substantively
engaging” with it. 370 N.L.R.B. No. 118, at 8– 9. It was
therefore unclear whether the employer was inflexible on its
bargaining position. Here, by contrast, the record reflects that

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20
after Pascucci initially declared that Troutbrook would not
engage on economic subjects, the Union repeatedly, over the
course of many months, sought to persuade the company to
engage on those mandatory subjects of bargaining. Yet
Troutbrook refused.
The additional authorities the dissent cites also do not
show that the Board acted arbitrarily in finding a violation on
the specific facts of this case. For reasons similar to District
Hospital Partners, Captain’s Table, 289 N.L.R.B. 22 (1989),
is inapposite. There, the union filed charges when negotiations
“had just begun” and the employer had in fact recently
provided a “counterproposal regarding wages” as “a starting
point for future negotiations.” Id. at 24. And in Wyman
Gordon Pa., LLC, 368 N.L.R.B. No. 150 (Dec. 16, 2019), the
Board found, on a different record than ours, that the
employer’s conduct had not “frustrated the parties’ ability to
reach agreement.” Id. at 5. For all the reasons we have
mentioned, the Board reasonably reached the opposite
conclusion here. See Troutbrook II, 372 N.L.R.B. No. 26, at 6
n.8 (distinguishing Wyman Gordon on this basis).
5
Finally, Troutbrook claims that the Board’s decision
“effectively sided with the Union’s bargaining strategy, and
substantive bargaining position, over Troutbrook’s, in
violation of Congressional labor policy prohibiting the Board
from directly or indirectly compelling concessions or otherwise
sitting in judgment on the substantive terms of collective-
bargaining agreements.” Petitioner’s Brief 39. Not so.
Nothing in the Board’s order obliges the company to concede
on any subject or requires the inclusion of any substantive
provision in the parties’ agreement. The order simply directs

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21
Troutbrook to bargain in good faith on mandatory economic
subjects—a remedy consistent with the Act.
III
For the foregoing reasons, we deny Troutbrook’s petition
for review and grant the Board’s cross-application for
enforcement.
So ordered.

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RAO, Circuit Judge, dissenting: During a global pandemic,
Troutbrook Company, LLC, began negotiating a collective
bargaining agreement with the New York Hotel and Motel
Trades Council, AFL-CIO (“Union”). After only several brief
bargaining sessions, interrupted by an agreed upon pandemic
hiatus, the Union abruptly abandoned negotiations and accused
Troutbrook of failing to bargain in good faith. Ignoring the
context of the negotiations, the National Labor Relations Board
found that Troutbrook committed an unfair labor practice.
The majority enforces the Board’s order, relying primarily
on deference to the Board’s factual findings. But the Board’s
decision rests on a fundamental misstatement of longstanding
legal standards. By failing to consider the totality of the
circumstances, the Board creates what is, in effect, a per se rule
that an initial refusal to discuss mandatory bargaining subjects
will constitute an unfair labor practice. This new rule disrupts
the delicate balance between unions and employers protected
by Congress and allows the Board to intervene prematurely
into the ordinary hurly burly of labor negotiations. Because I
would grant Troutbrook’s petition for review and set aside the
Board’s order, I respectfully dissent.
I.
A.
At issue in this case is whether Troutbrook’s negotiation
strategy constituted an unlawful failure to bargain. To answer
this question, the Board was required to consider the totality of
the circumstances, a test drawn from the text and structure of
the National Labor Relations Act (“NLRA”) and fleshed out in
Board decisions and our precedents.
The NLRA was enacted to “promote industrial peace”
through a regulatory scheme that fosters the creation of
“voluntary agreements” between unions and employers. NLRB

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2
v. Am. Nat. Ins. Co., 343 U.S. 395, 401–02 (1952); see also
Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended
at 29 U.S.C. §§ 151–69). The NLRA requires “confer[ring] in
good faith” over the mandatory subjects of collective
bargaining, including “wages, hours, and other terms and
conditions of employment.” 29 U.S.C. § 158(d); see also id.
§ 158(a)(1), (a)(5), (b)(3). Both parties are responsible for
“satisfying the duty to bargain” that is essential to the statutory
scheme. Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227,
232 (D.C. Cir. 1996); see also Am. Nat. Ins. Co., 343 U.S. at
402.
Yet in Section 8(d) of the NLRA, Congress also
recognized the role of private contracting in the collective
bargaining process by explicitly providing that good faith
bargaining “does not compel either party to agree to a proposal
or require the making of a concession.” 29 U.S.C. § 158(d).
Although parties must “confer in good faith” about the subjects
of mandatory bargaining, “neither party is legally obligated to
yield” in its negotiations. Fibreboard Paper Prods. Corp. v.
NLRB, 379 U.S. 203, 210 (1964) (cleaned up). Section 8(d)
“prevent[s] the Board from controlling the settling of the terms
of collective bargaining agreements,” allowing parties “wide
latitude in their negotiations, unrestricted by any governmental
power to regulate the substantive solution of their differences.”
NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 487–88 (1960).
A collective bargaining agreement is of course shaped by
the requirements of the NLRA, but the Board’s jurisdiction
does not extend to dictating the terms of such agreements.
Congress left “employers and unions free to set the terms and
conditions of employment by mutual consent rather than
administrative fiat.” Pac. Mar. Ass’n v. NLRB, 967 F.3d 878,
893 (D.C. Cir. 2020) (Rao, J., concurring in part and dissenting
in part).

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3
When determining whether an employer or a union failed
to negotiate in good faith, the Board and this court have looked
to the totality of the circumstances. “[A] statutory standard
such as ‘good faith’ can have meaning only in its application to
the particular facts of a particular case.” Am. Nat. Ins. Co., 343
U.S. at 410. The Board must review the “previous relations of
the parties, antecedent events explaining behavior at the
bargaining table, and the course of negotiations [that]
constitute the raw facts for reaching such a determination.”
South Shore Hosp., 245 NLRB 848, 858 (1979) (quoting Local
833, UAW-AFL-CIO v. NLRB, 300 F.2d 699, 706 (D.C. Cir.
1962)), enf’d 630 F.2d 40 (1st Cir. 1980). Because “an
employer’s bargaining position is not itself bad faith but only
evidence of bad faith,” the Board must consider the totality of
the circumstances and the parties’ entire course of conduct to
determine if there was a failure to bargain in good faith.
Cincinnati Newspaper Guild, Local 9 v. NLRB, 938 F.2d 284,
289 (D.C. Cir. 1991). This approach prevents the Board from
improperly endorsing the substance of a particular bargaining
position in violation of Section 8(d). See Pub. Serv. Co. of
Okla., 334 NLRB 487, 487 (2001), enf’d 318 F.3d 1173 (10th
Cir. 2003).
B.
In contrast to these longstanding principles, the Board
concludes that Troutbrook’s initial deferral of economic
subjects constitutes a per se violation of the Act.1 Troutbrook
Co., LLC, 372 NLRB No. 26, at *1, 3–4 (Dec. 16, 2022). This
1 The majority properly disclaims the creation of a per se rule, which
at least minimizes the consequences of the decision and requires the
Board to continue to consider the totality of the circumstances in
determining whether parties have bargained in good faith. Majority
Op. 13.

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4
approach cannot be reconciled with Board and circuit
precedent applying the good faith bargaining standard.
As even the cases cited by the majority demonstrate,
finding a failure to bargain in good faith requires the Board to
examine the entire context of negotiations between the parties.
See Majority Op. 10–11. In John Wanamaker Philadelphia, the
Board found a failure to negotiate in good faith only after the
employer refused to provide economic terms for seven months,
insisted on resolving all non-economic issues first, refused to
discuss economic subjects until the Union agreed to certain
strike and arbitration principles, and withheld wage and benefit
increases during negotiations. 279 NLRB 1034, 1034–35
(1986). The totality of the employer’s behavior, which included
several unfair labor practices, demonstrated bad faith by
“unreasonably fragment[ing] the negotiations.” Id. at 1035.
Similarly in South Shore Hospital, the Board found a violation
after the employer refused to submit wage and benefit
proposals over eighteen bargaining sessions in eight months
and demanded the union first agree to benefit reductions. 245
NLRB at 858. The employer’s “rigid[]” bargaining approach
and conduct showed it “was not dealing with the [u]nion in a
serious attempt to resolve their differences and reach a
common ground.” Id. (cleaned up).
The Board and the majority also attempt to ground their
finding of a violation in NLRB v. Katz, 369 U.S. 736 (1962).
See Troutbrook, 372 NLRB No. 26, at *3; Majority Op. 10, 14.
But that decision is similarly inapposite. Katz upheld a per se
violation when an employer unilaterally imposed terms of
mandatory bargaining on a union. 369 U.S. at 745–47. There is
no such unilateral imposition here, and Katz “cannot
reasonably be read to imply[] that parties must negotiate every
term or condition of employment immediately or
simultaneously or that it is a per se violation of the Act

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5
whenever a party fails to do so.” Troutbrook, 372 NLRB No.
26, at *14 n.13 (Ring, dissenting).
The NLRA sets forth mandatory subjects for collective
bargaining, but does not “regulate the substantive solution” of
disagreements between employers and unions. Ins. Agents’
Int’l Union, 361 U.S. at 488. Persistent and unreasonable
failure to consider economic subjects may be evidence of bad
faith, but the Board must consider all of the circumstances
around collective bargaining before making such a finding.
II.
The majority emphasizes the narrowness of substantial
evidence review. Yet judicial review is not a “rubber-stamp,”
and courts “bear the responsibility to examine carefully both
the Board’s findings and its reasoning.” Erie Brush & Mfg.
Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012) (cleaned up).
We cannot “abdicate the conventional judicial
function … [and] responsibility for assuring that the Board
keeps within reasonable grounds.” NCRNC, LLC v. NLRB, 94
F.4th 67, 72 (D.C. Cir. 2024) (cleaned up). “When reviewing a
Board decision, this court must “identify the standard at issue,
examine its application in prior adjudications, and then
determine whether the instant case is a faithful application of
existing law or instead a sub silentio revision.” Circus Circus
Casinos, Inc. v. NLRB, 961 F.3d 469, 476 (D.C. Cir. 2020).
And if the Board “entirely fails to consider an important aspect
of the problem or offers an explanation … that runs counter to
the evidence before the agency,” the order must be set aside for
“failing to engage in reasoned decisionmaking.” Fred Meyer
Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)
(cleaned up).
By starting with the wrong legal standard, the Board
considered only whether Troutbrook refused to initially

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6
bargain over economic subjects. The Board’s blinkered
approach to the evidence failed to consider the bargaining
context or to “take into account whatever in the record fairly
detract[ed] from” its determination. Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951). Although the Board
claimed to consider the totality of the circumstances, it ignored
three key facts that undermine the finding of bad faith. Looking
at the full picture of the parties’ negotiations compels the
conclusion that the Board’s decision was unreasonable and not
supported by substantial evidence.
A.
First, the Board failed to consider Troutbrook’s actions
within the context of the Union’s negotiating position. The
Board found that the Union’s negotiation tactics were
immaterial and emphasized that Troutbrook did not bring an
unfair labor practice charge against the Union. See Majority
Op. 15 (ratifying Board’s finding). But Troutbrook should not
be penalized for declining to run to the Board in the middle of
negotiations. The Union’s actions here, although not formally
challenged, demonstrated at least some bargaining
recalcitrance by offering a “take it or leave it” contract. Cf.
Graphic Arts Int’l Union, Local 280, 235 NLRB 1084, 1096
(1978) (concluding a “take it or leave it” position by a union
was evidence of bad faith), enf’d 596 F.2d 904 (9th Cir. 1979);
see also Teamsters Local 418, 254 NLRB 953, 957 (1981)
(explaining that “[t]he insistence of a union on a contract of its
own composition, combined with an intransigent attitude
during negotiations, supports a finding of bad faith by the
Union”). Evaluating the totality of the circumstances includes
considering the conduct of both the employer and union, their
“approach and attitude toward negotiations[,] as well as [their]
specific treatment of items for negotiations.” Patent Trader,

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7
Inc., 167 NLRB 842, 852 (1967) (cleaned up), enf’d 415 F.2d
190 (2d Cir. 1969).
Moreover, the Board gave no weight to the fact that
Troutbrook and the Union were negotiating a first contract, and
each party had the right to “take an initial bargaining
position … and to bargain hard from that point.” NLRB v. CNN
America, Inc., 865 F.3d 740, 763 (D.C. Cir. 2017); cf. TruServ
Corp. v. NLRB, 254 F.3d 1105, 1116 (D.C. Cir. 2001)
(recognizing that “good-faith, hard bargaining” can lead to
impasse on mandatory subjects). First contracts are complex
and time consuming to negotiate because the parties are usually
starting from scratch, and the resulting agreement will define
the future relationship between the parties. The record here
demonstrates Troutbrook and the Union engaged in textbook
hard bargaining over a first contract. The Union proposed
adopting its standard Industry-Wide Agreement (“IWA”), a
157-page contract with 74 articles and 17 attachments.2
Troutbrook rejected the Union’s proposal and instead
suggested a standalone agreement tailored for a “small business
with a small workforce … currently under severe financial
strain” due to the COVID pandemic. Troutbrook also tried to
focus initially on non-economic issues to facilitate
negotiations.
In the handful of short bargaining sessions, the Union
never backed away from using the IWA as a model and
2 The only part of the IWA adapted for Troutbrook, a 13-page
memorandum of understanding, included terms that further limited
the company’s future bargaining position by providing it would be
bound by any successor IWA and that it would be included in the
IWA’s multiemployer bargaining unit. Cf. Charles D. Bonanno
Linen Serv., Inc. v. NLRB, 454 U.S. 404, 405–06, 412 (1982)
(explaining the substantial legal obligations that follow from being
part of a multiemployer bargaining unit).

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8
demanded a complete counterproposal from Troutbrook in
response to its IWA.3 Troutbrook similarly never backed off its
demand “to negotiate its own contract.” Troutbrook, 372
NLRB No. 26, at *21 (findings of the ALJ). Moreover, the
parties made progress on non-economic issues. In the final
bargaining session before the pandemic-induced hiatus, the
parties “address[ed] non-discrimination, the new-employee
probationary period, and hours of work.” Majority Op. 17. It
was only after the hiatus that the Union stopped discussion of
these issues, reiterated its demand for a complete
counterproposal to the IWA, and then abandoned negotiations
after only two short meetings. See Troutbrook, 372 NLRB No.
26, at *15 (Ring, dissenting).
Ultimately, “[t]he test of good faith in bargaining that the
Act requires of an employer is not a rigid but a fluctuating one,
and is dependent in part upon how a reasonable man might be
expected to react to the bargaining attitude displayed by those
across the table.” Times Publishing Co., 72 NLRB 676, 682–
83 (1947). Looking at Troutbrook’s negotiating position in
context shows lawful hard bargaining on both sides. The record
therefore does not support the Board’s finding of an unfair
labor practice.
B.
Second, the Board unreasonably ignored the serious
effects of the COVID pandemic on Troutbrook’s business and
ability to offer economic terms.
3 The majority credits the Board’s finding that the Union was
“flexibl[e] on its desire to sign Troutbrook onto the IWA in full.”
Majority Op. 17. But the majority points to no evidence in the record
that the Union offered to negotiate a standalone agreement.

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9
The Board’s approach flies in the face of this court’s
precedent, which recognizes that evaluating a company’s good
faith bargaining requires consideration of the “economic
exigencies” facing the company. TruServ Corp., 254 F.3d at
1115. Those exigencies were patently obvious—a hotel in New
York City during the COVID pandemic faced unprecedented
challenges. At almost every session, Troutbrook explained its
uncertain economic position and why it sought to prioritize
non-economic issues until the business had stabilized.
Moreover, a COVID resurgence caused a mutually agreed
negotiation hiatus, which lasted seven months. When
negotiations resumed, Troutbrook informed the Union that its
workforce had decreased from thirty to approximately eight
employees, and it could propose only a “lean” economic offer.
Troutbrook also promised to send a counterproposal in due
course. In the fifth and final session before the Union filed its
complaint, Troutbrook reiterated that its financial state was so
unstable that it was not “making full payments on [its] loan”
and could not provide economic proposals when it did not
know what its lender would do.
The Board neither questioned Troutbrook’s
representations of its dire financial situation nor cited a case in
which a company in financial distress was required to provide
economic terms for negotiation. Substantial evidence does not
support the Board’s fact finding when it fails to “take account
of anything in the record that fairly detracts from the weight of
the evidence supporting the Board’s conclusion.” Reno Hilton
Resorts v. NLRB, 196 F.3d 1275, 1282 (D.C. Cir. 1999)
(cleaned up). Here, the Board unreasonably glossed over
important facts regarding the pandemic’s effect on
Troutbrook’s business and its ability to negotiate economic
terms.

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10
C.
Finally, the Board unreasonably failed to consider whether
the Union tested Troutbrook’s willingness to bargain.
Distinguishing between a permissible negotiation tactic
and unlawful bad faith bargaining depends on the course of
negotiations. Consequently, a union must test an employer’s
willingness to bargain before the Board will conclude that the
employer failed to bargain in good faith. Audio Visual Servs.
Grp., 367 NLRB No. 103, at *6 (Mar. 12, 2019), aff’d sub nom.
Int’l All. of Theatrical Stage Emps. v. NLRB, 957 F.3d 1006
(9th Cir. 2020); see also Captain’s Table, 289 NLRB 22, 24
(1988) (requiring a party to participate in the “give and take of
negotiations” before alleging a failure to bargain in good faith).
Such testing reveals whether a party has a “predetermined
resolve not to budge from an initial position.” NLRB v. Truitt
Mfg., 351 U.S. 149, 154 (1956). When negotiations are brief,
the Board generally will not find a party’s willingness to
bargain has been adequately tested unless there is some
evidence of other “unlawful conduct away from the bargaining
table that might have affected the negotiations.” Captain’s
Table, 289 NLRB at 24.
Reviewing the record, there is little evidence that the
Union adequately tested Troutbrook’s willingness to bargain.
As discussed above, the parties stuck to their initial demands
over several bargaining sessions. The Union then filed an
unfair labor practice charge after remotely negotiating with
Troutbrook for 147 minutes over five sessions in three months.4
The Union did not allege that Troutbrook engaged in other
4 The parties’ sixth bargaining session was short and largely non-
substantive, and it was held after the Union filed its complaint with
the Board.

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11
unfair labor practices, attempted to undermine the Union, or
delayed bargaining beyond the certification year. Instead, the
Union hinged its complaint on the time elapsed from the
initiation of negotiations without receiving an economic
proposal and used this as evidence of Troutbrook’s bad faith.
Such scanty negotiations ordinarily will not suffice for
testing a party’s willingness to bargain.5 The Board was
required to consider whether the Union had adequately tested
Troutbrook’s willingness to bargain. Finding bad faith
bargaining without such a consideration runs afoul of the
NLRA’s protections for private negotiations and incentivizes a
race to the Board when parties are engaged in ordinary hard
bargaining.6
By disregarding key facts about the collective bargaining
context, the Board’s decision was arbitrary and capricious and
unsupported by substantial evidence.
5 For instance, the Board has held that there was no evidence of a
failure to bargain in good faith when an employer’s “insistence on
resolving noneconomic subjects of bargaining before discussing
economic subjects” lasted for a little over a month. Wyman Gordon
Pa., LLC, 368 NLRB No. 150, at *3–5 (Dec. 16, 2019), enf’d 836 F.
App’x 1 (D.C. Cir. 2020). Similarly, in Captain’s Table, the Board
determined the willingness of the employer to bargain had not been
adequately tested after four months of negotiations. 289 NLRB at
22–24. And in Kalthia Group Hotels, Inc., the Board found bad faith
after a three-month delay in presenting initial wage and healthcare
terms and an eleven-month delay in proposing pension terms, but
only in conjunction with the employer using other unlawful and
dilatory tactics to erode the union’s support. 366 NLRB No. 118, at
*18–19 (June 25, 2018).
6 The Board’s rush to decision can harm unions as well as employers.
As the Board has observed, “[t]he greater the rewards of

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12
* * *
Employers and unions must negotiate in good faith, but
that compels neither agreement nor concessions. 29 U.S.C.
§ 158(d). The Board’s hair trigger finding of bad faith
bargaining rests on an error of law and fails to consider the
totality of the circumstances surrounding Troutbrook’s
negotiations. I respectfully dissent.
recalcitrance … the stronger the probability of indulgence-unto-
excess by one or the other.” Graphic Arts Int’l Union, 235 NLRB at
1095.

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