NLRB v. Neises Construction Corporatio

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1774

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

NEISES CONSTRUCTION CORPORATION,

Respondent.

____________________

Petition of the National Labor Relations Board for an Adjudication in

Civil Contempt, Assessment of Noncompliance Fines and Other

Requested Civil Relief.

No. 13-CA-210180.

____________________

DECIDED MARCH 10, 2023

____________________

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Neises Construction Corporation re-

fuses to bargain in good faith with the Indiana/Ken-

tucky/Ohio Regional Council of Carpenters (“the Union”),

which represents its employees. We have ordered Neises to

2 No. 18-1774

1

bargain with the Union three times. Despite these orders,

Neises’s contumacious conduct persists. After reaching nu-

merous tentative agreements on the articles to be included in

a collective bargaining agreement with the Union, Neises re-

tracted those tentative agreements without good cause. The

National Labor Relations Board then sought to hold Neises in

contempt for refusing to bargain with the Union in good faith.

We appointed a Special Master to resolve the parties’ factual

disputes. After more than a year of discovery, motions prac-

tice, and deliberation, the Special Master found, by clear and

convincing evidence, that Neises should be held in contempt.

The Special Master’s Report and Recommendation is sound,

and Neises’s objections are unpersuasive. We hold Neises in

2

contempt. As explained in detail below, we impose most of

the Board’s proposed sanctions, including a $192,400 fine.

I.

A.

This case began in 2018 when the Board sought, and ob-

tained, from this court enforcement of its order requiring

Neises to recognize and to bargain with the Union. In May

2019, the Board sought to hold Neises in contempt for failing

to bargain with the Union. We entered a consent order that

required Neises to bargain with the Union not less than once

1 We refer to appellate docket entries as “App. Dkt. ___.” We refer to the

Special Master’s Docket as “SM Dkt. __.”

2 On January 6, 2023, we issued an order that overruled Neises’s objections

to the Special Master’s Report and Recommendation and adjudicated

Neises in contempt. See App. Dkt. 65. In that order, we explained that we

would issue a full opinion after we considered and decided the matter of

an appropriate remedy. We now issue this opinion.

No. 18-1774 3

every thirty days. In February 2020, the Board again sought to

hold Neises in contempt for failing to bargain with the Union

as required; we again entered a consent order that required

Neises to bargain with the Union at least once every thirty

days.

In April 2021, the Board sought to hold Neises in contempt

for a third time. The Board alleged that while the previous

consent order was under submission, Neises and the Union

engaged in productive discussions and came to tentative

agreements on many aspects of a collective bargaining agree-

3

ment. But Neises effectively retracted those tentative agree-

ments when it hired a new attorney who refused to adhere to

them. Specifically, after the Board filed its February 2020 con-

tempt petition, Neises retained attorney Francis Jaskowiak to

defend it against the contempt petition and to represent it

during collective bargaining. While the contempt petition was

pending, the parties resumed bargaining with Attorney

Jaskowiak as Neises’s lead negotiator. The parties met five

times between March 2 and May 28, 2020. These meetings re-

sulted in tentative agreements on most of the articles to be in-

cluded in a final collective bargaining agreement.

Two agreements produced in discovery by Neises reflect

these tentative agreements. Most relevant is a document la-

beled “Exhibit QQ.” It reflects, as Mr. Jaskowiak confirmed,

the “current status of [the tentative agreements] after

3 The petition says that this bargaining happened “[i]mmediately follow-

ing entry of the 2020 consent order.” App. Dkt. 24 at 6. In fact, the bargain-

ing happened during several sessions before the 2020 consent order was

entered. The Board corrected this statement in its amended petition. SM

Dkt. 26 ¶ 16.

4 No. 18-1774

4

completion of [the] May 28, 2020 negotiations.” This docu-

ment includes (1) tentative agreements (written in normal

text), (2) Union proposals for open articles or sections (high-

lighted in green), and (3) company proposals for open articles

or sections (highlighted in yellow). An earlier version of the

tentative agreements, dated May 14, 2020, is highlighted in

various colors with initials next to some tentatively agreed-

upon provisions.

The tentative agreements also are reflected in a draft of the

collective bargaining agreement produced by the Board dur-

ing discovery. This document, created by the Union for a bar-

gaining session scheduled for June 26, 2020, contains the par-

ties’ tentative agreements (reflected in normal text) and the

Union’s proposals (highlighted in green). We refer to this doc-

ument as the Union version of the tentative agreements.

The Union version and Exhibit QQ have two relevant dif-

5

ferences. First, the Union version suggests that the parties

reached a tentative agreement on Article XV, “Duration,

Amendment and Termination”; Exhibit QQ does not. But the

Union repeatedly said this was a mistake and informed

Neises that it did not believe that Article XV was part of the

4 App. Dkt. 55 at 82; SM Dkt. 67-6 at 90–93.

5 We say “relevant differences” because Neises also complains that the

documents differ concerning the parties’ proposals on open articles and

sections. But this is a red herring. What matters is whether there are dif-

ferences in terms to which the parties had tentatively agreed, not differ-

ences over terms that had not yet produced any agreement.

No. 18-1774 5

6

tentative agreements. Second, the Union’s version includes a

7

sentence in Article II that does not appear in Exhibit QQ.

Negotiations broke down at the June 26 bargaining session

8

(held just days after we entered a consent order in June 2020).

Attorney Robert Hanlon replaced Mr. Jaskowiak as Neises’s

lead negotiator, and he informed the Union’s representatives

that he had significant problems with the parties’ tentative

agreements. He insisted on reading his proposed revisions

9

aloud. After some back and forth, the Union asked to resume

bargaining about two weeks later, on July 8, and asked

Mr. Hanlon to present his proposals in writing. The Union

also sent Mr. Hanlon a copy of the tentative agreements, its

10

proposals, and its standard contract language.

Two days before the scheduled follow-up meeting, the

Union again asked Mr. Hanlon to send his proposals in writ-

ing. He refused, saying he would only provide the proposals

at the meeting. The Union responded that it would not meet

without having a copy of Hanlon’s proposals and an

6 See, e.g., SM Dkt. 69-3 at 33 (noting the Union told Neises that “duration”

was an open consideration); SM Dkt. 67-6 at 742 (same); SM Dkt. 72-2 at

6 n.1 (stating that the Union informed Neises several times that Article XV

was an open article).

7 Compare App. Dkt. 52-4 at 5 (final sentence of Article II, Section 3), with

App. Dkt. 52-3 at 4–5 (no such sentence).

8 SM Dkt. 70-1 at 14–17; SM Dkt. 67-6 at 2–3.

9 SM Dkt. 67-6 at 3–5, 189.

10 SM Dkt. 70-1 at 18.

6 No. 18-1774

assurance that Neises would honor the parties’ tentative

11

agreements. When Mr. Hanlon again refused, the Union

canceled the meeting. Mr. Hanlon nevertheless showed up

and demanded the Union pay for expenses incurred in at-

tending the canceled meeting.

On August 4, the parties met, and, although Mr. Hanlon

again had refused to provide the proposals in advance, he

provided his proposals in writing at the meeting. That docu-

ment included all the tentative agreements found in Exhibit

12

QQ but proposed many changes. For instance, Mr. Hanlon

proposed charging the Union $50 per employee, per pay pe-

riod, to collect and remit Union dues, even though the parties

13

already had agreed that Neises would do so without charge.

The Union rejected the proposals as “regressive,” “outland-

14

ish,” and not made in good faith. Mr. Hanlon maintained

that his proposals were reasonable and asked to continue bar-

gaining; the Union refused to continue bargaining until

Mr. Hanlon committed to the tentative agreements and with-

15

drew his new proposals.

Over the next twelve months, Neises continued to propose

dates to bargain. The Union refused to bargain until Neises

11 SM Dkt. 65-4 at 8, 17.

12 SM Dkt. 67-5 at 26–58.

13 Compare App. Dkt. 52-3 at 4–5, with App. Dkt. 57 at 43.

14 SM Dkt. 70-1 at 26.

15 SM Dkt. 92 at 5.

No. 18-1774 7

committed to bargain in good faith and honor the tentative

16

agreements as they existed on June 26, 2020.

After the Board’s Office of General Counsel investigated

this matter, then-General Counsel Peter Robb directed his

17

staff to file the contempt petition. Before it was filed, how-

ever, President Biden, upon assuming office, discharged

Mr. Robb and appointed Peter Ohr as Acting General Coun-

sel. While Mr. Ohr was in office, the petition was filed on

April 12, 2021. We referred the petition to a Special Master.

Before the Special Master, Neises argued that Mr. Robb

was fired unlawfully and that filing the contempt petition

while Mr. Ohr was acting as general counsel constituted an

ultra vires act. In response, General Counsel Jennifer Abruzzo

18

and the full Board ratified the contempt petition.

After reviewing the evidence, the Special Master con-

cluded that the Board had proven by clear and convincing ev-

idence that Neises should be held in contempt. He rejected

Neises’s argument that filing the petition was an ultra vires

act because General Counsel Abruzzo had ratified the filing

and Neises had offered no evidence to overcome the pre-

19

sumption of regularity. The Special Master then found that

all four elements of civil contempt were met. Those elements

are: 1) an unambiguous command, 2) a violation of the

16 SM Dkt. 65-2 at 11; SM Dkt. 65-4 at 54.

17 SM Dkt. 67-6 at 766.

18 See SM Dkt. 15-1; SM Dkt. 22-1.

19 He also noted that the Board itself ratified the petition too. See SM Dkt.

22-1.

8 No. 18-1774

command, 3) a significant violation, and 4) a lack of reasona-

ble and diligent efforts to comply. See Prima Tek II, LLC v.

Klerk’s Plastic Indus., 525 F.3d 533, 542 (7th Cir. 2008). Specifi-

cally, he determined that our 2020 judgment and consent or-

der unambiguously command Neises to bargain in good

faith. He next determined that Neises violated that command

by, among other things, retracting without good cause nu-

merous tentative agreements that were to be included in a fi-

nal collective bargaining agreement. Last, he found that

Neises did not comply substantially with its obligation to bar-

gain in good faith or make reasonable, diligent efforts to do

so.

B.

The basic issue before us is whether Neises significantly

violated an unambiguous command to bargain in good faith

with the Union by retracting, without good cause, the aspects

of the collective bargaining agreement to which it tentatively

had agreed. The record clearly and convincingly establishes

that Neises disobeyed our order.

Neises offers three broad objections, but none are persua-

sive. First, it says that the Board did not have authority to file

the contempt petition and that the petition was not properly

ratified. Second, it asserts that the Report improperly decided

that the parties reached tentative agreements. Finally, Neises

argues that it did not violate an unambiguous command be-

cause this court’s February 2020 judgment and consent order

do not use the phrase “in good faith” and such a phrase is too

vague anyway.

We review de novo the Special Master’s legal conclusions

and all facts found without an evidentiary hearing. See Polish

No. 18-1774 9

Nat’l All. v. NLRB, 159 F.2d 38, 39 (7th Cir. 1946) (applying

Federal Rule of Civil Procedure 53 by analogy); cf. Colorado v.

New Mexico, 467 U.S. 310, 317 (1984) (noting that the Supreme

Court independently reviews a Special Master’s legal and fac-

tual conclusions). Here, the parties filed cross-motions for

summary judgment based on the papers before the Special

Master but did not seek an evidentiary hearing. We therefore

have reviewed independently the record to determine

whether, based on the undisputed evidence, there is clear and

convincing evidence that Neises committed a significant vio-

lation of an unambiguous command without taking reasona-

ble and diligent steps to comply with our order. Prima Tek II,

525 F.3d at 542.

Neises’s first argument need not detain us long. It main-

tains that there is no valid contempt petition here because the

President unlawfully removed General Counsel Robb. We

need not reach the merits of this argument because the five-

member Board, on whose behalf the petition is filed in the first

place, see 29 C.F.R. § 101.15, formally endorsed seeking con-

tempt here. Even so, we are mindful that other courts have

recently rejected the same argument that Neises raises here.

See Exela Enters. Sols. v. NLRB, 32 F.4th 436, 441 (5th Cir. 2022);

NLRB v. Aakash, Inc., 58 F.4th 1099, 1103 (9th Cir. 2023).

Neises’s second argument is that the Special Master erred

by deciding that Exhibit QQ contained the parties’ tentative

agreements because there are material differences between

Exhibit QQ and the Union’s version of the tentative agree-

ments. We cannot accept this submission. The documents are

essentially the same; the two differences are immaterial. First,

Article II, Section 3 has an extra sentence in the Union’s ver-

sion: “The Employer agrees to accept the current Union

10 No. 18-1774

authorization cards to demonstrate employee’s authorization

of payroll deductions to include but not limited to: dues, as-

sessments, C.O.P.E., market recovery, and vacation savings.”

Second, the Union’s version of Article XV indicates the par-

ties’ tentative agreement; Exhibit QQ does not.

The extra sentence in Article II, Section 3 does not create a

material dispute over the essential agreement expressed by

that provision. Nor does it place in doubt that Neises retracted

that essential agreement. Article II, Section 3 provides that

Neises would, upon an employee’s authorization, deduct Un-

ion dues and remit them to the Union. The contested sentence

describes how an employee could demonstrate that the em-

ployee authorized the deduction. To the extent that Neises

complains that there is no evidence it tentatively agreed to

this sentence, the Special Master found, and we agree, that the

sentence was not part of the parties’ tentative agreements. But

a one-sentence discrepancy in a thirteen-page document does

not cast serious doubt on the remainder of the parties’ tenta-

tive agreements. In any event, Neises’s August 4 proposal ef-

fectively retracted the parties’ agreement on this point; it spe-

cifically proposed charging $50 per Union employee, per pay

period, for deducting Union dues. That proposal eviscerated

the parties’ prior agreement that Neises would deduct Union

dues without charge, irrespective of how an employee au-

thorized the deduction.

Nor is there a material factual dispute over Article XV.

There is no serious doubt whether the parties tentatively

agreed to these provisions; they did not. The Union’s repre-

sentatives repeatedly told Neises that the agreement’s dura-

tion was open to negotiation. And, as the Special Master

No. 18-1774 11

correctly found, Neises’s own Exhibit QQ accurately reflects

that Article XV was open for negotiation.

Neises’s final argument is that the version of the tentative

agreements from May is the best reflection of the parties’ ten-

tative agreements. This is so, in Neises’s view, because the

draft from May contains tentative agreements with handwrit-

ten initials next to various provisions. But this argument

simply ignores Mr. Jaskowiak’s testimony that Neises’s Ex-

hibit QQ reflected the terms to which the parties had tenta-

tively agreed. And as the Board points out, the parties did not

establish any ground rules about initialing agreed-upon pro-

posals or require that the parties would initial tentative agree-

ments. Thus, the presence or absence of initials does not con-

trol.

The Special Master decided correctly that the parties

reached tentative agreements on many articles to be included

in the collective bargaining agreement. He rightly determined

that Exhibit QQ accurately reflects the parties’ tentative agree-

ments.

C.

Neises next makes three arguments why it should not be

held in contempt for refusing to bargain in good faith with the

Union. First, it submits that it could not have bargained in bad

faith because of the differences between the two versions of

the tentative agreements. Second, it contends that the Board

failed to demonstrate that Neises was required to bargain in

good faith. Third, an order to bargain in good faith is an im-

permissibly overbroad, obey-the-law command.

12 No. 18-1774

1.

Neises submits that it did not bargain in bad faith when it

rejected the Union’s version of the tentative agreements be-

cause the Union’s version was substantially different from

Neises’s version. But, as we already have noted, this argu-

ment must fail because the two versions are materially iden-

tical. If Neises’s refusal to bargain were limited to Article II,

Section 3, or Article XV, it may have had good cause to pro-

pose altering those tentative agreements. But that did not hap-

pen here. Neises reversed its position on matters unrelated to

these two minor discrepancies. Its argument that it did not

bargain in bad faith because of these two differences is simply

a post-hoc excuse that it never presented to the Union as a

reason to renegotiate.

Neises next argues that it did not bargain in bad faith be-

cause its proposals were necessitated by an economic down-

turn caused by the COVID-19 pandemic. It relies on Chicago

Local No. 458-3M, Graphic Communications International Union

v. NLRB, 206 F.3d 22, 29–31 (D.C. Cir. 2000), for the proposi-

tion that changed economic conditions present good cause for

renegotiation of tentative agreements. But, as the Board notes,

this argument also appears to be a post-hoc excuse because

Neises never told the Board or the Union that it needed to re-

negotiate terms for this reason. Neises makes no effort to ex-

plain why changed economic conditions would support re-

tracting tentative agreements over noneconomic terms.

Neises’s final argument that it did not bargain in bad faith

is that the Special Master erred when he decided that Neises

effectively eviscerated the parties’ tentative agreements.

Neises says it merely “made proposals in response to the

No. 18-1774 13

Union’s June 26 proposals”20 on mandatory bargaining sub-

jects. But Neises did not simply propose terms for open arti-

cles or sections, it reneged on the parties’ tentative agree-

ments, which is evidence of bad faith. See Polycon Indus., Inc.

v. NLRB, 821 F.3d 905, 907 (7th Cir. 2016); Am. Seating Co. of

Miss. v. NLRB, 424 F.2d 106, 108 (5th Cir. 1970). For instance,

after the parties agreed that Neises would deduct Union dues

without fee, Neises proposed charging $50 per employee, per

pay period. After the parties agreed that the workday would

not begin before 6:00 am and would include two, paid ten-

minute breaks and an unpaid thirty-minute lunch break,

Neises proposed a new start time and eliminating the paid

breaks. After the parties agreed that a workweek would be

forty hours, Monday through Friday with Saturday as a

makeup day, Neises proposed that the workweek would run

Monday through Saturday and that it could institute shift

21

work or ten-hour days at its discretion.

The Special Master highlighted two additional indicia of

bad faith; Neises ignores both. First, the Special Master noted

that Neises proposed a management’s-rights provision that

evidenced bad faith because it would bar the Union from tak-

ing part in decision making about Union members’ working

hours and conditions. See Frankl v. HTH Corp., 650 F.3d 1334,

1359 (9th Cir. 2011) (noting that a virtually unlimited manage-

ment’s-rights clause indicates bad faith). Second, Neises pro-

posed a grievance procedure that would make the arbitrator

liable to the dissatisfied party, which, noted the Special

20 App. Dkt. 55 at 29.

21 See App. Dkt. 38-2 at 10–12 (listing these and other retractions).

14 No. 18-1774

22

Master, “is essentially no procedure at all.” Moreover,

Neises offered these proposals even though the parties al-

ready had reached tentative agreements on both subjects.

2.

Neises’s second argument why it should not be held in

contempt is that the Board failed to prove that our 2020 judg-

ment and consent order required Neises to bargain in good

faith. Contempt requires the court to find that the party vio-

lated an unambiguous, specific command. Prima Tek II, 525

F.3d at 542; Ferrell v. Pierce, 785 F.2d 1372, 1378 (7th Cir. 1986).

Neises argues that our orders do not give it “‘explicit notice’

of ‘what conduct is outlawed,’” Taggart v. Lorenzen, 139 S. Ct.

1795, 1802 (2019) (quoting Schmidt v. Lessard, 414 U.S. 473, 476

(1974) (per curiam)), because the 2020 judgment and consent

order do not use the phrase “in good faith.”

Taggart holds that civil contempt is appropriate “if there is

no fair ground of doubt as to whether the order barred” the con-

duct at issue. Id. at 1799. Our 2020 consent order requires

Neises to comply fully with the order and judgment we had

entered in May 2018. There are two relevant provisions in that

judgment: (1) Neises must “bargain with the Union,” and

(2) Neises must “cease and desist from failing and refusing to

recognize and bargain” with the Union or “in any like or re-

lated manner interfering with, restraining, or coercing em-

23

ployees.”

22 App. Dkt. 38-2 at 13.

23 App. Dkt. 2-2 at 2 (cleaned up); see also App. Dkt. 21-2 at 7 (requiring

the same).

No. 18-1774 15

There is no fair ground of doubt that our orders required

good-faith bargaining. A command to bargain necessarily en-

compasses an order to engage in genuine efforts to reach an

accord. See, e.g., NLRB v. Ins. Agents Int’l Union, 361 U.S. 477,

485 (1960); NLRB v. Overnite Transp. Co., 938 F.2d 815, 821 (7th

Cir. 1991). Otherwise, as the Special Master pointed out,

Neises could attend bargaining sessions and propose illegal

terms without violating this court’s orders. Parties must make

reasonable efforts to comply with our orders, not engage in

crafty feints designed to avoid court-imposed obligations.

McComb v. Jacksonville Paper Co., 336 U.S. 187, 192–93 (1949);

Am. Fletcher Mortg. Co. v. Bass, 688 F.2d 513, 517 (7th Cir. 1982).

Neises’s prior submissions demonstrate that it understood its

obligation. Indeed, in response to an earlier contempt petition

in this case, Neises responded that “it should not be held in

contempt … because it met and bargained with the Union in

good faith … . The Judgment required good faith bargaining ‘upon

24

request’ by the Union.”

Neises nevertheless maintains that good-faith bargaining

is too opaque a concept to form the basis of a contempt order.

It points out that the Board’s website lists more than fifty ex-

amples of what good-faith bargaining might include. But this

observation misses the point. The Special Master did not de-

termine that Neises failed to engage in specific acts that might

qualify as good-faith bargaining. Rather, he concluded that

Neises engaged in a course of conduct designed to subvert the

possibility of reaching an agreement. It did so by offering re-

gressive modification of tentative agreements, proposing ob-

viously preposterous terms, suggesting a management’s-

24 App. Dkt. 15 at 2 (emphasis added).

16 No. 18-1774

rights clause that would exclude the Union from decision

making, and proposing a worthless grievance procedure.

Neises cannot avoid contempt simply because the order did

not specifically enumerate every possible violative act.

McComb, 336 U.S. at 192–93.

3.

Neises’s final argument is that commanding it to bargain

in good faith amounts to an impermissible “obey-the-law”

command. It relies on the Supreme Court’s directive that the

Board cannot seek to enforce every aspect of the National La-

bor Relations Act in contempt proceedings just because a

party violated one aspect of the Act. NLRB v. Express Pub. Co.,

312 U.S. 426, 433 (1941). The Board may seek to hold a party

in contempt only for violations that are similar or fairly re-

lated to the unfair labor practice that gave rise to the original

order enforcing the Board’s decision. See id. at 435. Neises ar-

gues that the Board cannot use these contempt proceedings to

charge it with bad faith bargaining because that is not similar

or fairly related to the unfair labor practice that gave rise to

this case.

This argument depends on the proposition that failing to

bargain in good faith is unrelated to Neises’s failure to recog-

nize or bargain with the Union at all. See McComb, 336 U.S. at

192–93. We reject this argument; Neises’s failure to bargain in

good faith is related to its initial failure to recognize and to

bargain with the Union. As the Supreme Court has noted,

“the duty of management to bargain in good faith is essen-

tially a corollary of its duty to recognize the union.” Ins.

Agents Int’l Union, 361 U.S. at 484–85.

No. 18-1774 17

Neises significantly violated our unambiguous command

to bargain in good faith with the Union and failed to make

reasonable and diligent efforts to comply with that command.

Therefore, in an order issued on January 6, 2023, we adjudi-

cated Neises in civil contempt.

II.

Following our contempt order, we afforded the parties the

opportunity to present their views on the appropriate rem-

edy. Each side has responded. The Board also has submitted

25

a proposed order. The parties have employed that proposed

order as an outline for their discussion of an appropriate rem-

edy. We also refer to that document and indicate, in the course

of our discussion, those areas where alteration is required.

Neises does not oppose all the measures proposed by the

26

Board. We therefore limit our discussion to those matters

contested by Neises or where we think some elaboration will

assist the parties.

25 The Board’s proposed order is contained in its motion for an order im-

posing contempt remedies. See App. Dkt. 41 at 3–12. The proposed reme-

dies are contained in numbered paragraphs, beginning at paragraph 5. See

id.

26 The following proposed remedies are uncontested aside from Neises’s

ongoing contention that it cannot be ordered to bargain in good faith: Pro-

posed remedies 5(b), (c)(i), (c)(ii), (d), (e). Briefly, proposed remedy 5(b)

requires good-faith bargaining, 5(c)(i) requires Neises to withdraw its pro-

posals that retracted previous tentative agreements, 5(c)(ii) requires

Neises to commit to its previous tentative agreements, 5(d) requires

Neises to meet and bargain in good faith at least once every thirty days,

and 5(e) requires Neises to continue to meet and bargain until the parties

reach an agreement or a bona fide impasse. See App. Dkt. 41 at 4–5.

18 No. 18-1774

The Board asks us to impose substantial contempt reme-

dies. It submits that these remedies are warranted because of

Neises’s history of contumacious conduct. In crafting a rem-

edy, we must keep in mind the dual purposes of civil con-

tempt: (1) to coerce the party in contempt into compliance,

and (2) to compensate the complainant for losses caused by

the defendant’s noncompliance. Taggart, 139 S. Ct. at 1801.

Therefore, the remedy we impose must be sufficient to bring

Neises into compliance, see United States v. United Mine Work-

ers of Am., 330 U.S. 258, 304 (1947), and also must accord “full

remedial relief,” McComb, 336 U.S. at 193. In short, the nature

and extent of the contumacious conduct determines the na-

ture and extent of the remedy.

A.

1.

Neises first objects to any proposed remedy that includes

27

the phrase “good faith.” It continues to assert that “good

faith bargaining” is too subjective and ambiguous a term to

give explicit notice of what is required. Neises also objects to

several related terms in the proposed remedies, such as “good

cause” and “predictably unacceptable bargaining pro-

28

posals.”

This objection has no merit. In adjudicating Neises in con-

tempt, we already have concluded that an order to bargain in

good faith is not impermissibly ambiguous. There is no “fair

ground of doubt” about what is required. Taggart, 139 S. Ct.

27 That phrase can be found in the Board’s proposed remedies 5(a), (b),

(c), (d), (e) and 6.

28 See App. Dkt. 66 at 3–4.

No. 18-1774 19

at 1799 (emphasis omitted). “[T]he duty of management to

bargain in good faith is essentially a corollary of its duty to

recognize the union.” Ins. Agents Int’l Union, 361 U.S. at 484–

85; see also Overnite Transp. Co., 938 F.2d at 821 (noting that the

duty to bargain “requires the employer to approach collective

bargaining with a good faith intention … to come into agree-

ment”). Nor are the other terms to which Neises objects fatally

ambiguous. Withdrawing tentative agreements without good

cause is a sign of bad-faith bargaining. Polycon Indus., 821 F.3d

at 907. Requiring Neises to adhere to tentative agreements if

it lacks good cause to change its position is therefore unre-

markable.

2.

The Board proposes ordering Neises to “[c]ommit to its

prior tentative agreements made with the Union during bar-

29

gaining as they existed on May 28, 2020.” Neises does not

contest this remedy. In the Board’s reply, however, it goes fur-

ther, asking us to rule that the extra sentence in the Union’s

version of Article II, Section 3 is part of the parties’ tentative

agreements.

We deny the Board’s request to rule that the extra sentence

in Article II, Section 3 as part of the parties’ tentative agree-

ments. But our denial does not prevent the parties from con-

tinuing to bargain over how employees can authorize the de-

duction of their Union dues. We therefore clarify the pro-

posed remedy as follows:

Commit to the tentative agreements made with

the Union during bargaining as contained in the

29 App. Dkt. 41 at 5.

20 No. 18-1774

document labeled Exhibit QQ, which the Spe-

cial Master determined are the agreements as

they existed on May 28, 2020.

3.

Neises next objects to the proposed requirement that it be

required to present written proposals on all issues over which

the parties have not yet reached a tentative agreement. It asks

the court to clarify that oral proposals during bargaining are

acceptable.

An order to present written proposals in advance of bar-

gaining sessions is certainly warranted here in light of

Neises’s prior bargaining conduct. To address Neises’s con-

cern, however, we amend the proposed order as follows:

Before each bargaining session, present written

proposals for further bargaining on all issues

that remain unresolved by tentative agree-

ments. This requirement does not limit good-

faith oral responses and counterproposals dur-

ing bargaining sessions. Any resulting tentative

agreements shall be promptly memorialized in

writing.

4.

Neises next objects to the proposed requirement that it in-

form each of its agents or representatives of the judgment,

2020 consent order, and contempt adjudication. It maintains

that the Board has not identified a basis for this remedy and

that the language is unclear about what documents it must

pass along.

No. 18-1774 21

This objection is without merit. Neises can only bargain

through its representatives, who must be apprised of our or-

ders to ensure compliance with them. See Connolly v. J.T. Ven-

tures, 851 F.2d 930, 935 (7th Cir. 1988). We therefore impose

this requirement.

5.

Neises next objects to the requirement that it post notices

to employees of the court’s orders and contempt adjudication

and to file a sworn statement attesting to the steps it has taken

to comply. Neises also objects to permitting the Board access

to its facilities to ensure compliance. It argues that giving the

Board access is only appropriate if there is a demonstrated

likelihood that it will fail to cooperate.

These objections have no merit. Notice-posting is a com-

mon purgation remedy. See, e.g., Hoffman Plastic Compounds,

Inc. v. NLRB, 535 U.S. 137, 152 (2002). The Board describes it

30

as “sacrosanct.” Here, Neises has shown itself likely to flout

our orders, so allowing the Board access to ensure compliance

is appropriate. Notably, Neises has already agreed to these

remedies in the previous consent orders.

B.

1.

In its motion for contempt remedies, the Board requested

a monetary penalty “as contemplated in the 2020 Consent Or-

31

der.” Neises objects on the basis that the Board did not

30 App. Dkt. 69 at 5.

31 App. Dkt. 41 at 7.

22 No. 18-1774

specify the amount of the penalty. It further submits that it

should not be penalized for defending against the contempt

petition.

The Board, in its reply, clarifies that it seeks $192,400 in

penalties. It arrives at this number as follows: an initial

$10,000 fine per violation (the Board stipulates that there is

just one violation here – failing to bargain in good faith), plus

$200 per day that violation continued, running from August

4, 2020, through February 2, 2023 (totaling 912 days). Neises’s

protest that it will be fined for defending the contempt peti-

tion relies on a false premise. It agreed to this fine schedule in

the 2020 consent order and judgment. The penalty we impose

here is designed to address Neises’s failure to comply with

our prior orders and to coerce Neises into compliance.

Neises also moves to file a sur-response to contest the pen-

alty amount. We grant the motion only insofar as it relates to

the amount of the penalty; Neises’s other arguments are im-

proper. Neises argues that it cannot be penalized for failing to

bargain after the Board decided to initiate contempt proceed-

ings because, at that point, the Union refused to resume bar-

gaining. But this argument misrepresents the record. The Un-

ion said it would resume bargaining if Neises retracted its re-

gressive proposals; only if Neises did not would the Union

32

“let things play out” in the contempt proceedings. Thus, this

conditional refusal did not affect how long Neises’s violation

has continued. We impose the full financial penalty the Board

requests.

32 See SM. Dkt. 71-3 at 3–4.

No. 18-1774 23

2.

The Board further seeks an award of the Union’s “reason-

able costs and expenses attributable” to Neises’s violation of

the 2020 consent order. Neises objects that this remedy vio-

lates the “American Rule” that prevailing parties are not

awarded attorneys’ fees without statutory authorization. See

Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126 (2015).

Neises acknowledges an exception for civil contempt cases.

See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.

714, 718 (1967).

We will award compensatory damages to the Union. Be-

cause civil contempt proceedings are partly about compensat-

ing the prevailing party, McComb, 336 U.S. at 191, compensa-

tory damages are typically required, see Thompson v. Cleland,

782 F.2d 719, 722 (7th Cir. 1986). As the party that charged

Neises with an unfair labor practice, the Union is a prevailing

party here. See Ahearn v. Int’l Longshore & Warehouse Union,

721 F.3d 1122, 1128 (9th Cir. 2013) (“the charging party … is

entitled to compensation for its actual damages”); 29 C.F.R.

§ 102.1(h) (defining “party”). The Union will submit its costs

within thirty days of the court’s opinion. Neises may object to

those costs within twenty-one days; if it does, the Union may

reply within fourteen days of Neises’s objections.

3.

The Board seeks its own attorneys’ fees, calculated at the

prevailing rate in Washington D.C. It argues that Neises has

unreasonably and vexatiously multiplied the proceedings by

making frivolous arguments.

Neises objects, saying it simply responded to all filings in

this contempt case and that it has not unreasonably and

24 No. 18-1774

vexatiously multiplied the proceedings. It insists that its ar-

guments were based on its reasonable beliefs and had a plau-

sible legal or factual basis. See Jolly Grp., Ltd. v. Medline Indus.,

Inc., 435 F.3d 717, 720 (7th Cir. 2006). Finally, Neises argues

that the Board’s attorneys’ fees should be calculated at their

actual salary rates, not the prevailing market rate in Washing-

ton D.C. See Wisconsin v. Hotline Indus., Inc., 236 F.3d 363, 366–

67 (7th Cir. 2000).

We will award the Board’s attorneys’ fees. We have dis-

cretion to award attorneys’ fees. See Tranzact Techs., Inc. v.

1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005); CFTC v.

Premex, Inc., 655 F.2d 779, 785 (7th Cir. 1981); In re Establish-

ment Inspection of Microcosm, 951 F.2d 121, 126 (7th Cir. 1991).

These fees are regularly awarded in contempt cases. See NLRB

v. Haven Salon + Spa, No. 21-2413, 2023 WL 2230865, at *2 (7th

Cir. Feb. 27, 2023) (awarding attorneys’ fees for contempt);

NLRB v. Loc. 825, Int’l Union of Operating Eng’rs, 430 F.2d 1225,

1230 (3d Cir. 1970); NLRB v. Goren Printing Co., 1990 WL

300325, at *12 (1st Cir. Sept. 28, 1990) (unpublished). Here,

Neises has pursued arguments “without a plausible legal or

factual basis and lacking in justification.” Jolly Grp., Ltd.,

435 F.3d at 720 (quoting Pac. Dunlop Holdings, Inc. v. Barosh, 22

F.3d 113, 119 (7th Cir. 1994)). Attorneys’ fees, moreover, are

not duplicative of the contempt penalty. See Premex, Inc., 655

F.2d at 785.

And the Board’s fees will be computed at the prevailing

market rate in Washington D.C., where the Board’s attorneys

are based. Neises’s reliance on Hotline Industries, Inc., 236 F.3d

at 366–67, is misplaced. There, the court was confronted with

an unusual statutory scheme that limited attorneys’ fees to

“actual expenses.” Id. at 367. But “reasonable fees” are

No. 18-1774 25

generally calculated at the prevailing market rate. Id.; see also

Blum v. Stenson, 465 U.S. 886, 895 (1984); NLRB v. Loc. 3, Int’l

Brotherhood of Elec. Workers, 471 F.3d 399, 406–07 (2d Cir. 2006).

The Board will submit its attorneys’ fees within thirty days of

the court’s final opinion. Neises may object to the Board’s cal-

culation within twenty-one days; if it does, the Union may re-

ply within fourteen days.

C.

The Board also seeks an order extending by six months the

certification of the Union as the exclusive representative of the

bargaining unit. It submits that such an order is necessary for

three reasons: (1) to vindicate the employees’ rights under

section 7 of the National Labor Relations Act, which have

been trampled by Neises; (2) to remove Neises’s incentive to

delay bargaining; and (3) to demonstrate that the court will

not permit Neises to flout its orders.

Neises objects, submitting that the decertification bar pro-

tects the Union, not employee rights. It notes that most of the

employees filed a petition to decertify the Union, although the

Board dismissed that petition. It argues that the remedy “im-

pacts employee Section 7 rights, which have already been

33

suppressed for several years.”

Neises’s objection has no merit under the circumstances of

this case. There is no doubt that a decertification bar is an ex-

traordinary remedy. See Ron Tirapelli Ford, Inc. v. NLRB, 987

F.2d 433, 439 (7th Cir. 1993). But this remedy is appropriate

when an employer engages in “outrageous and pervasive”

unfair labor practices. Id. at 440 (citing NLRB v. Gissel Packing

33 App. Dkt. 66 at 14.

26 No. 18-1774

Co., 395 U.S. 575, 611–13 (1969)). The remedy is also appropri-

ate when less outrageous conduct nevertheless “erode[s] ma-

jority strength or adversely affect[s] the election process.” Id.

And a decertification bar that lasts six months is appropriate

when the employer’s failure to bargain in good faith is part of

its effort to “poison[] the bargaining process.” Rock-Tenn Co.

v. NLRB, 69 F.3d 803, 810 (7th Cir. 1995); see also NLRB v. Goya

Foods of Fl., 525 F.3d 1117, 1128–29 (11th Cir. 2008) (approving

a decertification bar lasting up to one year).

A six-month decertification bar is appropriate here. Neises

has engaged in outrageous and pervasive conduct. It has

flouted this court’s orders for years and refused to bargain in

good faith. Ron Tirapelli Ford, 987 F.2d at 441 (noting that “if

the employer’s violation is deliberate and egregious enough”

a decertification bar is appropriate). The Board says that

34

Neises’s conduct has eroded the Union’s majority strength.

See id. at 440. Given Neises’s pattern of inhibiting bargaining,

it is no surprise that the employees’ faith in the Union may

have weakened. Without extending the certification period,

Neises may well obtain the object of its obstructive behavior:

the Union’s destruction. The employees may still choose to

decertify—that is their prerogative—but a six-month exten-

sion will give them a fair opportunity to assess their interests

on a level playing field. See Gissel, 395 U.S. at 613 (noting that

a temporary decertification bar does not prevent employees

from later disavowing the Union).

34 See App Dkt. 69 at 10.

No. 18-1774 27

D.

Next, the Board requests an enhanced prospective fine

schedule against Neises: $20,000 per violation and $300 per

day for each day the violation persists. It also seeks a prospec-

tive fine schedule against Neises’s bargaining representa-

35

tives who help Neises violate our orders: $5,000 per viola-

tion and $100 per day for each day the violation continues. It

says that this remedy is necessary to assure purgation and de-

ter future violations.

Neises objects. It says that the Board provides no evidence

that the fines will accomplish their purpose. It also notes that

prospective fines are not supposed to be punitive. Neises fur-

ther objects to fines against its bargaining representatives,

saying this would restrict its constitutional right to counseled

representation and advice. It also says that it would be chal-

lenging to determine whether counsel has violated this order

without delving into privileged communications.

We will impose the prospective fine schedule against

Neises, but not its bargaining representatives. The point of a

prospective fine is to coerce future compliance. See United

Mine Workers of Am., 330 U.S. at 304. Here, earlier prospective

fines proved insufficiently onerous to prevent Neises’s behav-

ior. Increasing the prospective penalties Neises faces will aid

35We employ “bargaining representatives” as a stand-in for the lengthier

formulation the Board provides: “each of Neises’s officers, agents, attor-

neys, successors, and assigns, and persons who, having knowledge of the

Judgement, Consent Order, and Contempt Adjudication, act in active con-

cert or participation with Respondent” regardless of whether they are

named as a respondent in the contempt adjudication. App. Dkt. 41 at 9–

10.

28 No. 18-1774

in deterring Neises from persisting in its contumacious con-

duct.

We decline, however, to impose this prospective fine

schedule against Neises’s bargaining representatives. True, a

corporation can only act through its officers, agents, etc., Con-

nolly, 851 F.2d at 935, and it is well established that such per-

sons can be punished for the corporation’s misconduct, Tran-

zact Techs., Inc., 406 F.3d at 856. When “those who are officially

responsible for the conduct of [the business’s] affairs” know-

ingly violate court orders aimed at the business, “they, no less

than the corporation itself, are guilty of disobedience, and

may be punished for contempt.” Wilson v. United States, 221

U.S. 361, 376 (1911). Even so, the unusual remedy of imposing

prospective personal liability against Neises’s bargaining rep-

resentatives does not currently seem necessary given the

other remedies we are imposing, including a significant pro-

spective fine schedule against Neises itself.

E.

1.

The Board also asks for various remedies that would re-

quire ongoing court involvement. It proposes that we require

prior approval from this court before Neises can implement

any proposal after reaching a “lawful and legitimate bargain-

36

ing impasse.” Neises submits that this determination is for

the Board, not for the court.

Neises has the better argument here. It is generally the

Board’s role to determine whether any impasse is lawful. See

Mike-Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318, 325 (D.C. Cir.

36 App. Dkt. 41 at 10.

No. 18-1774 29

2015). We therefore will alter the proposed remedy accord-

ingly:

Respondent Neises may not, without prior ap-

proval from the National Labor Relations

Board, implement any bargaining proposal

without the agreement of the Union based on an

assertion of a lawful and legitimate bargaining

impasse.

2.

The Board also proposes requiring Neises to provide ad-

vance notice to the Board, the Union, and this court, before it

seeks outside help to resolve bargaining disputes with the

Union. Neises submits that the Board identifies no basis for

this remedy.

We agree with Neises. The Board provides inadequate jus-

tification for this broad remedy. We see no reason to restrict

the parties’ ability to resolve any future disputes without re-

sorting to the courts.

3.

The Board also asks that our order provide that, upon the

Board’s motion, further bargaining disputes be subjected to

supervised mediation or if the parties agree, to interest arbi-

tration. It also asks that it be permitted to move for future ne-

gotiations to be transcribed at Neises’s expense. Neises main-

tains that the Board provides no basis for such remedies.

The Board’s request that, should it become necessary, it

can ask us to require Neises to pay for the transcription of fu-

ture negotiations is reasonable here. The court has authority

to grant such relief as is necessary to ensure compliance with

30 No. 18-1774

its orders. McComb, 336 U.S. at 193–94. Here, Neises was able

to obscure what the parties agreed to, in part, because the ne-

gotiation process was not always clear. To head-off future dis-

putes of a similar nature, transcription may become appropri-

ate. If it does, the Board may request that we order that future

negotiations be transcribed at Neises’s expense. Ordering

court-supervision of the bargaining process at the Board’s

motion, however, is not appropriate at this time. There are al-

ternate and less intrusive remedies available should the need

arise.

4.

The Board proposes requiring Neises to provide advance

notice to the Board, the Union, and the court if Neises closes

or files for bankruptcy. Neises objects that this restricts its

ability to dissolve or enter bankruptcy, in violation of its “ab-

solute right to terminate its business for any reason [it]

pleases.” First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 677

(1981) (quoting Textile Workers v. Darlington Co., 380 U.S. 263,

268 (1965)).

The Board maintains, however, that this remedy does not

interfere with Neises’s ability to close; it just requires advance

notice. It justifies this incursion on Neises’s prerogatives as

necessary so that the Board can determine that Neises is not

trying to dissolve simply to avoid its court-imposed obliga-

tions.

We think that this remedy will be sufficiently effective if

we limit advance notice to the Board and the Union, not the

court. Cf. Oil, Chem. & Atomic Workers Int'l Union v. NLRB, 547

F.2d 575, 597 (D.C. Cir. 1976) (prohibiting the employer from

“threatening to go out of business or close the plant on

No. 18-1774 31

account of the union”). If any of Neises’s future closure or

bankruptcy decisions require additional involvement from

this court, the Board will notify the court.

5.

The Board also proposes requiring Neises to inform the

Board, the Union, and this court at least fourteen days in ad-

vance of any expenditure that will exceed $5,000. Neises

points out that this would cripple its ability to operate. The

Board’s reply does not address this concern.

The Board has not justified this proposal adequately.

Neises’s concern that this remedy would cripple the business

is realistic. Requiring two-weeks’ notice of any and every

transaction that exceeds $5,000 would put Neises in an unre-

alistic bind. We therefore decline to impose this remedy.

Conclusion

Except as otherwise specified in this opinion, the Board’s

requested remedies will be imposed as requested. The Board

may submit for approval an order and judgment that con-

forms with this opinion.

The Board may recover its costs.

It is so ordered.