Substance Matters: Third Circuit Affirms that the Totality of an Employer’s Contract Proposals Can Evidence Bad-Faith Bargaining; Impasse Barred and Remedy Challenges Forfeited Absent §10(e) Preservation

Introduction

In NLRB v. PG Publishing Co., Inc. (3d Cir. Nov. 10, 2025) (not precedential), the Third Circuit denied PG Publishing’s petition for review and granted the National Labor Relations Board’s application for enforcement, upholding findings that PG Publishing: (1) bargained in bad faith in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA); (2) prematurely declared impasse and unlawfully implemented unilateral changes; and (3) engaged in unlawful surveillance (or at least created an “impression of surveillance”) of protected union activity in violation of Section 8(a)(1). The court also refused to consider the employer’s challenge to the Board’s “Thryv” make-whole remedies and a bargaining-expense award because the employer did not preserve those objections before the Board as required by NLRA §10(e).

The decision is notable for two reasons. First, it expressly endorses an ALJ’s ability to infer bad-faith bargaining from the totality of an employer’s proposals—especially where those proposals, taken together, would leave employees with fewer rights than they would have without a contract. Second, it underscores the strict jurisdictional bar of NLRA §10(e): remedy challenges must be presented to the Board with articulated grounds; perfunctory exceptions that merely quote the ALJ’s remedy are not enough.

Case Background

The dispute involves PG Publishing Co., Inc., doing business as the Pittsburgh Post-Gazette, and the Newspaper Guild of Pittsburgh/CWA Local 38061 (the “Guild”), the exclusive representative for certain editorial and related employees. After a series of expired agreements (2014–2017) and unsuccessful bargaining sessions, PG Publishing issued an August 2019 “best offer,” the Guild countered in September 2019, and the parties met again in February 2020 without resolving core issues (wages, hours, jurisdiction). COVID disruptions followed. In June 2020, PG Publishing sent a “last, best, and final offer” (the “Final Offer”) and, over the Guild’s stated willingness to resume bargaining, declared impasse on July 27, 2020 and unilaterally implemented new terms.

In fall 2020, the Guild held rallies protesting the unilateral implementation; PG Publishing hired security guards, two of whom appeared to photograph rally participants near the publisher’s home. The Guild filed multiple unfair labor practice charges, and an Administrative Law Judge (ALJ) sustained the charges, ordering make-whole relief. The Board adopted the ALJ’s decision and increased the remedies, including ordering compensation of the Guild’s bargaining expenses during the period of bad-faith bargaining. PG Publishing sought review; the NLRB cross-applied for enforcement; the Guild intervened.

Summary of the Opinion

The Third Circuit (Chung, J., joined by Restrepo and Bibas, JJ.) affirmed the Board’s determinations and remedies (as modified by the Board), concluding:

• Bad-faith bargaining: Substantial evidence supported the finding that PG Publishing bargained in bad faith. The ALJ appropriately considered the totality of the employer’s proposals—many of which ceded fundamental terms to unilateral employer control or diminished core rights—to infer an intent not to reach agreement.
• Impasse: Because PG Publishing engaged in bad-faith bargaining and declared impasse while the Guild stood ready to continue negotiations, the unilateral implementation violated Sections 8(a)(1) and (5).
• Surveillance: The employer’s conduct created an unlawful impression of surveillance at union rallies, in violation of Section 8(a)(1).
• Remedies and §10(e): The court lacked jurisdiction to reach the employer’s challenges to the Board’s Thryv make-whole remedy and the bargaining-expense award because the employer failed to raise the specific grounds for those objections before the Board.

Analysis

Precedents Cited and Their Role in the Decision

The court’s reasoning rests on established standards of deference and bargaining law:

• Standard of review and deference: The court reiterated the “highly deferential” review of Board orders (Trimm Associates, Inc. v. NLRB, 351 F.3d 99, 102 (3d Cir. 2003)) and plenary review for legal questions (Spectacor Mgmt. Group v. NLRB, 320 F.3d 385, 390 (3d Cir. 2003)), emphasizing special deference to the Board’s expertise in assessing bargaining dynamics (Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 413 (1982)). The court reviewed the ALJ’s findings because the Board adopted them, consistent with NLRB v. Starbucks Corp., 125 F.4th 78, 86 (3d Cir. 2024).
• Bad-faith bargaining and totality approach: The court drew on cross-circuit authorities recognizing that a party’s duty to bargain in good faith is assessed under the totality of conduct (Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1103 (1st Cir. 1981); Teamsters Local 515 v. NLRB, 906 F.2d 719, 726 (D.C. Cir. 1990); In re Public Service Co. of Oklahoma, 334 NLRB 487 (2001)). While parties need not make concessions, rigid adherence to proposals that strip core rights can support an inference of bad faith. The court approvingly cited District Hospital Partners, L.P. v. NLRB, 141 F.4th 1279, 1294 (D.C. Cir. 2025), for the proposition that proposals leaving employees with fewer rights than the law provides without a contract can justify a bad-faith inference.
• Impasse and unilateral implementation: Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991), teaches that unilateral changes to terms and conditions absent true impasse violate Sections 8(a)(1) and (5). Applying Saunders House v. NLRB, 719 F.2d 683, 687 (3d Cir. 1983), and the five factor Taft Broadcasting Co., 163 NLRB 475, 478 (1967), test, the court gave decisive weight to the employer’s bad faith, invoking Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963): there can be no legally cognizable impasse when a deadlock is caused by a party’s bad faith.
• Surveillance (or “impression of surveillance”): The court relied on Hanlon & Wilson Co. v. NLRB, 738 F.2d 606, 613 (3d Cir. 1984), holding that conduct creating the impression of surveillance violates §8(a)(1) if it reasonably tends to interfere with protected rights, even without proof of actual coercion, and cited U.S. Steel Corp. v. NLRB, 682 F.2d 98, 101 (3d Cir. 1982).
• Section 10(e) preservation: Echoing NLRB v. FedEx Freight, Inc., 832 F.3d 432, 437 (3d Cir. 2016), and Starbucks, 125 F.4th at 94, the court enforced §10(e)’s jurisdictional bar: objections not urged before the Board are unreviewable absent extraordinary circumstances (29 U.S.C. §160(e)). It emphasized the specificity requirement of 29 C.F.R. §102.46 and aligned with 3484, Inc. v. NLRB, 137 F.4th 1093, 1115 (10th Cir. 2025) and Nova Southeastern University v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015) in finding perfunctory exceptions insufficient to preserve a Thryv challenge.

Legal Reasoning

The court’s analysis proceeded along four tracks:

1. Bad-faith bargaining under §8(a)(5). The ALJ, whose findings the Board adopted, examined the employer’s proposals not in isolation but together. Those proposals would have:

   • Allowed PG Publishing to encroach on unit work (e.g., subcontracting and expanded use of stringers, i.e., independent contractors for reporting);
   • Granted unilateral employer control over work hours;
   • Vastly expanded the expired agreement’s no-strike clause;
   • Scaled back healthcare.

   The ALJ concluded that, in totality, these terms would have left employees with fewer rights than if they had no contract at all—a classic marker of surface bargaining rather than hard bargaining. The court rejected the employer’s argument that the substance of proposals is categorically off limits in a bad-faith analysis. To the contrary, while the Act does not compel concessions, proposal substance is relevant when it reveals a design to avoid agreement, particularly where it undermines core statutory protections and the very function of a collective bargaining agreement. Substantial evidence supported this inference.

2. Impasse and unilateral implementation. Applying Taft’s five factors, the court put special weight on the second factor—the parties’ good faith—citing Marine & Shipbuilding’s rule that bad faith defeats impasse. The timing mattered: on July 20, 2020, the Guild expressly asked to meet and review the Guild’s pending September 2019 proposal; PG Publishing did not respond and declared impasse a week later, even though the parties had not finished discussing the Guild’s latest package and the pandemic had disrupted the bargaining cadence. The court agreed that neither party could reasonably have concluded that further bargaining would be futile. Unilateral implementation on July 27, 2020, therefore violated the Act, regardless of whether some implemented terms were more favorable than the final offer.

3. Unlawful surveillance/impression of surveillance. Photographs in evidence showed employer-hired security guards appearing to photograph rally participants in front of the publisher’s home. The ALJ found no credible alternative explanation (such as documenting trespass), and under Hanlon & Wilson, the “impression” sufficed. Substantial evidence supported a violation of §8(a)(1).

4. Remedies and §10(e). The Board’s order included Thryv-type make-whole relief—compensating employees for “direct or foreseeable pecuniary harms” beyond traditional backpay—and required PG Publishing to reimburse the Guild’s bargaining expenses incurred during the bad-faith bargaining period. The employer failed to preserve its legal challenges to these remedies: its exception merely quoted the ALJ’s remedial language without stating any grounds (statutory, doctrinal, or otherwise), and it did not object to the bargaining-expenses remedy despite knowing the General Counsel sought it. Under §10(e) and 29 C.F.R. §102.46, that forfeiture deprived the court of jurisdiction. The court also rejected the notion that later-decided case law (the Third Circuit’s December 2024 Starbucks decision limiting Board compensatory remedies) excused the lack of preservation; nothing prevented the employer from timely raising the authority argument with the Board.

Impact and Practical Significance

Although designated non-precedential, the decision is instructive for labor practitioners within the Third Circuit and beyond.

• Substantive proposals can prove bad faith. The court explicitly rejects the idea that ALJs and the Board may not consider the substance of proposals when assessing good faith. Where an employer’s package, viewed holistically, would substantially erode baseline statutory rights or the essential protections of a CBA, it can support an inference of surface bargaining. Employers relying on “hard bargaining” should ensure their positions are consistent with a genuine intent to reach agreement and not structured to render a contract worse than the statutory status quo.
• Declaring impasse remains a high-stakes step. Impasse cannot be declared while the other side stands ready to bargain or when a party’s own bad faith has produced the deadlock. External disruptions (e.g., pandemic conditions) do not by themselves create futility. Before unilateral implementation, ensure the parties have exhausted meaningful discussion of pending proposals and that Taft factors—especially good faith and contemporaneous understanding—support an impasse conclusion.
• “Impression of surveillance” is enough. Photographing, videotaping, or appearing to record participants at union rallies—even off-site such as near a manager’s home—can create an unlawful impression of surveillance. Employers should narrowly tailor any security response to avoid conduct that could reasonably be perceived as monitoring protected activity.
• Relief after Thryv and Starbucks requires preservation. The Board’s Thryv framework expands make-whole remedies to include foreseeable pecuniary harms. The Third Circuit’s 2024 Starbucks decision casts doubt on the scope of certain compensatory damages, but this case underscores that courts will not reach those merits if counsel fails to preserve specific grounds before the Board. To challenge Thryv-based awards or “extraordinary” remedies like bargaining-expense reimbursement, parties must file exceptions specifying legal bases (statutory authority, causation, scope, due process, or retroactivity), not merely quote the ALJ’s remedy.
• Board’s remedial toolbox remains robust. While the court did not pass on the legality of Thryv or bargaining-expense remedies on the merits, enforcement here signals that, absent preserved objections, the Board’s evolving remedial regime will stand. Practitioners should anticipate bargaining-expense awards in cases of pervasively bad-faith bargaining and be prepared to litigate those issues in exceptions.

Complex Concepts Simplified

• Good-faith bargaining (NLRA §8(a)(5)): Parties must meet and confer with a sincere intent to reach agreement. The law permits “hard bargaining” (firm positions grounded in legitimate interests) but prohibits “surface bargaining” (going through the motions with no real intent to agree). Factfinders assess the “totality” of conduct, including proposal content, timing, and responsiveness.
• Impasse: A genuine deadlock after good-faith bargaining on mandatory subjects that makes further talks futile. Only then may an employer implement changes consistent with its last offer. When bad faith causes the deadlock, there is no lawful impasse.
• Unilateral implementation: Employer-imposed changes to terms and conditions of employment without agreement. Unlawful if implemented before impasse, even if some changes are favorable to employees.
• Impression of surveillance: Conduct that would make a reasonable employee think management is watching or recording union activity (e.g., conspicuous photographing at rallies), which can chill NLRA rights and violate §8(a)(1) even without proof of actual coercion.
• Thryv make-whole remedy: A Board remedial approach that aims to restore employees to the position they would have been in absent the unfair labor practice, including “direct or foreseeable pecuniary harms” like out-of-pocket medical expenses or lost retirement contributions, with interest.
• Bargaining-expense remedy: In egregious bad-faith bargaining cases, the Board may order the employer to reimburse the union’s negotiation costs incurred during the period tainted by the employer’s unlawful conduct.
• Section 10(e) exhaustion: A jurisdictional rule: courts of appeals cannot consider objections not first urged before the Board unless extraordinary circumstances excuse the omission. Exceptions to the ALJ must specify the issues and the grounds under 29 C.F.R. §102.46; boilerplate or bare quotations do not preserve arguments.

Conclusion

The Third Circuit’s decision in NLRB v. PG Publishing reinforces three practical legal rules. First, ALJs and the Board may infer bad-faith bargaining from the totality of an employer’s proposals, especially where, taken together, they would deprive employees of rights they would enjoy even without a contract. Second, an employer cannot lawfully declare impasse where its own bad faith contributed to the stalemate or where the parties have not exhausted meaningful discussions, particularly when the union remains willing to bargain. Third, litigants must meticulously preserve remedy challenges before the Board under §10(e); otherwise, courts will not entertain even substantial objections to Thryv-style make-whole awards or bargaining-expense remedies.

While non-precedential, the opinion aligns with cross-circuit authority and the Board’s totality-of-conduct approach, and it offers clear guidance to practitioners: bargaining strategies that hollow out core statutory protections invite bad-faith findings; unilateral changes premised on an “impasse” achieved through such tactics will not stand; and procedural rigor in Board exceptions is indispensable to later judicial review. In short, substance matters—in bargaining, in timing, and in preserving the record.