Employers Beware: NLRB Instructs on Harsh Penalties for Repeat Offenders

In its recently decided 2-1 decision, the National Labor Relations Board (NLRB) discussed additional remedies it may now consider in cases involving employers that have engaged in what the Board considers repeated or obvious disregard for employees’ rights under the National Labor Relations Act (NLRA). The decision is consistent with NLRB General Counsel Jennifer Abruzzo’s agenda seeking expansion of the remedies available under the Act and the Board’s continuing trend to endorse such expanded remedies.

Board Finds Unlawful Conduct

Noah’s Ark Processors was involved in negotiations for a new union contract with the United Food and Commercial Workers. Noah’s Ark’s conduct during negotiations resulted in a federal court order, a contempt finding and penalties for violating the order, and unfair labor practice (ULP) charges.

The charges were discussed before an administrative law judge (ALJ), and on January 27, 2021, the Board affirmed the ALJ’s decision, finding Noah’s Ark had violated the NLRA by bargaining in bad faith, unlawfully declaring an impasse, and implementing a final offer without a valid impasse.

The ALJ concluded that Noah’s Ark bargained in bad faith by looking at the totality of the circumstances, including the employer’s:

• Deeply regressive proposals;
• Unwillingness to consider even minor changes;
• General unwillingness to consider most other union proposals;
• Adherence to most of its own initial proposals without modification;
• Unwillingness to wait for the union to make all of its proposals; and
• Discretionary wage proposal.

The Board added that Noah’s Ark’s refusal to include an arbitration provision, while demanding a no-strike provision and a broad management rights provision, also suggested bad faith.

Board Orders and Explains Expanded Remedies

The Board agreed with the remedies ordered by the ALJ, which included:

• A broad cease and desist order, including provisions directed at specific violations of the NLRA, and a catch-all provision directing the employer to refrain from “in any manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act”;
• A bargaining order requiring the employer, upon request, to hold bargaining sessions for a minimum of 24 hours per month, at least six hours per bargaining session, or any other schedule the union agrees on and requiring the employer to submit written bargaining progress reports to the regional office, with a copy to the union;
• Reimbursing employees for any lost earnings or benefits, with interest, resulting from the employer’s final offer, along with other direct and foreseeable monetary harm (which could include out-of-pocket expenses incurred because of increases in premiums, copays, deductibles, etc., under insurance plans, credit card debt, late fees, or penalties caused by their inability to pay bills or other costs incurred to make ends meet); and
• Reimbursing the union for all bargaining expenses, including, but not limited to, any lost wages the union paid to employee bargaining committee members for bargaining during working hours.

Noting its broad authority under the Act, the Board concluded that remedies beyond those ordered by the ALJ were also appropriate in this case. It presented a list of potential remedies it will consider when an employer engages in unlawful conduct warranting a broad order.

The Board’s purpose was to bring greater consistency to how it grants remedies and to better ensure all appropriate remedies are ordered in any given case. The potential remedies listed, explained, and ordered by the Board include:

• Issuing a broad cease and desist order, directed not only at specific violations of the NLRA, but also at prohibiting employers from “in any manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act”;
• Adding an explanation of rights to the order that informs employees of their rights in a more comprehensive manner;
• Requiring a reading and distribution of the remedial order/notice and any explanation of rights to employees, including potentially requiring supervisors or officials involved in the violations to participate in or be present for the reading and/or allowing a union agent to be present during the reading;
• Mailing the notice and any explanation of rights to employees’ homes;
• Requiring a person who bears significant responsibility in the employer’s organization to sign the notice;
• Publication of the notice in local publications of broad circulation and local appeal;
• Requiring that the notice/explanation be posted for an extended period of time;
• Permitting Board representatives to visit the premises and inspect the employer’s bulletin boards and records to ensure it’s complying with the order; and
• Reimbursing the union for its expenses, including paying employees any wages they lost attending bargaining sessions.

Board Member Marvin Kaplan criticized the majority for using the decision to recommend extraordinary remedies Abruzzo might seek in future cases and even encouraging her to seek them, disagreeing with NLRB Chair Lauren McFerran’s and Board Member David Prouty’s majority opinion. Noah’s Ark Processors, LLC D/B/A WR Reserve, 372 NLRB No. 80 (2023).

Bottom Line

Abruzzo and the Board have made it very clear that expanding the remedies available to unions and employees is a major objective. This decision leaves no doubt, so you should consider it a sign of the times for the immediate future, demonstrating Abruzzo’s and the Board’s commitment to aggressive enforcement of the NLRA.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.