Blogs

The creativity of the Democratic-led National Labor Relations Board (NLRB) is growing. In Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (April 20, 2023), the Board’s creativity was exhibited by detailing potential remedies it will consider in cases involving employers that have shown repeated or egregious disregard for employees’ rights under the National Labor Relations Act (NLRA).

In Noah's Ark, the employer engaged in several unfair labor practices (ULP) during contract negotiations with the union, including making "deeply regressive" proposals, prematurely declaring an impasse, and negotiating in bad faith. An administrative law judge (ALJ) found that the employer's conduct violated the NLRA and ordered a number of remedies, including reinstatement of employees who had been unlawfully terminated, back pay, and posting of a notice to employees explaining their rights.

The NLRB agreed with the ALJ's findings and remedies but went one step further by imposing additional remedies. The Board ordered the employer to:

                        ·           Provide employees a comprehensive Explanation of Rights detailing their rights.

                        ·           Read and distribute (English and Spanish versions) the Notice/Explanation of Rights to employees.

                        ·           Mail the Notice/Explanation of Rights to employees’ homes.

                        ·           Require a person of significant involvement in the employer’s bad acts, the CEO, to sign the Notice.

                        ·           Extend the posting time period (one year) for the Notice/Explanation of Rights.

                        ·           Permit Board representatives to inspect the company's bulletin boards and records regarding compliance with the relevant Board Order.

                        ·           Reimburse the union for bargaining expenses, such as making employees whole for their lost wages from attending bargaining sessions.

The reasoning behind the Board’s additional remedies was twofold: as an appropriate response to the totality of the employers’ wrongful misconduct and to encourage compliance with the NLRA’s goal of protecting employees’ Section 7 rights. The Board further emphasized that in other cases, different combinations of remedies or additional remedies may be appropriate under the particular circumstances.

While the Board’s remedies traditionally have been limited to “make-whole” relief, such as back pay and reinstatement of employees, the Board is seeking to expand remedies where an employer has a history of ULPs, targeting repeat or serious misconduct, and using the rationale that it has broad discretion with regard to remedial authority. That discretion includes the ability to create and tailor remedies to fit the violations.

Advice for employers: The Noah's Ark decision is a clear indication that the NLRB is willing to use its discretion to impose creative and far-reaching remedies in cases of ULPs. Employers should take heed of this decision and proceed with caution when engaging in any activity that could be construed as unlawful. The dissenting Board member commented that what were once extraordinary remedies are about to “become far less extraordinary.” Accordingly, employers should proceed with more caution when engaging in bargaining or responding to workers’ actions that could be interpreted as protected concerted activity (Section 7 rights). The Noah’s Ark decision makes clear that the Board and its general counsel are dedicated to more creative remedies than any past administration.