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04.24.2023 Legal News

Tales From the NLRB: More Remedies More Often

On April 20, 2023, the National Labor Relations Board (Board) committed itself to imposing more remedies more often when dealing with parties “who have shown a proclivity to violate the National Labor Relations Act (NLRA) or who have engaged in egregious or widespread misconduct.” The case at bar dealt with an employer who was a repeat unfair labor practices (ULPs) offender under the NLRA. While this decision does not specifically change Board law, it does green light the Board’s General Counsel to pursue “full relief” for ULPs more frequently.

The Board’s decision in Noah’s Ark Processors, LLC found that repeat offenders could be subjected to broad extraordinary remedies and described when such remedies will be appropriate. In the Noah’s Ark case, the Board was faced with an employer who had repeatedly violated the NLRA by bargaining in bad faith in making unrealistic and regressive offers at the bargaining table, being held in contempt by the U.S. District Court of Nebraska for violating an injunction order requiring the employer to bargain in good faith, and invalidly declaring an impasse to the negotiations after the Union refused to accept a final offer (which the Union had previously declined the year before). Based on a totality-of-the-circumstances analysis, the Board was unanimous in its determination that the Employer had violated the NLRA and that a broad cease-and-desist order should be issued. While the panel was unanimous on whether a violation occurred, the Members differed on the discussion of extraordinary remedies.

The majority held that given the employer’s history of egregiously violating the Act, the cornucopia of extraordinary remedies should be used to remedy its violations. These remedies include issuing notice and explanation of rights to workers (Notice and Explanation), reading the notice and explanation of rights to workers (Reading), mailing the notice and explanation of rights to the workers (Mailing), requiring supervisors and managers to be present at the reading of the notice and explanation of rights to workers (Presence), requiring a member of the company to sign the notice and explanation of rights to workers (Signing), publishing the notice and explanation of rights in a local newspaper (Publication), extending the posting of such notice beyond 60 days (Posting), visiting the worksite to ensure compliance (Visitation Rights), and reimbursing Union bargaining expenses, including lost earnings to employees for attending bargaining sessions (Reimbursement). The majority stated this was a “non-exhaustive list of potential remedies that the Board will consider when a respondent has engaged in unlawful conduct warranting a broad order.”

The majority wrote this walkthrough of remedies has “value both in promoting consistency and in providing parties with notice of the remedies the Board will consider in future broad order cases.” The majority further noted the goal is “to reaffirm to employees their Section 7[1] rights and to reassure them that the Respondent must respect those rights in the future.” While the majority only applied some of these extraordinary remedies here (namely Notice and Explanation, Reading, Mailing, Presence, Signing, Posting, Visitation, and Reimbursement, in addition to traditional remedies), Republican-appointed Member Kaplan retorted that with the detailed discussion of extraordinary remedies it “seems likely that extraordinary remedies are about to become far less extraordinary.”

Member Kaplan, who dissented from the Board’s decision, concurred that the Company had violated the NLRA on numerous occasions, refused to negotiate in good faith, and was properly subjected to a broad order. However, the Democratic-appointed majority went beyond the issues in this case to opine on different remedies, functionally issuing an advisory opinion by stating “that a broad cease-and-desist order may make other remedies ‘particularly appropriate,’… [and] enumerat[ing] what those ‘particularly’ appropriate remedies are.”

By talking through and describing when such remedies might be applied, the majority, as Member Kaplan noted, “tacitly encourages the General Counsel to seek broad orders more frequently in order to put those remedies in play.” While the majority stated it does “not mean to imply that a broad order is only available in cases involving the same degree of habitual recidivism [as the employer in Noah’s Ark]”, it appears these extraordinary orders are most likely to occur when a broad order is issued. However, Member Kaplan noted how broad orders have become more frequent, with four being issued in the past year. Under the framework in Noah’s Ark, the General Counsel has a road map for prosecuting employers for ULPs and a new array of remedies to seek, as laid out in the case and in a General Counsel memo issued on September 8, 2021.

Employers should be mindful of how they engage with a union as well as with their employees to avoid facing ULP charges and extraordinary remedies. Employers are encouraged to consult with labor attorneys for advice on navigating the NLRA as well as to avoid conduct that might lead to ULP charges or a broad order. Stay tuned for more legal developments from the Biden-era Board.

[1] Section 7 of the Act, 29 USC § 157, provides that “[e]mployees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities ….”