NLRB Announces Willingness to Impose Extraordinary Remedies for Repeat Offenders

On March 20, 2023, the National Labor Relations Board issued a decision in Noah's Ark Processors, LLC, d/b/a WR Reserve, 372 NLRB No. 80 (2023). The Board's decision follows a memorandum issued by National Labor Relations Board's General Counsel and chief prosecutor, Jennifer Abruzzo, urging regional offices to aggressively pursue the "full panoply" of remedies available for unfair labor practices committed by employers. As the Board's decision in Noah's Ark Processors, LLC indicates, the General Counsel's push now seems to be paying off.

The employer Noah's Ark Processors, LLC committed several unfair labor practices by bargaining in bad faith and by implementing a final offer without bargaining to impasse first. Then, months later, the Board found that the employer continued to bargain in bad faith by offering regressive proposals, refusing to consider even minor changes or the union's proposals, adhering to its initial positions, and again implementing its final offer without a lawful impasse. Based on this record, the Board determined that the employer demonstrated a "proclivity to violate the Act" and "engaged in egregious … widespread misconduct." The Board then took the opportunity to explain the potential remedies it will consider in such cases.

Cease-and-Desist Orders and Further Remedies

For starters, such misconduct justifies the imposition of broad cease-and-desist orders. These orders target not only the specific unfair labor practices at issue for which the General Counsel seeks a remedy, they also direct employers not to interfere with the employees' exercise of their protected rights "in any other manner."

And in cases where the Board determines a broad cease-and-desist order is warranted, it will also consider whether to impose additional, extraordinary remedies. As the Board majority explained, those Board-ordered remedies could include:

• Mailing a notice and detailed explanation of rights to all employees that "ensures that employees are fully informed of their rights, mitigates the chilling effect of past unlawful conduct, and may help prevent further unlawful conduct."
• Extending the posting period from 60 days (the typical case) to a year, and allowing Board agents to visit and inspect the employer's property during that time to ensure compliance with the posting requirements.
• Having high-ranking corporate officials, including CEOs, sign – and read to all employees at as many sessions necessary to reach everyone, with NLRB agents present – the Board-ordered notice to employees, and provide employees a detailed explanation of the rights they have to engage in concerted activity protected under the National Labor Relations Act.
• Ordering the employer to publish the notice and explanation of rights in "local publications of broad circulations and local appeal."
• Issuing make-whole economic remedies, including but not limited to compensating employees for lost earnings and other benefits, with interest; paying employees for lost earnings associated with attending bargaining sessions; covering any tax liability that stems from paying employee a lump-sum backpay award; and reimbursing the union for costs and expenses incurred in collective bargaining.

The Board's announcement of these severe penalties for employers is part of its effort "to bring greater consistency to the Board's exercise of its remedial discretion," and to ensure that "the full range of potential remedies" is "consistently considered and implemented." But as the lone Republican Member of the Board, Marvin Kaplan, stated in his dissent, the majority's "long discourse about remedies in general" amounts to little more than dicta. As Member Kaplan observed, the Board has plenary authority to order extraordinary remedies in any give case. If, therefore, "a future Board decide[s] to 'stop short'" of issuing extraordinary remedies, "it will have the authority to do so, unconstrained by anything in the majority's [decision]." The majority's "remedial discourse" thus "serves no real purpose" other than to "unmistakably … encourag[e] [the General Counsel] to seek [extraordinary remedies]" in future cases.

What Happens Next?

Time will tell whether the facts of Noah's Ark Processors, LLC set the floor in such cases or whether lesser forms of misconduct will similarly trigger extraordinary remedies. Also unknown is whether the General Counsel will pursue similar remedies against unions that likewise demonstrate a proclivity for violating the Act. But one thing is reasonably certain: the General Counsel is likely to quickly act on the decision. Employers should thus expect that the General Counsel will ask the Board to impose broad cease-and-desist orders more often, and to impose extraordinary remedies in a broader array of cases.

This continues to be an evolving area of law. DWT will continue to monitor these and other labor law developments. Please reach out to the authors if you have questions about how the Board's decision may impact your organization.