The National Labor Relations Board (“NLRB”) continues to expand the scope of remedies available when an employer commits an unfair labor practice under the National Labor Relations Act (“NLRA”).  On April 20, 2023, the NLRB issued a decision in Noah’s Ark Processors, LLC d/b/a/ WR Reserve, 372 NLRB No. 80 (2023), finding that a Nebraska meat processor bargained in bad faith and unlawfully implemented its last, best, and final offer in the absence of a valid impasse.

The negotiations at issue in Noah’s Ark began in early 2018, with the first round of negotiations resulting in an injunction, contempt findings, sanctions, and unfair labor practice charges.  In a subsequent round of court-ordered negotiations, the parties made little progress.  In late 2019, the court issued an order finding the employer in contempt and requiring the parties to meet for additional bargaining sessions.  In January 2020, after a third round of bargaining, the employer formally declared impasse and implemented its last, best, and final offer.

The NLRB determined that the employer’s “deeply regressive proposals, unwillingness to consider minor changes proposed by the Union (without explanation), unwillingness to consider most of the Union’s proposals, adherence to most of its initial proposals without modification, unwillingness to wait for the Union to even make all of its proposals, and its discretionary wage proposal” provided ample evidence that the employer had bargained in bad faith.

In cases such as this, when an employer has demonstrated a proclivity to violate the NLRA, or has engaged in egregious or widespread misconduct, the NLRB held that more severe remedies were necessary to effectuate the purposes of the law.  The NLRB, for instance, said it would consider a broad cease-and-desist order and might require the employer to reimburse the union’s bargaining expenses (including making whole any employees who lost wages by attending the bargaining sessions).  The NLRB also strengthened the notice posting that employers are required to post if they have been found to have committed an unfair labor practice to include:

• adding a comprehensive explanation of rights to the notice;

• requiring the reading of the notice and any accompanying explanation of rights to employees by or in the presence of management;

• requiring the employer to mail the notice and explanation of rights to employees’ homes;

• publishing the notice in local publications of broad circulation and local appeal;

• extending the period when the notice and explanation of rights must be posted; and

• permitting NLRB representatives to visit the employer’s worksite to determine and secure compliance with the order.

Noah’s Ark builds on a decision issued late last year that expanded the scope of the NLRB’s “make-whole relief.”  In Thryv, Inc., 372 NLRB No. 22 (2022), the NLRB held that employers who violate the NLRA may be required to compensate employees for all “direct or foreseeable pecuniary harms” caused by the employer’s unlawful conduct.  The new test makes employers liable not only for direct harms like loss of pay and benefits, but also indirect harms that were foreseeable consequences of an unfair labor practice.  Despite obvious parallels, the NLRB explicitly avoided describing these expanded remedies as “consequential damages.”

Expanding remedies for unfair labor practices has long been a goal for Biden-appointed General Counsel Jennifer Abruzzo.  While the NLRB’s new remedial standards will likely face court challenges by employers, the General Counsel will likely explore other ways to expand the NLRB’s remedial authority.