NLRB Will Target Repeat Offenders With Stronger Sanctions

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An April 20, 2023 decision by the National Labor Relations Board (“NLRB” or the “Board”) detailed potential remedies the Board will consider in cases involving employers or unions that have demonstrated repeated or egregious disregard for employee rights under the National Labor Relations Act (“NLRA”). Specifically, where the Board finds unfair labor practices would justify a “broad” cease-and-desist order – rather than a standard cease-and-desist order – it will consider a non-exhaustive list of potential remedies. A broad cease-and-desist order is often ordered where a respondent (who can be either an employer or union, but more likely the first) (1) has shown a proclivity to violate the NLRA, or (2) has engaged in “egregious or widespread” misconduct.

In Noah’s Ark Processors d/b/a WR Reserve, the Board discussed this list of potential remedies where a broad cease-and-desist order is required:

  • Explanation of Rights: The explanation will be added to the remedial order and informs employees of their rights in a more detailed manner than set forth in the customary Notice to Employees.
  • Reading the Notice to Employees and Explanation of Rights: Employees are gathered and the Notice to Employees and Explanation of Rights is read to them. Additionally, the Board may require supervisors or high-ranking officials involved in the unlawful conduct to perform the reading or, alternatively, be present for the reading by a NLRB agent. Lastly, in cases where a union is the charging party or represents the employees at the facility, the Board will consider a remedial provision permitting a union agent to attend this read.
  • Mailing the Notice and Explanation of Rights to Employees: This potential remedy allows the Board to order a respondent to mail the Notice and/or Explanation of Rights to current and former employees who may have been exposed to the respondent’s unlawful actions.
  • Notice Signing: In broad order cases, the Board may order the Notice to Employees to be signed by a representative who bears significant responsibility in the respondent’s organization. The Board reasoned that such a remedy will be appropriate where the individual ordered to sign either committed the unfair labor practices at issue or is viewed by the employees as the face of the conduct underlying the violations.
  • Publication of Notice and/or Explanation of Rights: Where many employees – current and former – are impacted by the unfair labor practices at issue, the Board will consider requiring the respondent to publish the Notice and/or Explanation of Rights in a “local publication of broad circulation and local appeal.” The Board stated that such a remedy may be appropriate where the unfair labor practices occurred over a lengthy period and the respondent no longer has current mailing information for employees impacted by the unlawful conduct.
  • Extended Notice Posting Period: The standard Notice posting period is 60 days. Where a broad cease-and-desist order is issued, however, the Board has issued posting periods as long as three years. The Board noted that the length of time for the extended posting will be determined on a case-by-case basis.
  • Board Agent Visitation to Facility: The Board will consider a narrow visitation order allowing a Board agent to visit a respondent’s facility to ensure the Notice and/or Explanation of Rights is posted in accordance with a Board order, allow the Board to inspect documents, and to take statements from respondent officers and employees regarding compliance with the Board order. The period of such visitation orders will likely track the length of any extending Notice posting period.

In this case, the employer had previously been subjected to a federal court injunction, contempt findings, sanctions, and unfair labor practices related to findings that it had bargained in bad faith with the union representing its employees and prematurely declared an impasse in bargaining. A third round of bargaining ended in January 2020 when the employer again declared an impasse and implemented its last, best and final offer.

The Board agreed with the administrative law judge that the employer bargained in bad faith and prematurely declared an impasse, in violation of Section 8(a)(5) of the NLRA. The Board issued a broad cease-and-desist order, which included making whole employees for any loss of earnings or benefits caused by the employer’s unilateral changes following its declaration of impasse, and reimbursing the union for its bargaining expenses. The Board also determined that most of the additional remedies discussed above were appropriate in light of the employer’s misconduct.

The lone Republican Board member, Marvin Kaplan, dissented in part. While he agreed that the employer had violated the NLRA and that some of the remedies were required, Member Kaplan characterized the decision as an “advisory opinion.” Member Kaplan expressed his belief that the decision was an attempt by the Board majority to nudge the NLRB General Counsel to “implicitly but unmistakably…encourag[e] her to seek [extraordinary remedies].”

Employer Takeaways. This decision further demonstrates this Board and General Counsel’s desire to provide for additional and stronger remedies against employers that are found to have violated the NLRA. The decision comes just months after the Board’s decision in Thryv, Inc. (which we wrote about here) finding that employees will be entitled to consequential damages stemming from unlawful conduct as part of any make-whole order.

It remains to be seen whether such extraordinary remedies will be reserved for those employers – like the one in this case – that commit widespread unfair labor practices over extended periods of time, or is extended to less pervasive misconduct. As always, we will keep employers updated concerning the development of the Board’s growing use of enhanced remedies.