NLRB Follows The General Counsel's Lead: Enhanced Remedies May Now Apply To Bad-Faith Bargaining

• Published date: 09 May 2023
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Rachel Ring, Maura Mastrony and Michelle Devlin

In Noah's Ark, the Board combined remedies it can impose on an employer that engaged in repeated unfair labor practices. The decision may predict the expansion of remedies for bad-faith bargaining. The decision follows the trend of increasingly punitive and extraordinary remedies being implemented by the Board.

On April 20, 2023, a three-member panel of the National Labor Relations Board (Board) ruled 2-1 in Noah's Ark Processors LLC, 372 NLRB No. 80 (2023), that a combination of remedies imposed for unfair labor practices by an administrative law judge (ALJ) were not only warranted but did not go far enough.¹ In Noah's Ark, a Nebraska meat processer engaged in protracted bargaining for five years for a successor contract with the UFCW. Since 2019, the parties had litigated union accusations that the employer continuously and repeatedly violated sections 8(a)(1), (3) and (5) of the National Labor Relations Act (NLRA or "the Act") in a multitude of ways.

With the unique fact pattern present in Noah's Ark, the Board took the opportunity to issue a ruling in which it reinforced the remedies ostensibly available to the Board under Section 10(c) of the Act. The Board also described the remedies it considers available when dealing with a recalcitrant party that refuses to comply with or respect the Act.

Noah's Ark reinforces the NLRB's Office of the General Counsel's agenda of getting the Board to impose expanded and more severe remedies for unfair labor practices. Noah's Ark focuses on expanded remedies available for allegedly unlawful behavior in bargaining. The majority opinion asserts that the Board has broad discretion to exercise its remedial authority and that the Board can and should tailor remedies to the "nature, severity, and extent" of the particular violations found. Member Kaplan, while concurring with the decision in part, wrote a pointed dissent disputing the extent of the remedies ordered by the Board and what he considered the majority's overreach in its decision.

Bargaining History and Previous Litigation

For several years, UFCW Local No. 293 filed numerous ULP charges against the employer, alleging bad-faith bargaining that purportedly frustrated any possibility of arriving at agreement. The unfair labor practice charges also included other allegations, such as retaliation against bargaining unit employees for their exercise of Section 7 rights.

The Board previously sought a variety of remedies against the employer in court, including an injunction under Section 10(j), sanctions, and contempt findings.² As a result of the Section 10(j) injunction, the parties briefly resumed bargaining in January 2020. During these bargaining sessions, the employer presented a last, best and final offer, which the...