By Robert G. Brody and Mark J. Taglia
April 24, 2023
Last week, the NLRB’s decision in Noah’s Ark Processors, LLC (“Noah”) held that repeat offenders of the NLRA could be subject to extraordinary remedies. The Board went on to detail when such remedies were appropriate, and outlined the types of actions violators could expect to be subject to if they have undertaken egregious misconduct or “have shown a proclivity to violate the act [NLRA].” These enumerated actions included the posting of employee notices, permitting NLRB agents access to perform inspections at subject facilities and the review of company records, confirming union’s rights to get reimbursed for bargaining expenses, among others.
It is important to note that these remedies are not new. The Board stated that itemizing the available remedies was intended to ensure they are used more consistently in cases involving repeat violators, essentially green lighting the NLRB’s General Counsel, Jennifer Abruzzo, to seek “full relief” for ULP violations on a more frequent and consistent basis.
The NLRB’s chairwoman, Lauren McFerran, stated the NLRB’s, “aim is to ensure that in every case involving repeated or serious misconduct, the Board will consistently consider and implement a full range of potential remedies, so that our actions will make victims of unfair labor practices whole, while ensuring that employees not only understand their rights under the act but also feel free to exercise them going forward.”
In deciding Noah, the Board unanimously determined Noah had violated the NLRA. However, while the Board was unanimous in its opinion that the NLRA was violated, its Members differed on the appropriateness on the ensuing discussion relating to extraordinary remedies.
The Board’s majority wrote that providing a detailed summary of available 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 Board continued that its objective was “to reaffirm to employees their Section 7[1] rights and to reassure them that the Respondent must respect those rights in the future.”
The lone dissenting Member of the Board, Republican appointed Marvin Kaplan, dissented in part due to his belief the opinion being issued was intended to serve as an “advisory opinion” to give prosecutors a roadmap to seek greater penalties, more often. Kaplan went on to say of the opinion, “My colleagues clearly believe that it is appropriate to provide litigation advice to the General Counsel. I do not.”
Whether you think it is appropriate for the Board to provide a roadmap for prosecutors to follow when seeking penalties against repeat and/or serious offenders, the majority of the Board clearly does. We should expect the Board’s renewed commitment to imposing more remedies, more often in its dealings with those “who have shown a proclivity to violate the National Labor Relations Act or who have engaged in egregious or widespread misconduct” to continue. Accordingly, business owners should be keenly aware of the heightened scrutiny their company’s bad acts will face for at least the next two years under the Biden administration’s NLRB. To quote Kaplan, it “seems likely that extraordinary remedies are about to become far less extraordinary.”
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
