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The ELA is proud to welcome our newest member firm: LOGOS  in Iceland!


NLRB ‘Will Not Stop Short’ in Imposing Remedies for Failure to Bargain

Submitted by Firm:
Steptoe & Johnson PLLC - West Virginia
Firm Contacts:
Bryan Cokeley, Susan Deniker

On April 20, 2023, the National Labor Relations Board (the Board) issued its decision in Noah’s Ark Processors, LLC (Noah’s Ark), holding that Noah’s Ark, a Nebraska meat processor, violated the National Labor Relations Act (the Act) when it failed to bargain in good faith with the bargaining unit’s union.

The parties in the case have been engaged in negotiations since early 2018. The first round of negotiations took place between 2018 and 2019 and resulted in an injunction, contempt findings, sanctions, and unfair labor practice charges. Even though the court ordered a number of remedies, including a purge plan, the second and third rounds of negotiations were equally unsuccessful. As a result, the court found that Noah’s Ark bargained in bad faith because of its “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.” On that basis, the administrative law judge concluded that Noah’s Ark had not reached a valid overall impasse and thus violated the Act by implementing its proposals. The Board agreed.

In addition to the bargaining schedule, progress report, and bilingual requirement, Noah’s Ark was ordered to compensate the union for all bargaining expenses from November 11, 2019, through the date in the future when good-faith negotiations begin and to compensate the employees for any other direct or foreseeable pecuniary harms incurred. Further, there was a finding of Noah’s Ark’s “egregious and pervasive instances of bad-faith bargaining that impacts the entire unit,” and the Board ordered Noah’s Ark to provide the following remedies: (1) an explanation-of-rights document; (2) reading of the notice and explanation of rights by Noah’s Ark’s CEO or a Board agent in the CEO’s presence and distribution of the notice and explanation of rights at the meeting by a Board agent; (3) signing of the notice and explanation of rights by the CEO; (4) mailing of the notice and explanation of rights; (5) extended posting periods for the notice and explanation of rights; and (6) visitation to ensure compliance with the extended posting period. Copies of the notice to employees and explanation of rights were attached as appendixes to the order. The Board reasoned that these remedies are necessary “to inform employees of their rights, restore their confidence in those rights after [Noah’s Ark]’s violations, and undo some of the chill to the free exercise of those rights that [Noah’s Ark] has caused.”

In its decision, the Board reiterated that in every case involving the type of repeated or serious misconduct, the Board “will consider a full range of established, potential remedies, and will not inadvertently stop short, at the expense of protecting both employees’ exercise of Section 7 rights and their willingness to exercise those rights.” While the Board indicated that not all remedies will be ordered in each specific case, remedies such as those imposed on Noah’s Ark will be warranted in cases where an employer “is shown to have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees’ fundamental statutory rights.” In the near future, it is reasonable to expect that more of these remedies will be imposed on employers who fail to bargain with unions in good faith.

For assistance or questions about this legal insight, please contact the author or any member of the Steptoe & Johnson Labor & Employment Team.