The National Labor Relations Board (NLRB) continues to expand its authority to impose remedies on employers in its decision in Noah’s Ark Processors, LLC, rendering an unusual advisory opinion on the extent of the remedies that can be made available under a “broad order” when there exists a pattern of unlawful labor practices in violation of the National Labor Relations Act (the Act).
The concept of a “broad order” is not new; however, it is uncommon and often questioned given the limits on the NLRB’s authority in section 10(c) of the Act that its remedies “effectuate the policies of the Act.” That has been interpreted to require that the remedy be narrowly tailored to address the specific labor practice at issue. Broad orders that are intended to reach other violations not proven or potential violations not yet occurred are highly disfavored.
In NLRB v. Express Publishing, Inc., the Supreme Court addressed the NLRB’s authority to issue broad cease and desist orders and established a high standard to warrant their use stating:
“To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.”
However, Noah’s Ark may test that standard.
Potential Remedies for Repeated or Egregious Misconduct
Noah’s Ark came before the NLRB twice during its negotiations of a new collective bargaining agreement. The initial action involved repeated transgressions by the company which included bargaining in bad faith, declaring an invalid impasse, and then despite the unlawful declaration of impasse, imposing a final offer. That initial action resulted in a federal court injunction, contempt findings, and unfair labor practices charges. Noah’s Ark allegedly continued the conduct that led to the first finding of negotiating in bad faith and was again brought before the NLRB. The Administrative Law Judge (ALJ) expanded the remedies previously imposed to include compensation to the union for all bargaining expenses and a requirement to read the notice to employees by the company’s CEO or a NLRB agent in the CEO’s presence, both in English and Spanish.
Upon its review of the ALJ’s decision the NLRB found that Noah’s Ark’s actions during negotiations constituted bad faith. Not only was the company’s conduct again found to be unlawful, considering the conduct continuing despite the prior injunction and penalties, the NLRB found that the company “made plain its open hostility toward its responsibilities” under the National Labor Relations Act. This time, the NLRB awarded enhanced remedies to deter Noah’s Ark conduct. The NLRB concluded that it had the authority to augment the ALJ’s remedies even if neither party had objected to or requested additional relief. Accordingly, the NLRB not only adopted those remedies but issued additional remedies to include the previous remedies awarded in the prior action and also expanded the “make whole remedy” to include compensation for the employees for all direct or foreseeable monetary harms they incurred as a result of the company’s unlawful implementation of its last, best, and final offer in the absence of an impasse.
The NLRB continues to advise as to when it will issue a “broad order” and what it will consider as potential remedies in cases where the company “has shown a proclivity to violate the Act or who have engaged in egregious or widespread misconduct.” Per the NLRB, these remedies are intended to:
“Reaffirm to employees their section 7 rights and the reassure them that the employer must respect those rights in the future.”
As the dissent points out, although the NLRB may have authority to augment the remedies imposed by the ALJ, it is unusual and questionable for it to issue an advisory opinion as to what remedies the General Counsel should seek or the ALJ should implement in future cases.
Regardless, the NLRB takes such approach in Noah’s Ark and advises that when the employer’s conduct demonstrates a general disregard for employees’ rights under Section 7, a “broad order” is warranted, which the NLRB further propounded could include – but is not limited to:
Explanation of Rights
The employer will be required to fully inform employees of their rights under Section 7, whether by posting a notice of such rights, reading the notice out loud along with its posting and or mailing it to each employee. The standard remedy is to require only that the notice be posted.
Explanation of Rights Reading
The NRLB will require that the notice be read to employees where the misconduct is so widespread that it is necessary to ensure that the content of the notice is disseminated to all employees. The NLRB may require that a high-level manager read the notice or that a NLRB agent read it in the presence of such individual. The NLRB believes that by mandating this reading, it will “provide a counterweight to the significant chill [the company] created by their unlawful conduct.”
Explanation of Rights Mailing
Although mailing the notice of rights to employees has been limited to instances where the employer had gone out of business, the NLRB now advises that an employer may be required to mail the notice to all employees and former employees as well. (The mention of former employees here is interesting given its recent decision in McLaren Macomb Hospital where the NLRB took issue with certain provisions in severance agreements that would have restricted former employees from engaging with the NLRB.) The NLRB supports this remedy on the basis that it provides employees with the opportunity to privately review the notice and as often as necessary. For employers that can be a considerable expense.
Presence of Supervisors/Managers at the Explanation of Rights Reading
The NLRB finds that where supervisors have been involved in an unfair labor practice it would be appropriate to require their presence at the reading to convey the message to the employees that their supervisors cannot claim ignorance and are also responsible for compliance with the Act.
The NLRB advises that the employer may be required to have a high-level management official sign the notice and explanation of rights to reassure the employees that the employer is committed to compliance with the Act in the future. As the dissent points out in this decision, such requirement may run afoul of the First Amendment as unlawful compelled speech.
Under a broad order, the employer may be required to publish the notice in a local publication of broad circulation and appeal.
Extended Posting of the Notice and Explanation of Rights
The standard for posting a notice of unlawful labor practice is 60 days. The NLRB advises that certain situations where the employer’s misconduct will exist in the employee’s collective memory or where it may be useful to notify new hires of past violations, the employer may be required to post the notice as long as deemed appropriate. In Noah’s Ark, that period was one year.
The NLRB ends with the requirement that remedies under a broad order include future visitation to the employer by a NLRB agent to ensure compliance with the posting of the notice and/or other remedies which will include the right of the NLRB agent to take statements from officers and employees. Of all the remedies addressed by the NLRB in Noah’s Ark, visitation by the NLRB may be most precarious to the validity of a broad order. It is easy to foresee the overstepping into employer conduct not specific to the unlawful labor practice for which the board order was issued to address.
Earlier this year, we reported that the NLRB redefined and expanded its “make whole remedy” when employees suffer tangible consequences due to the employer’s commission of an unfair labor practice. This most recent decision further demonstrates the NLRB’s resolve to provide additional and stronger remedies against employers who are found to violate the Act.
Employers are encouraged to consult with Labor & Employment attorneys for guidance on navigating the National Labor Relations Act as well as to avoid possible conduct that may lead to extraordinary remedies. To discuss, please contact KJK Labor & Employment Partner Maribeth Meluch (MM@kjk.com; 614.427.5747) or any other of our partners in our Labor and Employment practice group for help navigating these issues.