Labor Board Refuses to "Swallow its Whistle"

Date   Apr 28, 2023

This month ushered in the NHL and NBA playoffs. Whether you are in a city which has multiple participants (hello New York, Boston, Miami, and Los Angeles) or none (here’s looking at you Washington and Chicago), there is a prevailing belief that, due to the high stakes involved in the playoffs, referees will “swallow their whistles” and decide against calling fouls or penalties that they otherwise would in the regular season. The National Labor Relations Board (“NLRB” or “Labor Board”) must have missed this memo. In a recent decision in Noah’s Ark Processors, LLC d/b/a WR Reserve, the Labor Board announced that it will grant requests for extraordinary remedies against violating parties who have “shown a proclivity to violate the [National Labor Relations Act] or who have engaged in egregious or widespread misconduct.”

The facts of Noah’s Ark do not need to be rehashed in great detail. There, the employer previously had been found to have bargained in bad faith, unlawfully declared impasse, and implemented a final offer in the absence of a valid impasse. A federal district court issued injunctive relief against the employer for these labor law violations. Subsequently, the union filed additional unfair labor practice charges, claiming that despite court ordered bargaining, the employer continued to engage in bad faith and regressive bargaining. The Labor Board found merit to these allegations, and due to the employer’s status as a “recidivist,” issued remedies that included the following:

  • Explanation of rights (where employees are informed of their rights in a “more comprehensive manner…given the greater severity of the chilling effect” of the misconduct)
  • Mailing the cease and desist notice/explanation of rights to employees and former employees
  • Reading the cease and desist notice/explanation of rights aloud
  • Reading the cease and desist notice/explanation of rights in front of supervisors/managers
  • Signing the notice by an individual who “bears significant responsibility”
  • Publication of the notice in “local publications of broad circulation and local appeal”
  • Extending the 60-day notice posting period
  • Visitation by the Labor Board to ensure that the notice is posted appropriately
  • Awarding back pay and reimbursement of union business expenses

None of these remedies is new, a point made by Member Kaplan, the lone dissenting voice in the decision. What was interesting in this case, however, were the lengths to which the NLRB went to publicize that it will approve of such remedies in bad faith bargaining cases. Such an approach is aligned with the stated goal of the Labor Board’s General Counsel, where she has announced that the agency should issue remedies that go above and beyond the standard cease and desist and 60-day notice posting order. According to Member Kaplan, the decision in Noah’s Ark essentially is “encouraging” the General Counsel to seek more expansive remedies in unfair labor practice cases.

It is clear that by these remedies, the General Counsel is hoping that making employers “feel shame” will curb bad behavior. From the reading of the notice aloud to bargaining unit employees (or reading the notice by a Labor Board representative in the presence of management) to the signing of the notice by the principal violator to the publication of the notice in newspapers, it seems clear that the Labor Board is hoping that punishments in such an overt manner will make employers think twice about violating their obligations under the Act. Whether that affects conduct remains to be seen.

What is more concerning is the forced onsite visitation by NLRB employees to monitor compliance, as an order allowing the Labor Board entry into the workplace could have serious ramifications. In Noah’s Ark, the Order provided for a one year period in which “the [Labor] Board or any of its duly-authorized representatives” could have access to the premises. And even though “such visitation…shall be narrowly limited to assessing and ensuring” compliance with the Order, as Member Kaplan stated, it remains an “unnecessary intrusion on property owners’ rights.” Further, as Member Kaplan notes, the language of the majority opinion suggests a potentially broader scope for this remedy, which could include seeking additional evidence of unfair labor practice charges or speaking independently with employees. Such activities could amount to investigation of potential violations without an unfair labor practice charge, which exceeds the Board’s statutory powers. Regardless of how narrowly a Board order is worded, employers may find it hard to believe that if presented with an opportunity to do so, the NLRB would not act on it.

The Bottom Line

Time will tell whether employer practices are impacted by the extraordinary remedies sought by the General Counsel and endorsed by Labor Board. Of course, the avoidance of unfair labor practices, either generally or in the bargaining sense, is a worthy goal. In the bargaining context, employers are encouraged to take detailed notes at all bargaining sessions. The determination of whether an employer engaged in bad faith bargaining always will be subjective; notwithstanding, contemporaneous records, along with credible testimony, could be the difference between a conclusion that an employer has been engaged in “hard bargaining” (which is not a violation of the Act) and a Board order potentially allowing unsupervised visits by NLRB agents.

If you have any questions regarding the Board’s decision or other collective bargaining issues, please contact the author of this Alert, Rob Entin, partner in our Chicago office, at, or the FordHarrison attorney with whom you usually work.