Employers beware: NLRB instructs on harsh penalties for repeat offenders

In its recently decided 2-1 decision, the National Labor Relations Board (NLRB) discussed additional remedies it may now consider in cases involving employers that have engaged in what the Board considers repeated or obvious disregard for employees’ rights under the National Labor Relations Act (NLRA). The decision is consistent with NLRB General Counsel Jennifer Abruzzo’s agenda seeking expansion of the remedies available under the Act and the Board’s continuing trend to endorse such expanded remedies.

Board finds unlawful conduct

Noah’s Ark Processors was involved in negotiations for a new union contract with the United Food and Commercial Workers. Noah’s Ark’s conduct during negotiations resulted in a federal court order, a contempt finding and penalties for violating the order, and unfair labor practice (ULP) charges.

The charges were discussed before an administrative law judge (ALJ), and on January 27, 2021, the Board affirmed the ALJ’s decision, finding Noah’s Ark had violated the NLRA by bargaining in bad faith, unlawfully declaring an impasse, and implementing a final offer without a valid impasse.

The ALJ concluded that Noah’s Ark bargained in bad faith by looking at the totality of the circumstances, including the employer’s: