Employers continue to see increased labour activity and NLRB remedies

At a glance

• On 7 April 2023, the National Labour Relations Board (NLRB) released its filing data for the first six months of Fiscal Year 2023 (1 October – 31 March).
• Unfair labour practices charge filings increased by 16% – from 8,275 to 9,592 – while union representation petitions were up 14% over the same period last year.
• This increase in filings builds on last year’s surge in NLRB activity.

This trend could continue in the second half of FY 2023. The NLRB continues to make changes in the law to favour unions and pursue additional remedies. On 20 April 2023, in Noah’s Ark Processors, LLC d/b/a WR Reserve, the NLRB concluded that additional remedies were appropriate in cases involving respondents “who have shown a proclivity to violate the Act or who have engaged in egregious widespread misconduct.”

In Noah’s Ark, the Board affirmed the Administrative Law Judge’s decision that the employer bargained in bad faith with the union and determined that additional remedies were warranted based on the employer’s previous actions in violation of the Act and in contempt of a district court injunction ordering it to bargain in good faith. In addition to traditional remedies and those imposed by the Judge, including compensating the union for all bargaining expenses and a reading of the notice to employees by the CEO or a Board agent in the CEO’s presence, the Board ordered additional remedies, including: the addition of an Explanation of Rights to the remedial order, a bargaining schedule with written progress reports, reimbursement of the union’s bargaining expenses and earnings lost by individual employees while attending bargaining sessions, compensation to employees for any loss of earnings and other benefits suffered as a result of the unlawful changes and conditions of employment, and various notice and posting requirements.

In addition, the Board took the opportunity to outline a non-exhaustive list of potential remedies it will consider in cases involving repeated or serious misconduct “to bring greater consistency to the Board’s exercise of its remedial discretion, and to better ensure that all appropriate remedies are ordered in any given case.” These include:  

• Providing employees with an Explanation of Rights under the National Labour Relations Act (NLRA);
• Mailing the notice / Explanation of Rights to employees and former employees;
• Reading the notice / Explanation of Rights to employees;
• Distributing the notice / Explanation of Rights to employees at the meeting before the reading;
• Making supervisors or managers be present at the notice / Explanation of Rights reading;
• Requiring union and employer respondents, including a person who bears significant responsibility in the respondent’s organisation, to sign the notice/ Explanation of Rights;
• Publishing the notice and any Explanation-of-Rights document in local publications of broad circulation and local appeal;
• Extending the posting of the notice and Explanation of Rights beyond the standard notice posting period of 60 days;
• Allowing for visitation by the Board to inspect records and to take statements from officers and employees (and others) for the purpose of determining or securing compliance with the Board’s orders; and
• Reimbursement of Union’s bargaining expenses, including making whole any employees who lost wages by attending bargaining sessions.

The decision signals the NLRB’s focus on considering expanded remedies in unfair labour practice cases.