NLRB Floods Noah's Ark Decision with Additional Remedies for Egregious Violators

4 min

On April 20, 2023, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in Noah's Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) in which it announced a non-exhaustive list of remedies available in cases involving egregious or repeated violations of federal labor law. The case is notable for two reasons. First, the remedies prescribed by the Board went above and beyond the remedies awarded by an administrative law judge at the NLRB and the remedies imposed by a federal court judge who decided a related case in federal court. Second, the NLRB's decision undertook a detailed explanation of why certain remedies should be ordered in combination with other remedies to achieve the Board's desired effect of protecting employees' Section 7 rights.


Employer Noah's Ark Processors, LLC ("Noah's Ark") and United Food and Commercial Workers Local Union No. 293 (the "Union") engaged in collective bargaining beginning in 2018. After more than 10 months of negotiations and Noah's Ark's declaration of impasse, the union filed an unfair labor practice charge ("ULP") at the NLRB alleging that Noah's Ark failed to bargain in good faith. While the ULP was making its way through the administrative process, the NLRB filed for an injunction in federal court which resulted in a decision by the court that Noah's Ark continued refusal to bargain in good faith required injunctive relief, contempt findings, and sanctions.

After attempts at continued bargaining resulted in another declaration of impasse and an attempt by Noah's Ark to implement its last, best, and final offer, the Union again filed a ULP at the NLRB. After review, an administrative law judge found that Noah's Ark committed numerous unfair labor practices, including bargaining in bad faith by only giving proposals which were "deeply regressive," showing an unwillingness to wait for and consider the union's proposals, and continuing to demand an unreasonable discretionary wage proposal, as well as unlawfully declaring an impasse. To remedy and deter Noah's Ark's unfair labor practices, the administrative law judge recommended imposing the following remedy on Noah's Ark: (1) bargain with the union upon request, (2) embody any understanding with the union in a signed agreement, (3) hold a meeting for the widest possible attendance by employees and read aloud a notice of the employees' rights under the National Labor Relations Act ("NLRA"), and (4) compensate the union for bargaining expenses until good faith negotiations begin.


Upon review of the ALJ's decision and the record, the Board concluded that the remedies recommended by the administrative law judge and ordered by the federal court were appropriate, but that additional remedies were also warranted. Notably, no party had requested additional remedies or challenged the remedies recommended by the judge. The Board held that "commensurate remedies" must be ordered where a respondent's actions show a "proclivity to violate" the NLRA, or where "widespread or egregious misconduct demonstrates a general disregard" for employees' protected rights. The Board then enumerated a non-exhaustive list of remedies available, including:

  • Providing employees with an explanation of their labor law rights ("Notice/Explanation of Rights");
  • Reading the "Notice/Explanation of Rights" to employees, potentially by the supervisors or management officials who were directly involved in the unfair labor practices;
  • Mailing the Notice/Explanation of Rights to each employee's home;
  • Signing the Notice/Explanation of Rights by a person who bears "significant responsibility" in the respondent's organization;
  • Publishing the Notice/Explanation of Rights in local media;
  • Posting the Notice/Explanation of Rights for an extended period of time beyond the Board's standard 60 days;
  • Permitting "visitation" by Board agents to inspect bulletin boards and records to ensure compliance.

Having reviewed in detail the purpose of each of these remedies, the Board then imposed all of these additional remedies on Noah's Ark to remedy and deter what it viewed to be egregious misconduct by the employer. The Board's decision was not unanimous, however, as one member dissented and expressed concern that the majority's use of the Noah's Ark decision was effectively an "advisory opinion" to the General Counsel.

Employer Takeaways

This decision is in line with the publicly stated prerogatives of the current NLRB General Counsel, who has previously instructed NLRB Regional Directors bringing cases for unfair labor practices to seek "the full panoply of remedies available" so that victims are made whole. This decision is also a reminder to employers litigating before the NLRB of the importance of raising "particularized exceptions" not only to the merits of an ALJ's decision but also to the recommended remedies, since a failure to raise exceptions with particularity can amount to a waiver of the right to challenge the remedies.

It remains to be seen whether this decision will make it more difficult for employers to resolve unfair labor practice charges on reasonable terms before the NLRB, but the Board's willingness to go above and beyond remedies imposed by the administrative law judge that were not challenged by the parties portends a forum that is increasingly hostile to employers. Please contact the authors of this article or any other attorney in Venable's Labor and Employment team should you they have any questions on this or any related topic.

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