Management Memo

On Thursday, April 20, 2023, the National Labor Relations Board (“NLRB” or “Board”) released a decision in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80, in which it laid out sweeping remedies the Board will consider imposing in cases involving so-called “repeat offenders” of the National Labor Relations Act (“NLRA” or the “Act”).

In Noah’s Ark, the Board affirmed findings made by an NLRB Administrative Law Judge (“ALJ”) that the employer bargained in bad faith with the union representing its employees, implemented its final offer without achieving overall impasse, engaged in regressive bargaining and other impermissible bargaining tactics, and threatened and interrogated employees because of their protected activity, all of which came on the heels of the employer defying a previous federal court injunction related to earlier bad faith bargaining and other unfair labor practice allegations. The Board not only upheld the make-whole remedies ordered by the ALJ, but also announced “the potential remedies the Board will consider in cases involving [employers] who have shown a proclivity to violate the Act or who have engaged in egregious or widespread misconduct.” In doing so, the Board ordered remedies beyond those imposed by the ALJ, noting that the Board “[has] broad discretion to exercise [its] remedial authority under Section 10(c) of the Act even when no party has taken issue with the judge’s recommended remedies or requested additional forms of relief.”

Approximately a month after the Board issued McLaren Macomb, 372 NLRB No. 58, which left employers scrambling to decipher its unclear impact on both unionized and non-unionized workplaces, Jennifer Abruzzo, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”) released guidance outlining her views on the decision’s implications and meaning in Memorandum GC 23-05 on March 22, 2023. The GC’s Memo contains an FAQ in response to inquiries the NLRB has received about the McLaren Macomb decision and outlines Abruzzo’s plans for enforcement of the decision.

The General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”) is urging the Board to upend nearly 60 years of precedent and adopt a new legal standard that significantly limits employers’ ability to hire permanent replacements for striking employees. Under current law, employers have a general right to permanently replace workers who go on strike to obtain economic concessions from their employer, so long as an employer does not hire the replacements for an “independent unlawful purpose.” In an Advice Memorandum released on December 30, 2022, the GC confirmed her intention to push for the Board to impose a more restrictive standard that would require employers to show specific business reasons justifying the decision to replace strikers.

On December 16, 2022, the National Labor Relations Board (”Board”) issued its decision in Bexar County II, which restricts the right of property owners to deny off-duty contract workers access to the property for the purpose of engaging in activities protected under Section 7 of the National Labor Relations Act (“Act”). In line with the current Board’s efforts to undo Trump-era decisions and reinterpret the Act to dramatically expand employees’ Section 7 rights and weaken property owners’ rights to control their property, the Board overturned its own precedent on contract workers’ off-duty access and reinstated its standard first established in the 2011 decision in New York New York Hotel & Casino . The Board’s decision in Bexar County II makes clear that it prioritizes contract workers’ access to a third-party’s property for Section 7 activities over the property owner’s own interests in their property. [1]

On December 13, 2022, the National Labor Relations Board (“Board” or “NLRB”) issued a decision that greatly broadens the remedies available for violations of the National Labor Relations Act (“Act”). Prior to this decision, the Board’s “make whole” remedies for more than 80 years have generally included only backpay, reasonable search-for-work expenses, and interim employment expenses.