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May 20

"Unpacking Noah's Ark: Lessons in Unfair Labor Practices and Good-Faith Negotiations"

ABSTRACT: In Noah’s Ark Processors, LLC, the NLRB ruled that the company engaged in unfair labor practices by failing to negotiate in good faith, refusing to compromise, withholding relevant bargaining information, and prematurely declaring an impasse during negotiations with the United Food and Commercial Workers’ Union. The NLRB also found that the company had unlawfully threatened and terminated ten workers for participating in an unauthorized work stoppage. As a result, the NLRB called for severe remedies, which were upheld by the Eighth Circuit Court of Appeals.

The dispute in Noah’s Ark Processors arose following the expiration of the previous collective-bargaining agreement between the company and the UFCW. Negotiations ensued, but the company’s representative, an administrative assistant lacking decision-making authority, hindered progress. Consequently, the Union filed charges with the NLRB, prompting a court-issued injunction compelling Noah’s Ark to resume negotiations.

However, throughout the resumption of negotiations, Noah’s Ark repeatedly presented regressive offers that deviated from previous agreements and sought to roll back established benefits for employees. These offers included proposals to eliminate binding arbitration for labor grievances, subcontract existing operations, cut vacation days, and limit holiday pay. Despite minor concessions on certain issues, the company remained steadfast in its refusal to compromise on critical matters, such as working hours and arbitration of grievances. After only two months of negotiations, Noah’s Ark declared another impasse and implemented their proposals.

The Union reacted by filing another complaint. An administrative-law judge found that Noah’s Ark's had failed to negotiate in good faith and prematurely declared an impasse. In addition to issuing another bargaining order to keep negotiating with the union, the ALJ ordered Noah’s Ark to provide backpay to the ten terminated employees, reimburse the union for bargaining expenses, and required its CEO to read a remedial notice at an all-employee meeting. The Board adopted the ALJ’s remedies and imposed additional remedies including ordering Noah’s Ark to mail a copy of the remedial notice to every employee, post the notice in its plant, and allow NLRB representatives to inspect the facility for up to a year.

On appeal, the Eighth Circuit rejected the company’s argument that the Board’s extraordinary remedies requiring reimbursement of bargaining expenses and reading of a remedial notice by the CEO were unjustified. Concluding that “the remedies in question are not beyond those that have been imposed in other extreme cases” – and additionally noting that Noah’s Ark had failed to properly preserve this issue for appeal by raising it before the Board – the Court granted enforcement of the Board’s order in its entirety.

The NLRB’s General Counsel has urged its regional offices to pursue the “full panoply” of remedies for employer unfair labor practices, and the Noah’s Ark case makes it clear that especially in cases involving egregious facts, that approach will be followed. While the NLRB and Eighth Circuit decisions break no new ground, they serve as a reminder that the duty to bargain in good faith lies at the core of the National Labor Relations Act, and that bad-faith, “take it or leave it” collective bargaining will not pass legal muster.