8 Employer Speech in Union Representation Campaigns; Remedies 8 Employer Speech in Union Representation Campaigns; Remedies

8.1 GC Memo 22-04, “The Right to Refrain from Captive Audience and Other Mandatory Meetings" 8.1 GC Memo 22-04, “The Right to Refrain from Captive Audience and Other Mandatory Meetings"

MEMORANDUM GC 22-04 April 7, 2022

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Jennifer A. Abruzzo, General Counsel

SUBJECT: The Right to Refrain from Captive Audience and other Mandatory Meetings

In workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns. As I explain below, those meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech. I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate. Based thereon, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.

Section 7 of the National Labor Relations Act promises employees the right to engage in—and to refrain from engaging in—a wide range of protected activities at work.[1] Section 8(a)(1) of the Act bars employers from interfering with employees’ choice of whether and how to exercise those rights.[2] In carrying out its duty to ensure that employers do not unlawfully impair employee choice in that regard, the Board must keep in mind the basic “inequality of bargaining power” between individual employees and their employers, as well as employees’ economic dependence on their employers.[3]

Over 75 years ago, the Board recognized that the Act protects employees’ right to listen as well as their right to refrain from listening to employer speech concerning the exercise of their Section 7 rights.[4] Forcing employees to listen to such employer speech under threat of discipline—directly leveraging the employees’ dependence on their jobs—plainly chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1). The fact that a threat arises in the context of employer speech does not immunize its unlawful coercive effect. The Supreme Court has made clear that threats fall outside the scope of employers’ statutory and constitutional free-speech protections.[5]

Contrary to the basic principles of labor law outlined above, the Board years ago incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation.[6] As a result, employers commonly use express or implicit threats to force employees into meetings concerning unionization or other statutorily protected activity.[7] And the Board allows employers to make good on those threats by discharging or disciplining employees who assert their right to refrain from listening by failing to attend, or leaving, such mandatory meetings. That license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice and based on a fundamental misunderstanding of employers’ speech rights.

I will urge the Board to correct that anomaly and hold that, in two circumstances, employees will understand their presence and attention to employer speech concerning their exercise of Section 7 rights to be required: when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties. In both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly. Inherent in the employment relationship is the understanding that employees cannot, without consequences, either fail to accede to their employer’s stated requirement (e.g., that they attend a meeting) or abandon their assigned work duties (e.g., by walking away from employer speech directed at them as they work). Finding such mandatory meetings, including those termed as “captive-audience meetings” to be unlawful is therefore necessary to ensure full protection of employees’ statutory labor rights.[8]

Imposing that long-overdue protection of employees’ right to refrain will not impair employers’ statutory or constitutional freedom of expression. As the Supreme Court has recognized, “employers’ attempts to persuade to action with respect to joining or not joining unions are within the First Amendment’s guaranty.”[9] But “[w]hen to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed.”[10]

To ensure that employees are not held captive to employer speech about their union or protected activity, I will propose the Board adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance is truly voluntary.[11] Such an approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of Section 7 activity without unduly infringing on the Section 7 rights of employees to refrain, or not, from listening to such expressions.

In sum, I will ask the Board to reconsider current precedent on mandatory meetings in appropriate cases, including in a brief that will be submitted to the Board shortly. That brief will provide further guidance and argument on this matter. Should you have questions, please contact the Division of Advice.

Thank you, as always, for your dedication to the Act and the mission of the Agency.

/s/

J.A.A

[1] Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. It also provides employees with “the right to refrain from any or all of such activities.” Id.

[2] Section 8(a)(1) makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1).

[3] Section 1, 29 U.S.C. § 151. In addition, the Supreme Court has instructed that employer actions should be evaluated from the perspective of employees who are in a position of “economic dependence” and necessarily pick up threatening implications “that might be more readily dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

[4] Clark Bros. Co., 70 NLRB 802, 805 (1946), enforced, 163 F.2d 373 (2d Cir. 1947).

[5] Section 8(c) of the Act shields from unfair-labor-practice liability only expression of “views, argument, or opinion” that “contains no threat of reprisal or force.” 29 U.S.C. § 158(c). That provision “merely implements the First Amendment” by preserving “an employer’s free speech right to communicate [its] views to [its] employees.” Gissel, 395 U.S. at 617.

[6] Babcock & Wilcox Co., 77 NLRB 577 (1948).

[7] See 2 Sisters Food Group, 357 NLRB 1816, 1825 n.1 (2011) (Member Becker, dissenting in part) (citing study finding “that in 89 percent of [representation election] campaigns surveyed, employers required employees to attend captive audience meetings during work time and that the majority of employees attended at least five such meeting[s] during the course of the campaign”).

[8] That rule would not apply where employers require employees to attend meetings on subjects other than their exercise of Section 7 rights, e.g., a meeting for job training or safety instructions. But it would apply if, for example, the employer uses the meeting to dissuade employees from acting together to improve job training or safety.

[9] Thomas v. Collins, 323 U.S. 516, 537 (1945) (emphasis added).

[10] Id. at 537-38.

[11] The Board has crafted similar safeguards in other areas of labor law. See Johnnie’s Poultry Co., 146 NLRB 770, 774 (1964) (providing safeguards required when employer questions employees about activity protected by Section 7 in order to prepare defense against unfair-labor-practice charges), enforcement denied, 344 F.2d 617 (8th Cir. 1965); Struksnes Construction Co., 165 NLRB 1062, 1062-63 (1967) (same for when employer conducts poll to ascertain whether union enjoys majority employee support); Allegheny Ludlum Corp., 333 NLRB 734, 734 (2001) (same for when employer may lawfully include visual images of employees in campaign presentations), enforced, 301 F.3d 167 (3d Cir. 2002).

8.2 National Labor Relations Board v. Gissel Packing Co. 8.2 National Labor Relations Board v. Gissel Packing Co.

Supreme Court of the United States

395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918, 1969 U.S. LEXIS 3172, SCDB 1968-128

No. 573

1969-06-16

NATIONAL LABOR RELATIONS BOARD v. GISSEL PACKING CO., INC., et al.

No. 573.

Argued March 26, 1969.

Decided June 16, 1969*

*578 Dominick L. Manoli argued the cause for petitioner in No. 573. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Arnold Ordman, and Norton J. Come. Albert Gore argued the cause for petitioner in No. 691. With him on the brief was Joseph M. Jacobs. Edward J. Simerka argued the cause for petitioner in No. 585. With him on the brief was Eugene B. Schwartz.

John E. Jenkins, Jr., argued the cause and filed briefs for Gissel Packing Co., Inc., respondent in Nos. 573 and 691. Lewis P. Hamlin, Jr., argued the cause and filed a brief for General Steel Products, Inc., et al., respondents in No. 573. Fred F. Holroyd argued the cause for Heck’s, Inc., respondent in No. 573. With him on the brief was Charles E. Hurt. Lawrence G. Wallace argued the cause for respondent in No. 585. On the brief were Solicitor General Griswold, Dominick L. Manoli, and Messrs. Strauss, Ordman, and Come.

Briefs of amici curiae in Nos. 573 and 691 were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor & Congress of Industrial Organizations, and by the Associated Builders & Contractors, Inc. Briefs of amici curiae in No. 585 were filed by Lambert H. Miller for the National Association of Manufacturers; by Harry L. Browne for the American Retail Federation; and by Stanley E. Tobin for the Mechanical Specialties Co., Inc.

*579Mr. Chief Justice Warren

delivered the opinion of the Court.

These cases involve the extent of an employer’s duty under the National Labor Relations Act to recognize a union that bases its claim to representative status solely on the possession of union authorization cards, and the steps an employer may take, particularly with regard to the scope and content of statements he may make, in legitimately resisting such card-based recognition. The specific questions facing us here are whether the duty to bargain can arise without a Board election under the Act; whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status; whether a bargaining order is an appropriate and authorized remedy where an employer rejects a card majority while at the same time committing unfair labor practices that tend to undermine the union’s majority and make a fair election an unlikely possibility; and whether certain specific statements made by an employer to his employees constituted such an election-voiding unfair labor practice and thus fell outside the protection of the First Amendment and § 8 (c) of the Act, 49 Stat. 452, as amended, 29 U. S. C. § 158 (c). For reasons given below, we answer each of these questions in the affirmative.

Of the four eases before us, three — Gissel Packing Co., Heck’s Inc., and General Steel Products, Inc. — were consolidated following separate decisions in the Court of Appeals for the Fourth Circuit and brought here by the National Labor Relations Board in No. 573. Food Store Employees Union, Local No. 347, the petitioning Union in Gissel, brought that case here in a separate petition in No. 691. All three cases present the same legal issues *580in similar, uncomplicated factual settings that can be briefly described together. The fourth case, No. 585 (Sinclair Company), brought here from the Court of Appeals for the First Circuit and argued separately, presents many of the same questions and will thus be disposed of in this opinion; but because the validity of some of the Board’s factual findings are under attack on First Amendment grounds, detailed attention must be paid to the factual setting of that case.

Nos. 573 and 691.

In each of the cases from the Fourth Circuit, the course of action followed by the Union and the employer and the Board’s response were similar. In each case, the Union waged an organizational campaign, obtained authorization cards from a majority of employees in the appropriate bargaining unit, and then, on the basis of the cards, demanded recognition by the employer. All three employers refused to bargain on the ground that authorization cards were inherently unreliable indicators of employee desires; and they either embarked on, or continued, vigorous antiunion campaigns that gave rise to numerous unfair labor practice charges. In Gissel, where the employer’s campaign began almost at the outset of the Union’s organizational drive, the Union (petitioner in No. 691), did not seek an election, but instead filed three unfair labor practice charges against the employer, for refusing to bargain in violation of §8 (a) (5), for coercion and intimidation of employees in violation of §8 (a)(1), and for discharge of Union adherents in violation of § 8 (a) (3).1 In Heck’s an elec*?tion sought by the Union was never held because of nearly identical unfair labor practice charges later filed by the Union as a result of the employer’s antiunion campaign, initiated after the Union’s recognition demand.2 *582And in General Steel, an election petitioned for by the Union and won by the employer was set aside by the Board because of the unfair labor practices committed by the employer in the pre-election period.3

In each case, the Board’s primary response was an order to bargain directed at the employers, despite the absence of an election in Gissel and Heck’s and the employer’s victory in General Steel. More specifically, the Board found in each case (1) that the Union had obtained *583valid authorization cards4 from a majority of the employees in the bargaining unit and was thus entitled to represent the employees for collective bargaining purposes; and (2) that the employer’s refusal to bargain with the Union in violation of § 8 (a) (5) was motivated, not by a “good faith” doubt of the Union’s majority status, but by a desire to gain time to dissipate that status. The Board based its conclusion as to the lack of good faith doubt on the fact that the employers had committed substantial unfair labor practices during their antiunion campaign efforts to resist recognition. Thus, the Board found that all three employers had engaged in restraint and coercion of employees in violation of § 8 (a)(1) — in Gissel, for coercively interrogating employees about Union activities, threatening them with discharge, and promising them benefits; in Heck’s, for coercively interrogating employees, threatening reprisals, creating the appearance of surveillance, and offering benefits for opposing the Union; and in General Steel, for coercive interrogation and threats of reprisals, including discharge. In addition, the Board found that the employers in Gissel and Heck’s had wrongfully discharged employees for engaging in Union activities in violation of § 8 (a) (3). And, because the employers had rejected *584the card-based bargaining demand in bad faith, the Board found that all three had refused to recognize the Unions in violation of § 8 (a) (5).

Only in General Steel was there any objection by an employer to the validity of the cards and the manner in which they had been solicited, and the doubt raised by the evidence was resolved in the following manner. The customary approach of the Board in dealing with allegations of misrepresentation by the Union and misunderstanding by the employees of the purpose for which the cards were being solicited has been set out in Cumberland Shoe Corp., 144 N. L. R. B. 1268 (1963) and reaffirmed in Levi Strauss & Co., 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i. e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election. In General Steel, the trial examiner considered the allegations of misrepresentation at length and, applying the Board’s customary analysis, rejected the claims with findings that were adopted by the Board and are reprinted in the margin.5

*585Consequently, the Board ordered the companies to cease and desist from their unfair labor practices, to offer reinstatement and back pay to the employees who had been discriminatorily discharged, to bargain with the Unions on request, and to post the appropriate notices.

On appeal, the Court of Appeals for the Fourth Circuit, in per curiam opinions in each of the three cases (398 F. 2d 336, 337, 339), sustained the Board’s findings as to the §§8(a)(l) and (3) violations, but rejected the Board’s findings that the employers’ refusal to bargain violated § 8 (a) (5) and declined to enforce those portions of the Board’s orders directing the respondent companies to bargain in good faith. The court based its § 8 (a) (5) rulings on its 1967 decisions raising the same fundamental issues, Crawford Mfg. Co. v. NLRB, 386 F. 2d 367, cert. denied, 390 U. S. 1028 (1968) ; NLRB v. Logan Packing Co., 386 F. 2d 562; NLRB v. Sehon Stevenson & Co., Inc., 386 F. 2d 551. The court in those cases held that the 1947 Taft-Hartley amendments to the Act, which permitted the Board to resolve representation disputes by certification under § 9 (c) only by secret ballot election, withdrew from the Board the authority to order an employer to bargain under § 8 (a) (5) on the basis of cards, in the absence of NLRB certification, unless the employer knows independently of the cards that there is in fact no representation dispute. The court held that the cards themselves were so inherently unreliable that their use gave an employer virtually an automatic, good faith claim *586that such a dispute existed, for which a secret election was necessary. Thus, these rulings established that a company could not be ordered to bargain unless (1) there was no question about a Union’s majority status (either because the employer agreed the cards were valid or had conducted his own poll so indicating), or (2) the employer’s §§ 8 (a)(1) and (3) unfair labor practices committed during the representation campaign were so extensive and pervasive that a bargaining order was the only available Board remedy irrespective of a card majority.

Thus based on the earlier decisions, the court’s reasoning in these cases was brief, as indicated by the representative holding in Heck’s:

“We have recently discussed the unreliability of the cards, in the usual case, in determining whether or not a union has attained a majority status and have concluded that an employer is justified in entertaining a good faith doubt of the union’s claims when confronted with a demand for recognition based solely upon union authorization cards. We have also noted that the National Labor Relations Act after the Taft-Hartley amendments provides for an election as the sole basis of a certification and restricts the Board to the use of secret ballots for the resolution of representation questions. This is not one of those extraordinary cases in which a bargaining order might be an appropriate remedy for pervasive violations of § 8 (a) (1). It is controlled by our recent decisions and their reasoning. . . . There was not substantial evidence to support the findings of the Board that Heck’s, Inc. had no good faith doubt of the unions’ claims of majorities.” 398 F. 2d, at 338-339.

*587 No. 585.

In No. 585, the factual pattern was quite similar. The petitioner, a producer of mill rolls, wire, and related products at two plants in Holyoke, Massachusetts, was shut down for some three months in 1952 as the result of a strike over contract negotiations with the American Wire Weavers Protective Association, the representative of petitioner’s journeymen and apprentice wire weavers from 1933 to 1952. The Company subsequently reopened without a union contract, and its employees remained unrepresented through 1964, when the Company was acquired by an Ohio corporation, with the Company’s former president continuing as head of the Holyoke, Massachusetts, division. In July 1965, the International Brotherhood of Teamsters, Local Union No. 404, began an organizing campaign among petitioner’s Holyoke employees and by the end of the summer had obtained authorization cards from 11 of the Company’s 14 journeymen wire weavers choosing the Union as their bargaining agent. On September 20, the Union notified petitioner that it represented a majority of its wire weavers, requested that the Company bargain with it, and offered to submit the signed cards to a neutral third party for authentication. After petitioner’s president declined the Union’s request a week later, claiming, inter alia, that he had a good faith doubt of majority status because of the cards’ inherent unreliability, the Union petitioned, on November 8, for an election that was ultimately set for December 9.

When petitioner’s president first learned of the Union’s drive in July, he talked with all of his employees in an effort to dissuade them from joining a union. He particularly emphasized the results of the long 1952 strike, which he claimed “almost put our company out of busi*588ness,” and expressed worry that the employees were forgetting the “lessons of the past.” He emphasized, secondly, that the Company was still on “thin ice” financially, that the Union’s “only weapon is to strike,” and that a strike “could lead to the closing of the plant,” since the parent company had ample manufacturing facilities elsewhere. He noted, thirdly, that because of their age and the limited usefulness of their skills outside their craft, the employees might not be able to find re-employment if they lost their jobs as a result of a strike. Finally, he warned those who did not believe that the plant could go out of business to “look around Holyoke and see a lot of them out of business.” The president sent letters to the same effect to the employees in early November, emphasizing that the parent company had no reason to stay in Massachusetts if profits went down.

During the two or three weeks immediately prior to the election on December 9, the president sent the employees a pamphlet captioned: “Do you want another 13-week strike?” stating, inter alia, that: “We have no doubt that the Teamsters Union can again close the Wire Weaving Department and the entire plant by a strike. We have no hopes that the Teamsters Union Bosses will not call a strike. . . . The Teamsters Union is a strike happy outfit.” Similar communications followed in late November, including one stressing the Teamsters’ “hoodlum control.” Two days before the election, the Company sent out another pamphlet that was entitled: “Let’s Look at the Record,” and that purported to be an obituary of companies in the Holyoke-Springfield, Massachusetts, area that had allegedly gone out of business because of union demands, eliminating some 3,500 jobs; the first page carried a large cartoon showing the preparation of a grave for the Sinclair Company and other headstones containing the names of other plants allegedly victimized by the unions. Finally, on the day before *589the election, the president made another personal appeal to his employees to reject the Union. He repeated that the Company’s financial condition was precarious; that a possible strike would jeopardize the continued operation of the plant; and that age and lack of education would make re-employment difficult. The Union lost the election 7-6, and then filed both objections to the election and unfair labor practice charges which were consolidated for hearing before the trial examiner.

The Board agreed with the trial examiner that the president’s communications with his employees, when considered as a whole, “reasonably tended to convey to the employees the belief or impression that selection of the Union in the forthcoming election could lead [the Company] to close its plant, or to the transfer of the weaving production, with the resultant loss of jobs to the wire weavers.” Thus, the Board found that under the “totality of the circumstances” petitioner’s activities constituted a violation of §8 (a)(1) of the Act. The Board further agreed with the trial examiner that petitioner’s activities, because they “also interfered with the exercise of a free and untrammeled choice in the election,” and “tended to foreclose the possibility” of holding a fair election, required that the election be set aside. The Board also found that the Union had a valid card majority (the unambiguous cards, see n. 4, supra, went unchallenged) when it demanded recognition initially and that the Company declined recognition, not because of a good faith doubt as to the majority status, but, as the §8 (a)(1) violations indicated, in order to gain time to dissipate that status — in violation of § 8 (a)(5). Consequently, the Board set the election aside, entered a cease-and-desist order, and ordered the Company to bargain on request.

On appeal, the Court of Appeals for the First Circuit sustained the Board’s findings and conclusions and en*590forced its order in full. 397 F. 2d 157. The court rejected the Company’s proposition that the inherent unreliability of authorization cards entitled an employer automatically to insist on an election, noting that the representative status of a union may be shown by means other than an election; the court thus reaffirmed its stance among those circuits disavowing the Fourth Circuit’s approach to authorization cards.6 Because of the conflict among the circuits on the card issues and because of the alleged conflict between First Amendment freedoms and the restrictions placed on employer speech by § 8 (a)(1) in Sinclair, No. 585, we granted certiorari to consider both questions. 393 U. S. 997 (1968). For reasons given below, we reverse the decisions of the Court of Appeals for the Fourth Circuit and affirm the ruling of the Court of Appeals for the First Circuit.

II.

In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the National Labor Relations *591Board contends that we should approve its interpretation and administration of the duties and obligations imposed by the Act in authorization card cases. The Board argues (1) that unions have never been limited under § 9 (c) of either the Wagner Act or the 1947 amendments to certified elections as the sole route to attaining representative status. Unions may, the Board contends, impose a duty to bargain on the employer under § 8 (a) (5) by reliance on other evidence of majority employee support, such as authorization cards. Contrary to the Fourth Circuit’s holding, the Board asserts, the 1947 amendments did not eliminate the alternative routes to majority status. The Board contends (2) that the cards themselves, when solicited in accordance with Board standards which adequately insure against union misrepresentation, are sufficiently reliable indicators of employee desires to support a bargaining order against an employer who refuses to recognize a card majority in violation of §8 (a) (5). The Board argues (3) that a bargaining order is the appropriate remedy for the § 8 (a) (5) violation, where the employer commits other unfair labor practices that tend to undermine union support and render a fair election improbable.

Relying on these three assertions, the Board asks us to approve its current practice, which is briefly as follows. When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union’s request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under §9 (c)(1)(B). If, however, the employer commits independent and substantial unfair labor practices disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a bargaining order as a remedy *592for the various violations. A bargaining order will not issue, of course, if the union obtained the cards through misrepresentation or coercion or if the employer’s unfair labor practices are unrelated generally to the representation campaign. Conversely, the employers in these cases urge us to adopt the views of the Fourth Circuit.

There is more at issue in these cases than the dispute outlined above between the Board and the four employers, however, for the Union, petitioner in No. 691, argues that we should accord a far greater role to cards in the bargaining area than the Board itself seeks in this litigation. In order to understand the differences between the Union and the Board, it is necessary to trace the evolution of the Board’s approach to authorization cards from its early practice to the position it takes on oral argument before this Court. Such an analysis requires viewing the Board’s treatment of authorization cards in three separate phases: (1) under the Joy Silk doctrine, (2) under the rules of the Aaron Brothers case, and (3) under the approach announced at oral argument before this Court.

The traditional approach utilized by the Board for many years has been known as the Joy Silk doctrine. Joy Silk Mills, Inc., 85 N. L. R. B. 1263 (1949), enforced, 87 U. S. App. D. C. 360, 185 F. 2d 732 (1950). Under that rule, an employer could lawfully refuse to bargain with a union claiming representative status through possession of authorization cards if he had a “good faith doubt” as to the union’s majority status; instead of bargaining, he could insist that the union seek an election in order to test out his doubts. The Board, then, could find a lack of good faith doubt and enter a bargaining order in one of two ways. It could find (1) that the employer’s independent unfair labor practices were evidence of bad faith, showing that the employer was seeking time to dissipate the union’s *593majority. Or the Board could find (2) that the employer had come forward with no reasons for entertaining any doubt and therefore that he must have rejected the bargaining demand in bad faith. An example of the second category was Snow & Sons, 134 N. L. R. B. 709 (1961), enforced, 308 F. 2d 687 (C. A. 9th Cir. 1962), where the employer reneged on his agreement to bargain after a third party checked the validity of the card signatures and insisted on an election because he doubted that the employees truly desired representation. The Board entered a bargaining order with very broad language to the effect that an employer could not refuse a bargaining demand and seek an election instead “without a valid ground therefor,” 134 N. L. R. B., at 710-711. See also Dixon Ford Shoe Co., Inc., 150 N. L. R. B. 861 (1965); Kellogg Mills, 147 N. L. R. B. 342, 346 (1964), enforced, 347 F. 2d 219 (C. A. 9th Cir. 1965).

The leading case codifying modifications to the Joy Silk doctrine was Aaron Brothers, 158 N. L. R. B. 1077 (1966). There the Board made it clear that it had shifted the burden to the General Counsel to show bad faith and that an employer “will not be held to have violated his bargaining obligation . . . simply because he refuses to rely upon cards, rather than an election, as the method for determining the union’s majority.” 158 N. L. R. B., at 1078. Two significant consequences were emphasized. The Board noted (1) that not every unfair labor practice would automatically result in a finding of bad faith and therefore a bargaining order; the Board implied that it would find bad faith only if the unfair labor practice was serious enough to have the tendency to dissipate the union’s majority. The Board noted (2) that an employer no longer needed to come forward with reasons for rejecting a bargaining demand. The Board pointed out, however, that a bargaining order would issue if it could prove that an employer’s “course of conduct” *594gave indications as to the employer’s bad faith. As examples of such a “course of conduct,” the Board cited Snow & Sons, supra; Dixon Ford Shoe Co., Inc., supra, and Kellogg Mills, supra, thereby reaffirming John P. Serpa, Inc., 155 N. L. R. B. 99 (1965), where the Board had limited Snow & Sons to its facts.

Although the Board’s brief before this Court generally followed the approach as set out in Aaron Brothers, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether. Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple “no comment” to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union’s strength.

The Union argues here that an employer’s right to insist on an election in the absence of unfair labor practices should be more circumscribed, and a union’s right to rely on cards correspondingly more expanded, than the Board would have us rule. The Union’s contention is that an employer, when confronted with a card-based bargaining demand, can insist on an election only by filing the election petition himself immediately under *595i 9 (c)(1)(B) and not by insisting that the Union file the election petition, whereby the election can be subjected to considerable delay. If the employer does not himself petition for an election, the Union argues, he must recognize the Union regardless of his good or bad faith and regardless of his other unfair labor practices, and should be ordered to bargain if the cards were in fact validly obtained. And if this Court should continue to utilize the good faith doubt rule, the Union contends that at the least we should put the burden on the employer to make an affirmative showing of his reasons for entertaining such doubt.

Because the employers’ refusal to bargain in each of these cases was accompanied by independent unfair labor practices which tend to preclude the holding of a fair election, we need not decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes.

With the Union’s arguments aside, the points of difference between the employers and the Board will be considered in the following manner. The validity of the cards under the Act, their intrinsic reliability, and the appropriateness of a bargaining order as a response to violations of § 8 (a)(5) as well as §§ 8 (a)(1) and (3) will be discussed in the next section. The nature of an employer’s reaction to an organizational campaign, and particularly the Board’s conclusion that the employer’s statements in No. 585 contained threats of reprisal and thus constituted restraint and coercion in violation of § 8 (a)(1) and not protected speech, will be covered in the final section.

III.

The first issue facing us is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to *596majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. The most commonly traveled7 route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of employees is through the Board’s election and certification procedures under § 9 (c) of the Act (29 ü. S. C. § 159(c)); it is also, from the Board’s point of view, the preferred route.8 A union is not limited to a Board election, however, for, in addition to § 9, the present Act provides in § 8 (a) (5) (29 U. S. C. § 158 (a)(5)), as did the Wagner Act in § 8 (5), that “[i]t shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).” Since § 9 (a), in both the Wagner Act and the present Act, refers to the representative as the one “designated or selected” by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recognized that an employer had a duty to bargain whenever the union representative presented “convincing evidence of majority support.”9 Almost from the inception of the Act, *597then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of §8 (a) (5) — by showing convincing support, for instance, by a union-called strike or strike vote,10 or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.11

We have consistently accepted this interpretation of the Wagner Act and the present Act, particularly as to the use of authorization cards. See, e. g., NLRB v. Bradford Dyeing Assn., 310 U. S. 318, 339-340 (1940); Franks Bros. Co. v. NLRB, 321 U. S. 702 (1944); United Mine Workers v. Arkansas Flooring Co., 351 U. S. 62 (1956). Thus, in United Mine Workers, supra, we noted that a “Board election is not the only method by which an employer may satisfy itself as to the union’s majority status,” 351 U. S., at 72, n. 8, since § 9 (a), “which deals expressly with employee representation, says nothing as to how the employees’ representative shall be chosen,” 351 U. S., at 71. We therefore pointed out in that case, where the union had obtained signed authorization cards from a majority of the employees, that “[i]n the absence of any bona fide dispute12 as to the existence of the required majority of eligible employees, the employer’s denial of recognition of the union would have violated *598§8 (a) (5) of the Act.” 351 U. S., at 69. We see no reason to reject this approach to bargaining obligations now, and we find unpersuasive the Fourth Circuit’s view that the 1947 Taft-Hartley amendments, enacted some nine years before our decision in United Mine Workers, supra, require us to disregard that case. Indeed, the 1947 amendments weaken rather than strengthen the position taken by the employers here and the Fourth Circuit below. An early version of the bill in the House would have amended § 8 (5) of the Wagner Act to permit the Board to find a refusal-to-bargain violation only where an employer had failed to bargain with a union “currently recognized by the employer or certified as such [through an election] under section 9.” Section 8 (a)(5) of H. R. 3020, 80th Cong., 1st Sess. (1947). The proposed change, which would have eliminated the use of cards, was rejected in Conference (H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41 (1947)), however, and we cannot make a similar change in the Act simply because, as the employers assert, Congress did not expressly approve the use of cards in rejecting the House amendment. Nor can we accept the Fourth Circuit’s conclusion that the change was wrought when Congress amended § 9 (c) to make election the sole basis for certification by eliminating the phrase “any other suitable method to ascertain such representatives,”13 under which the Board had occasionally used cards as a certification basis. A certified union has the benefit of numerous special privileges *599which are not accorded unions recognized voluntarily or under a bargaining order14 and which, Congress could determine, should not be dispensed unless a union has survived the crucible of a secret ballot election.

The employers rely finally on the addition to § 9 (c) of subparagraph (B), which allows an employer to petition for an election whenever “one or more individuals or labor organizations have presented to him a claim15 to be recognized as the representative defined in section 9 (a).” That provision was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.16 We *600agree with the Board's assertion here that there is no suggestion that Congress intended §9 (c)(1)(B) to relieve any employer of his § 8 (a) (5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery. And we agree that the policies reflected in § 9 (c) (1) (B) fully support the Board's present administration of the Act (see supra, at 591-592); for an employer can insist on a secret ballot election, unless, in the words of the Board, he engages “in contemporaneous unfair labor practices likely to destroy the union’s majority and seriously impede the election.” Brief for Petitioner, the Board, in No. 573, p. 36.

In short, we hold that the 1947 amendments did not restrict an employer’s duty to bargain under § 8 (a)(5) solely to those unions whose representative status is certified after a Board election.17

*601B.

We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union’s majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. Even if we do not unhesitatingly accept the Fourth Circuit’s view in the matter, the employers argue, at the very least we should overrule the Cumberland Shoe doctrine (see supra, at 584) and establish stricter controls over the solicitation of the cards by union representatives.18

*602The objections to the use of cards voiced by the employers and the Fourth Circuit boil down to two contentions:19 (1) that, as contrasted with the election procedure,20 the cards cannot accurately reflect an employee’s wishes, either because an employer has not had a chance to present his views and thus a chance to insure that the employee choice was an informed one, or because the choice was the result of group pressures and not individual decision made in the privacy of a voting booth; and (2) that quite apart from the election comparison, the cards are too often obtained through misrepresentation and coercion which compound the cards’ inherent inferiority to the election process. Neither contention is persuasive, and each proves too much. The Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory — indeed the preferred — method of ascertaining whether a union has majority support.21 The acknowledged superiority of the election process, however, does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective — perhaps the only — way of assuring employee choice. As for misrepresentation, in any specific case of *603alleged irregularity in the solicitation of the cards, the proper course is to apply the Board’s customary standards (to be discussed more fully below) and rule that there was no majority if the standards were not satisfied. It does not follow that because there are some instances of irregularity, the cards can never be used; otherwise, an employer could put off his bargaining obligation indefinitely through continuing interference with elections.

That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded, needs no extended discussion, for the employers’ contentions cannot withstand close examination. The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer’s awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful. See, e. g., Hunt Oil Co., 157 N. L. R. B. 282 (1966); Don Swart Trucking Co., 154 N. L. R. B. 1345 (1965). Thus, in all of the cases here but the Charleston campaign in Heck’s the employer, whether informed by the union or not, was aware of the union’s organizing drive almost at the outset and began its antiunion campaign at that time; and even in the Heck’s Charleston case, where the recognition demand came about a week after the solicitation began, the employer was able to deliver a speech before the union obtained a majority. Further, the employers argue that without a secret ballot an employee may, in *604a card drive, succumb to group pressures or sign simply to get the union “off his back” and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units22 where virtually every voter’s sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election even though he may think better of his choice shortly thereafter.

The employers’ second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board’s present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators23 have differed significantly as to the effectiveness of the Board’s Cumberland Shoe doctrine (see supra, at 584) to cure such abuses.

Thus, even where the cards are unambiguous on their face, both the Second Circuit (NLRB v. S. E. Nichols Co., 380 F. 2d 438 (1967)) and the Fifth Circuit (Engineers & Fabricators, Inc. v. NLRB, 376 F. 2d 482 (1967)) have joined the Fourth Circuit below *605in rejecting the Board’s rule that the cards will be counted unless the solicitor’s statements amounted under the circumstances to an assurance that the cards would be used only for an election, or for no other purpose than an election. And even those circuits which have adopted the Board’s approach have criticized the Board for tending too often to apply the Cumberland rule too mechanically, declining occasionally to uphold the Board’s application of its own rule in a given case. See, e. g., NLRB v. Southbridge Sheet Metal Works, Inc., 380 F. 2d 851 (C. A. 1st Cir. 1967); NLRB v. Sandy’s Stores, Inc., 398 F. 2d 268 (C. A. 1st Cir. 1968); NLRB v. Swan Super Cleaners, Inc., 384 F. 2d 609 (C. A. 6th Cir. 1967); NLRB v. Dan Howard Mfg. Co., 390 F. 2d 304 (C. A. 7th Cir. 1968); Furr’s, Inc. v. NLRB, 381 F. 2d 562 (C. A. 10th Cir. 1967); UAW v. NLRB, 129 U. S. App. D. C. 196, 392 F. 2d 801 (1967). Among those which reject the Cumberland rule, the Fifth Circuit agrees with the Second Circuit (see S. E. Nichols Co., supra), that a card will be vitiated if an employee was left with the impression that he would be able to resolve any lingering doubts and make a final decision in an election, and further requires that the Board probe the subjective intent of each signer, an inquiry expressly avoided by Cumberland. See NLRB v. Southland Paint Co., 394 F. 2d 717, 728, 730 (C. A. 5th Cir. 1968); Engineers & Fabricators, Inc. v. NLRB, supra. Where the cards are ambiguous on their face, the Fifth Circuit, joined by the Eighth Circuit (see, e. g., NLRB v. Peterson Bros., 342 F. 2d 221 (C. A. 5th Cir. 1965), and Bauer Welding & Metal Fabricators, Inc. v. NLRB, 358 F. 2d 766 (C. A. 8th Cir. 1966)), departs still further from the Board rule. And there is a conflict among those courts which otherwise follow the Board as to single-purpose cards (compare NLRB v. Lenz Co., 396 F. 2d 905, 908 (C. A. 6th Cir. 1968), with NLRB v. C. J. Glasgow Co., 356 F. 2d 476, 478 (C. A. 7th Cir. 1966)).

*606We need make no decision as to the conflicting approaches used with regard to dual-purpose cards, for in each of the five organization campaigns in the four cases before us the cards used were single-purpose cards, stating clearly and unambiguously on their face that the signer designated the union as his representative. And even the view forcefully voiced by the Fourth Circuit below that unambiguous cards as well present too many opportunities for misrepresentation comes before us somewhat weakened in view of the fact that there were no allegations of irregularities in four of those five campaigns (Gissel, the two Heck’s campaigns,24 and Sinclair). Only in General Steel did the employer challenge the cards on the basis of misrepresentations. There, the trial examiner, after hearing testimony from over 100 employees and applying the traditional Board approach (see n. 5, supra), concluded that “all of these employees not only intended, but were fully aware, that they were thereby designating the Union as their representative.” Thus, the sole question before us, raised in only one of the four cases here, is whether the Cumberland Shoe doctrine is an adequate rule under the Act for assuring employee free choice.

In resolving the conflict among the circuits in favor of approving the Board’s Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee *607a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30% 25 of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers/ here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance,26 and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.

We agree, however, with the Board’s own warnings in Levi Strauss & Co., 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1341, and n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by *608a too easy mechanical application of the Cumberland rule.27 We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8 (a) (1).28 We therefore reject any rule that requires a probe of an employee’s subjective motivations as involving an endless and unreliable inquiry. We nevertheless feel that the trial examiner’s findings in General Steel (see n. 5, supra) represent the limits of the Cumberland rule’s application. We emphasize that the Board should be careful to guard *609against an approach any more rigid than that in General Steel. And we reiterate that nothing we say here indicates our approval of the Cumberland Shoe rule when applied to ambiguous, dual-purpose cards.

The employers argue as a final reason for rejecting the use of the cards that they are faced with a Hobson’s choice29 under current Board rules and will almost inevitably come out the loser. They contend that if they do not make an immediate, personal investigation into possible solicitation irregularities to determine whether in fact the union represents an uncoerced majority, they will have unlawfully refused to bargain for failure to have a good faith doubt of the union’s majority; and if they do make such an investigation, their efforts at polling and interrogation will constitute an unfair labor practice in violation of §8 (a)(1) and they will again be ordered to bargain. As we have pointed out, however, an employer is not obligated to accept a card check as proof of majority status, under the Board’s current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See Aaron Brothers, 158 N. L. R. B. 1077, 1078. If he does make an investigation, the Board’s recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8 (a)(1) if conducted in accordance with the requirements set out in Struksnes Construction Co., 165 N. L. R. B. No. 102, 65 L. R. R. M. 1385 (1967). And even if an employer’s limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc., 154 N. L. R. B. 1071 *610(1965). As noted above, the Board has emphasized that not “any employer conduct found violative of Section 8 (a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,” Aaron Brothers, supra, at 1079.

Remaining before us is the propriety of a bargaining order as a remedy for a §8 (a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union’s majority and caused an election to be set aside. We have long held that the Board is not limited to a cease-and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status. See NLRB v. Katz, 369 U. S. 736, 748, n. 16 (1962); NLRB v. P. Lorillard Co., 314 U. S. 512 (1942). And we have held that the Board has the same authority even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered. Franks Bros. Co. v. NLRB, 321 U. S. 702 (1944). We see no reason now to withdraw this authority from the Board. If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him “to profit from [his] own wrongful refusal to bargain,” Franks Bros., supra, at 704, while at the same time severely curtailing the employees’ right freely to determine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation *611to bargain;30 and any election held under these circumstances would not be likely to demonstrate the employees’ true, undistorted desires.31

The employers argue that the Board has ample remedies, over and above the cease-and-desist order, to control employer misconduct. The Board can, they assert, direct the companies to mail notices to employees, to read *612notices to employees during plant time and to give the union access to employees during working time at the plant, or it can seek a court injunctive order under § 10 (j) (29 U. S. C. § 160 (j)) as a last resort. In view of the Board’s power, they conclude, the bargaining order is an unnecessarily harsh remedy that needlessly prejudices employees’ § 7 rights solely for the purpose of punishing or restraining an employer. Such an argument ignores that a bargaining order is designed as much to remedy past election damage32 as it is to deter future misconduct. If an employer has succeeded in undermining a union’s strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they existed before the employer’s unlawful campaign.33 *613There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer’s acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition. For, as we pointed out long ago, in finding that a bargaining order involved no “injustice to employees who may wish to substitute for the particular union some other . . . arrangement,” a bargaining relationship “once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,” after which the “Board may, . . . upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships.” Frank Bros., supra, at 705-706.

Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a determination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. *614Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” NLRB v. Logan Packing Co., 386 F. 2d 562, 570 (C. A. 4th Cir. 1967); see also NLRB v. Heck’s, Inc., 398 F. 2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a§8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U. S. App. D. C. 215, 376 F. 2d 770 (1967); J. C. Penney Co., Inc. v. NLRB, 384 F. 2d 479, 485-486 (C. A. 10th Cir. 1967).

The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected *615by a bargaining order, then such an order should issue (see n. 32, supra).

We emphasize that under the Board’s remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says, no per se rule that the commission of any unfair practice will automatically result in a § 8 (a) (5) violation and the issuance of an order to bargain. See Aaron Brothers, supra.

With these considerations in mind, we turn to an examination of the orders in these cases. In Sinclair, No. 585, the Board made a finding, left undisturbed by the First Circuit, that the employer’s threats of reprisal were so coercive that, even in the absence of a §8 (a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats.34 The Board therefore did not have to make the determination called for in the intermediate situation above that the risks that a fair rerun election might not be possible were too great to disregard the desires of the employees already expressed through the cards. The employer argues, however, that its communications to its employees were protected by the First Amendment and § 8 (c) of the Act (29 U. S. C. § 158 (c)), whatever the effect of those communications on the union’s majority or the Board’s ability to ensure a fair election; it is to that contention that .we shall direct our final attention in the next section.

In the three cases in Nos. 573 and 691 from the Fourth Circuit, on the other hand, the Board did not make a *616similar finding that a bargaining order would have been necessary in the absence of an unlawful refusal to bargain. Nor did it make a finding that, even though traditional remedies might be able to ensure a fair election, there was insufficient indication that an election (or a rerun in General Steel) would definitely be a more reliable test of the employees’ desires than the card count taken before the unfair labor practices occurred. The employees argue that such findings would not be warranted, and the court below ruled in General Steel that available remedies short of a bargaining order could guarantee a fair election. 398 F. 2d 339, 340, n. 3. We think it possible that the requisite findings were implicit in the Board’s decisions below to issue bargaining orders (and to set aside the election in General Steel); and we think it clearly inappropriate for the court below to make any contrary finding on its own (see n. 32, supra). Because the Board’s current practice at the time required it to phrase its findings in terms of an employer’s good or bad faith doubts (see Part II, supra), however, the precise analysis the Board now puts forth was not employed below, and we therefore remand these cases for proper findings.

IV.

We consider finally petitioner Sinclair’s First Amendment challenge to the holding of the Board and the Court of Appeals for the First Circuit. At the outset we note that the question raised here most often arises in the context of a nascent union organizational drive, where employers must be careful in waging their anti-union campaign. As to conduct generally, the above-noted gradations of unfair labor practices, with their varying consequences, create certain hazards for employers when they seek to estimate or resist unionization efforts. But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coer*617cive interrogation, we do not think that employers can complain that the distinctions are unreasonably difficult to follow. Where an employer’s antiunion efforts consist of speech alone, however, the difficulties raised are not so easily resolved. The Board has eliminated some of the problem areas by no longer requiring an employer to show affirmative reasons for insisting on an election and by permitting him to make reasonable inquiries. We do not decide, of course, whether these allowances are mandatory. But we do note that an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8 (c) (29 U. S. C. § 158 (c)) merely implements the First Amendment by requiring that the expression of “any views, argument, or opinion” shall not be “evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of §8 (a)(1). Section 8(a)(1), in turn, prohibits interference, restraint or coercion of employees in the exercise of their right to self-organization.

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by §8 (a)(1) and the proviso to § 8 (c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the *?election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Cf. New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

Within this framework, we must reject the Company’s challenge to the decision below and the findings of the Board on which it was based. The standards used below for evaluating the impact of an employer’s statements are not seriously questioned by petitioner and we see no need to tamper with them here. Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U. S. 263, 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that “[conveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality *619of closing is capable of proof.” 397 F. 2d 157, 160. As stated elsewhere, an employer is free only to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control,” and not “threats of economic reprisal to be taken solely on his own volition.” NLRB v. River Togs, Inc., 382 F. 2d 198, 202 (C. A. 2d Cir. 1967).

Equally valid was the finding by the court and the Board that petitioner’s statements and communications were not cast as a prediction of “demonstrable ‘economic consequences,’ ” 397 F. 2d, at 160, but rather as a threat of retaliatory action. The Board found that petitioner’s speeches, pamphlets, leaflets, and letters conveyed the following message: that the company was in a precarious financial condition; that the “strike-happy” union would in all likelihood have to obtain its potentially unreasonable demands by striking, the probable result of which would be a plant shutdown, as the past history of labor relations in the area indicated; and that the employees in such a case would have great difficulty finding employment elsewhere. In carrying out its duty to focus on the question: “[W]hat did the speaker intend and the listener understand?” (A. Cox, Law and the National Labor Policy 44 (I960)), the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. In this connection, we need go no further than to point out (1) that petitioner had no support for its basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard, and that it admitted at the hearing that it had no basis for attributing other plant closings in the area to unionism; and (2) that the Board has often found that employees, who are particularly sensitive to rumors *620of plant closings,35 take such hints as coercive threats rather than honest forecasts.36

Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis and that the Board’s discretion to curtail free speech rights is correspondingly too uncontrolled. It is true that a reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see NLRB v. Virginia Electric & Power Co., 314 U. S. 469, 479 (1941). But an employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in “ ‘brinkmanship’ ” when it becomes all too easy to “overstep and tumble [over] the brink,” Wausau Steel Corp. v. NLRB, 377 F. 2d 369, 372 (C. A. 7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.

For the foregoing reasons, we affirm the judgment of the Court of Appeals for the First Circuit in No. 585, and we reverse the judgments of the Court of Appeals for the Fourth Circuit in Nos. 573 and 691 insofar as they decline enforcement of the Board’s orders to bargain and remand those cases to that court with directions to remand to the Board for further proceedings in conformity with this opinion. r. . , , J

r. J It is so ordered.

At the outset of the Union campaign, the Company vice president informed two employees, later discharged, that if they were caught talking to Union men, “you God-damned things will go.” Subsequently, the Union presented oral and written demands for recognition, claiming possession of authorization cards from 31 *?of the 47 employees in the appropriate unit. Rejecting the bargaining demand, the Company began to interrogate employees as to their Union activities; to promise them better benefits than the Union could offer; and to warn them that if the “union got in, [the vice president] would just take his money and let the union run the place,” that the Union was not going to get in, and that it would have to “fight” the Company first. Further, when the Company learned of an impending Union meeting, it arranged, so the Board later found, to have an agent present to report the identity of the Union’s adherents. On the first day following the meeting, the vice president told the two employees referred to above that he knew they had gone to the meeting and that their work hours were henceforth reduced to half a day. Three hours later, the two employees were discharged.

The organizing drive was initiated by the employees themselves at Heck’s Charleston warehouses. The Union first demanded recognition on the basis of 13 cards from 26 employees of the Company’s three Charleston warehouses. After responding “No comment” to the Union’s repeated requests for recognition, the president assembled the employees and told them of his shock at their selection of the Union; he singled out one of the employees to ask if he had signed an authorization card. The next day the Union obtained the additional card necessary to establish a majority. That same day, the leading Union supporter (the employee who had first established contacts with the Union and had solicited a large number of the cards) was discharged, and another employee was interrogated as to his Union activities, encouraged to withdraw his authorization, and warned that a Union victory could result in reduced hours, fewer raises, and withdrawal of bonuses. A second demand for recognition was made two days later, and thereafter the president summoned two known Union supporters to his office and offered them new jobs at higher pay if they would use their influence to “break up the union.”

The same pattern was repeated a year later at the Company’s Ashland, Kentucky, store, where the Union obtained cards from 21 of the 38 employees by October 5, 1965. The next day, the *582assistant store manager told an employee that he knew that the Union had acquired majority status. When the Union requested recognition on October 8, however, the Company refused on the ground that it was not sure whether department heads were included in the bargaining unit — even though the cards represented a majority with or without the department heads. After a second request for recognition and an offer to submit the cards to the employer for verification, respondent again refused, on grounds of uncertainty about the definition of the unit and because a poll taken by the Company showed that a majority of the employees did not want Union representation. Meanwhile, the Company told the employees that an employee of another company store had been fired on the spot for signing a card, warned employees that the Company knew which ones had signed cards, and polled employees about their desire for Union representation without giving them assurances against reprisals.

Throughout the Union’s six-month organizational campaign— both before and after its demand for recognition based on possession of cards from 120 of the 207 employees in the appropriate unit— the Company’s foremen and supervisors interrogated employees about their Union involvement; threatened them with discharge for engaging in Union activities or voting for the Union; suggested that unionization might hurt business and make new jobs more difficult to obtain; warned that strikes and other dire economic consequences would result (a supervisor informed a group of employees that if the Union came in, “a nigger would be the head of it,” and that when the Company put in 10 new machines, “the niggers would be the operators of them”); and asserted that, although the Company would have to negotiate with the Union, it could negotiate endlessly and would not have to sign anything.

“Accordingly, I reject Respondent’s contention 'that if a man is told that his card will be secret, or will be shown only to the Labor Board for the purpose of obtaining election, that this is the absolute equivalent of telling him that it will be used “only” for purposes of obtaining an election.’

“With respect to the 97 employees named in the attached Appendix B Respondent in its brief contends, in substance, that their cards should be rejected because each of these employees was told one or more of the following: (1) that the card would be used to get an election (2) that he had the right to vote either way, even *585though he signed the card (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election. For reasons heretofore explicated, I conclude that these statements, singly or jointly, do not foreclose use of the cards for the purpose designated on their face.”

See, e. g., Joy Silk Mills, Inc. v. NLRB, 87 U. S. App. D. C. 360, 185 F. 2d 732 (1950), cert. denied, 341 U. S. 914 (1951); NLRB v. Gotham Shoe Mfg. Co., Inc., 359 F. 2d 684 (C. A. 2d Cir. 1966); NLRB v. Quality Markets, Inc., 387 F. 2d 20 (C. A. 3d Cir. 1967); NLRB v. Phil-Modes, Inc., 396 F. 2d 131 (C. A. 5th Cir. 1968); Atlas Engine Works, Inc. v. NLRB, 396 F. 2d 775 (C. A. 6th Cir. 1968), petition for certiorari pending; NLRB v. Clark Products, Inc., 385 F. 2d 396 (C. A. 7th Cir. 1967) ; NLRB v. Ralph Printing & Lithographing Co., 379 F. 2d 687 (C. A. 8th Cir. 1967); NLRB v. Luisi Truck Lines, 384 F. 2d 842 (C. A. 9th Cir. 1967); Furr’s, Inc. v. NLRB, 381 F. 2d 562 (C. A. 10th Cir.), cert. denied, 389 U. S. 840 (1967).

In addition to the First Circuit below, four courts of appeals have subsequently considered the Fourth Circuit’s view of the cards and specifically rejected it. NLRB v. United Mineral & Chemical Corp., 391 F. 2d 829, 836, n. 10 (C. A. 2d Cir. 1968); NLRB v. Goodyear Tire & Rubber Co., 394 F. 2d 711, 712-713 (C. A. 5th Cir. 1968); NLRB v. Atco-Surgical Supports, 394 F. 2d 659, 660 (C. A. 6th Cir. 1968); NLRB v. Ozark Motor Lines, 403 F. 2d 356 (C. A. 8th Cir. 1968).

The Senate report stated that the “present Board rules . . . discriminate against employers who have reasonable grounds for *600believing that labor organizations claiming to represent their employees are really not the choice of the majority.” S. Rep. No. 105, 80th Cong., 1st Sess., 10 (1947). Senator Taft stated during the debates:

“Today an employer is faced with this situation. A man comes into his office and says, ‘I represent your employees. Sign this agreement, or we strike tomorrow.’. . . The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board . . . and say, ‘I want an election. I want to know who is the bargaining agent for my employees.’” 93 Cong. Rec. 3838 (1947).

In dealing with the reliability of cards, we should re-emphasize what issues we are not confronting. As pointed out above, we are not here faced with a situation where an employer, with “good” or “bad” subjective motivation, has rejected a card-based bargaining request without good reason and has insisted that the Union go to an election while at the same time refraining from committing unfair labor practices that would tend to disturb the “laboratory conditions” of that election. We thus need not decide whether, absent election interference by an employer’s unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board’s ultimate determination of the card results regardless of his earlier good faith doubts, or whether he can still insist on a Union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute. In short, a union’s right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference is not put in issue here; we need only decide whether the cards are reliable enough to support a bargaining order where a fair election probably could not have been held, or where an election that was held was in fact set aside.

Criminal sanctions are imposed by § 302 (29 U. S. C. § 186) which makes it unlawful for an employer to pay to and for a union representative to receive “any money or other thing of value.” Section 302 (c) (4) (29 U. S. C. § 186 (c) (4)) exempts payments by employers to union representatives of union dues, however, where an employee has executed a “written assignment” of the dues, 2. e., a check-off authorization. Signatures are also relied on in §9 (c)(1) (A) (29 U. S. C. § 159 (c) (1) (A)), which provides for Board processing of representation and decertification petitions when each is supported by a “substantial number of employees” (the basis for the 30% signature requirement, see n. 25, supra), and in § 9 (e) which specifically provides for 30% of the signatures in the bargaining unit to empower the Board to hold a union shop de-authorization election.

In explaining and reaffirming the Cumberland Shoe doctrine in the context of unambiguous cards, the Board stated:

“Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose . . . .”

The Board stated further in a footnote:

“The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the ‘sole’ or ‘only’ purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than to form. It is not the use or nonuse of certain key or ‘magic’ words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election.” 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1341-1342, and n. 7.

A study of 20,153 elections held between 1960 and 1962 shows that in the 267 cases where rerun elections were held over 30% were won by the party who caused the election to be set aside. See Pollitt, NLRB Re-Run Elections: A Study, 41 N. C. L. Rev. 209, 212 (1963). The study shows further that certain unfair labor practices are more effective to destroy election conditions for a longer period of time than others. For instance, in cases involving threats to close or transfer plant operations, the union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the union if elected seemed less irremediable with the union winning the rerun 75% of the time. Id., at 215-216. Finally, time appears to be a factor. The figures suggest that if a rerun is held too soon after the election before the effects of the unfair labor practices have worn off, or too long after the election when interest in the union may have waned, the chances for a changed result occurring are not as good as they are if the rerun is held sometime in between those periods. Thus, the study showed that if the rerun is held within 30 days of the election or over nine months after, the chances that a different result will occur are only one in five; when the rerun is held within 30-60 days after the election, the chances for a changed result are two in five. Id., at 221.

The employers argue that the Fourth Circuit correctly observed that, “in the great majority of cases, a cease and desist order with the posting of appropriate notices will eliminate any undue influences upon employees voting in the security of anonymity.” NLRB v. Logan Packing Co., 386 F. 2d, at 570. It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10 (c) of the Act (29 U. S. C. § 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203 (1964). “[I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.” Consolo v. FMC, 383 U. S. 607, 621 (1966).

It has been pointed out that employee rights are affected whether or not a bargaining order is entered, for those who desire representation may not be protected by an inadequate rerun election, and those who oppose collective bargaining may be prejudiced by a bargaining order if in fact the union would have lost an election absent employer coercion. See Lesnick, supra, n. 17, at 862. Any *613effect will be minimal at best, however, for there “is every reason for the union to negotiate a contract that will satisfy the majority, for the union will surely realize that it must win the support of the employees, in the face of a hostile employer, in order to survive the threat of a decertification election after a year has passed.” Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 135 (1964).

8.3 Hoffman Plastic Compounds, Inc. v. National Labor Relations Board 8.3 Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

Supreme Court of the United States

535 U.S. 137, 152 L. Ed. 2d 271, 122 S. Ct. 1275, SCDB 2001-033, 2002 U.S. LEXIS 2147

No. 00-1595

2002-03-27

HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL LABOR RELATIONS BOARD

No. 00-1595.

Argued January 15, 2002 —

Decided March 27, 2002

*139 Ryan D. McCortney argued the cause for petitioner. With him on the briefs was Maurice Babkin.

Paul R. Q. Wolf son argued the cause for respondent. With him on the brief were Solicitor General Olson, Deputy Solicitor General Wallace, Arthur F Rosenfeld, John H. Ferguson, Norton J. Come, and John Emad Arbab. *

Ann Elizabeth Reesman and Daniel V. Yager filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, and M. Patricia Smith and Seth Kupperberg, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: Janet Napolitano of Arizona, Bill Lockyer of California, Earl I. Anzai of Hawaii, Thomas F. Reilly of Massachusetts, Darrell V. McGraw, Jr., of West Virginia, and Anabelle Rodriguez of Puerto Rico; for the American Civil Liberties Union Foundation et al. by Craig Goldblatt and Lucas Guttentag; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Michael Rubin; for Employers and Employer Organizations by David A Schulz, Jeffrey H. Drichta, and Michael J. Wishnie; and for the National Employment Law Project et al. by Rebecca Smith, James Reif, and James Williams.

*140Chief Justice Rehnquist

delivered the opinion of the Court.

The National Labor Relations Board (Board) awarded backpay to an undocumented alien who has never been legally authorized to work in the United States. We hold that such relief is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA).

Petitioner Hoffman Plastic Compounds, Inc. (petitioner or Hoffman), custom-formulates chemical compounds for businesses that manufacture pharmaceutical, construction, and household products. In May 1988, petitioner hired Jose Castro to operate various blending machines that “mix and cook" the particular formulas per customer order. Before being hired for this position, Castro presented documents that appeared to verify his authorization to work in the United States. In December 1988, the United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO, began a union-organizing campaign at petitioner’s production plant. Castro and several other employees supported the organizing campaign and distributed authorization cards to co-workers. In January 1989, Hoffman laid off Castro and other employees engaged in these organizing activities.

Three years later, in January 1992, respondent Board found that Hoffman unlawfully selected four employees, including Castro, for layoff “in order to rid itself of known union supporters” in violation of § 8(a)(3) of the National Labor Relations Act (NLRA).1 306 N. L. R. B. 100. To remedy this violation, the Board ordered that Hoffman (1) cease and desist from further violations of the NLRA, (2) post a detailed notice to its employees regarding the remedial order, and (3) offer reinstatement and backpay to the *141four affected employees. Id., at 107-108. Hoffman entered into a stipulation with the Board’s General Counsel and agreed to abide by the Board’s order.

In June 1993, the parties proceeded to a compliance hearing before an Administrative Law Judge (ALJ) to determine the amount of backpay owed to each discriminatee. On the final day of the hearing, Castro testified that he was born in Mexico and that he had never been legally admitted to, or authorized to work in, the United States. 314 N. L. R. B. 683, 685 (1994). He admitted gaining employment with Hoffman only after tendering a birth certificate belonging to a friend who was born in Texas. Ibid. He also admitted that he used this birth certificate to fraudulently obtain a California driver’s license and a Social Security card, and to fraudulently obtain employment following his layoff by Hoffman. Ibid. Neither Castro nor the Board’s General Counsel offered any evidence that Castro had applied or intended to apply for legal authorization to work in the United States. Ibid. Based on this testimony, the ALJ found the Board precluded from awarding Castro backpay or reinstatement as such relief would be contrary to Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984), and in conflict with IRC A, which makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. 314 N. L. R. B., at 685-686.

In September 1998, four years after the ALJ’s decision, and nine years after Castro was fired, the Board reversed with respect to backpay. 326 N. L. R. B. 1060. Citing its earlier decision in A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408 (1995), the Board determined that “the most effective way to accommodate and further the immigration policies embodied in [IRCA] is to provide the protections and remedies of the [NLRA] to undocumented workers in the same manner as to other employees.” 326 N. L. R. B., at 1060. The Board thus found that Castro was entitled to *142$66,951 of backpay, plus interest. Id., at 1062. It calculated this backpay award from the date of Castro’s termination to the date Hoffman first learned of Castro’s undocumented status, a period of AVz years. Id., at 1061. A dissenting Board member would have affirmed the ALJ and denied Castro all backpay. Id., at 1062 (opinion of Hurtgen).

Hoffman filed a petition for review of the Board’s order in the Court of Appeals. A panel of the Court of Appeals denied the petition for review. 208 F. 3d 229 (CADC 2000). After rehearing the case en banc, the court again denied the petition for review and enforced the Board’s order. 237 F. 3d 639 (2001). We granted certiorari, 533 U. S. 976 (2001), and now reverse.2

This case exemplifies the principle that the Board’s discretion to select and fashion remedies for violations of the NLRA, though generally broad, see, e. g., NLRB v. Seven-Up Bottling Co. of Miami, Inc., 344 U. S. 344, 346-347 (1953), is *143not unlimited, see, e. g., NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240, 257-258 (1939); Southern S. S. Co. v. NLRB, 316 U. S. 31, 46-47 (1942); NLRB v. Bildisco & Bildisco, 465 U. S. 513, 532-534 (1984); Sure-Tan, Inc. v. NLRB, supra, at 902-904. Since the Board’s inception, we have consistently set aside awards of reinstatement or backpay to employees found guilty of serious illegal conduct in connection with their employment. In Fansteel, the Board awarded reinstatement with backpay to employees who engaged in a “sit down strike” that led to confrontation with local law enforcement officials. We set aside the award, saying:

“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property, which they would not have enjoyed had they remained at work.” 306 U. S., at 255.

Though we found that the employer had committed serious violations of the NLRA, the Board had no discretion to remedy those violations by awarding reinstatement with back-pay to employees who themselves had committed serious criminal acts. Two years later, in Southern S. S. Co., supra, the Board awarded reinstatement with backpay to five employees whose strike on shipboard had amounted to a mutiny in violation of federal law. We set aside the award, saying:

“It is sufficient for this case to observe that the Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important [congressional objectives.” 316 U. S., at 47.

Although the Board had argued that the employees’ conduct did not in fact violate the federal mutiny statute, we rejected this view, finding the Board’s interpretation of a statute so *144far removed from its expertise merited no deference from this Court. Id., at 40-46. Since Southern S. S. Co., we have accordingly never deferred to the Board’s remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA. Thus, we have precluded the Board from enforcing orders found in conflict with the Bankruptcy Code, see Bildisco, supra, at 527-534, 529, n. 9 (“While the Board’s interpretation of the NLRA should be given some deference, the proposition that the Board’s interpretation of statutes outside its expertise is likewise to be deferred to is novel”), rejected claims that federal antitrust policy should defer to the NLRA, Connell Constr. Co. v. Plumbers, 421 U. S. 616, 626 (1975), and precluded the Board from selecting remedies pursuant to its own interpretation of the Interstate Commerce Act, Carpenters v. NLRB, 357 U. S. 93, 108-110 (1958).

Our decision in Sure-Tan followed this line of cases and set aside an award closely analogous to the award challenged here. There we confronted for the first time a potential conflict between the NLRA and federal immigration policy, as then expressed in the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. Two companies had unlawfully reported alien-employees to the Immigration and Naturalization Service (INS) in retaliation for union activity. Rather than face INS sanction, the employees voluntarily departed to Mexico. The Board investigated and found the companies acted in violation of §§ 8(a)(1) and (3) of the NLRA. The Board’s ensuing order directed the companies to reinstate the affected workers and pay them six months’ backpay.

We affirmed the Board’s determination that the NLRA applied to undocumented workers, reasoning that the immigration laws “as presently written” expressed only a “ ‘peripheral concern’” with the employment of illegal aliens. 467 U. S., at 892 (quoting De Canas v. Bica, 424 U. S. 351, 360 (1976)). “For whatever reason,” Congress had not “made it *145a separate criminal offense” for employers to hire an illegal alien, or for an illegal alien “to accept employment after entering this country illegally.” Sure-Tan, 467 U. S., at 892-893. Therefore, we found “no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the INA.” Id., at 893.

With respect to the Board’s selection of remedies, however, we found its authority limited by federal immigration policy. See id., at 903 (“In devising remedies for unfair labor practices, the Board is obliged to take into account another ‘equally important Congressional objective’ ” (quoting Southern S. S. Co., supra, at 47)). For example, the Board was prohibited from effectively rewarding a violation of the immigration laws by reinstating workers not authorized to reenter the United States. Sure-Tan, 467 U. S., at 903. Thus, to avoid “a potential conflict with the INA,” the Board’s reinstatement order had to be conditioned upon proof of “the employees’ legal reentry.” Ibid. “Similarly,” with respect to backpay, we stated: “[T]he employees must be deemed ‘unavailable’ for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.” Ibid. “[I]n light of the practical workings of the immigration laws,” such remedial limitations were appropriate even if they led to “[t]he probable unavailability of the [NLRA’s] more effective remedies.” Id., at 904.

The Board cites our decision in ABF Freight System, Inc. v. NLRB, 510 U. S. 317 (1994), as authority for awarding backpay to employees who violate federal laws. In ABF Freight, we held that an employee’s false testimony at a compliance proceeding did not require the Board to deny reinstatement with backpay. The question presented was “a narrow one,” id., at 322, limited to whether the Board was obliged to “adopt a rigid rule” that employees who testify falsely under oath automatically forfeit NLRA remedies, id., *146 at 325. There are significant differences between that case and this. First, we expressly did not address whether the Board could award backpay to an employee who engaged in “serious misconduct” unrelated to internal Board proceedings, id., at 322, n. 7, such as threatening to kill a supervisor, ibid, (citing Precision Window Mfg. v. NLRB, 963 F. 2d 1105, 1110 (CA8 1992)), or stealing from an employer, 510 U. S., at 322, n. 7 (citing NLRB v. Commonwealth Foods, Inc., 506 F. 2d 1065, 1068 (CA4 1974)). Second, the challenged order did not implicate federal statutes or policies administered by other federal agencies, a “most delicate area” in which the Board must be “particularly careful in its choice of remedy.” Burlington Truck, Lines, Inc. v. United States, 371 U. S. 156, 172 (1962). Third, the employee misconduct at issue, though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal under explicit provisions of federal law. See,’ e. g., 237 F 3d, at 657, n. 2 (Sentelle, J., dissenting) (“The perjury statute provides for criminal sanctions; it does not forbid a present or potential perjurer from obtaining a job” (distinguishing ABF Freight)). For these reasons, we believe the present case is controlled by the Southern S. S. Co. line of cases, rather than by ABF Freight.

It is against this decisional background that we turn to the question presented here. The parties and the lower courts focus much of their attention on Sure-Tan, particularly its express limitation of backpay to aliens “lawftilly entitled to be present and employed in the United States.” 467 U. S., at 903. All agree that as a matter of plain language, this limitation forecloses the award of backpay to Castro. Castro was never lawfully entitled to be present or employed in the United States, and thus, under the plain language of Sure-Tan, he has no right to claim backpay. The Board takes the view, however, that read in context, this limitation applies only to aliens who left the United States and thus cannot claim backpay without lawful reentry. Brief for Re*147spondent 17-24. The Court of Appeals agreed with this view. 237 F. 3d, at 642-646. Another Court of Appeals, however, agrees with Hoffman, and concludes that Sure-Tan simply meant what it said, i. e., that any alien who is “not lawfully entitled to be present and employed in the United States” cannot claim backpay. See Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d 1115, 1118-1121 (CA7 1992); Brief for Petitioner 7-20. We need not resolve this controversy. For whether isolated sentences from Sure-Tan definitively control, or count merely as persuasive dicta in support of petitioner, we think the question presented here better analyzed through a wider lens, focused as it must be on a legal landscape now significantly changed.

The Southern S. S. Co. line of cases established that where the Board’s chosen remedy trenches upon a federal statute or policy outside the Board’s competence to administer, the Board’s remedy may be required to yield. Whether or not this was the situation at the time of Sure-Tan, it is precisely the situation today. In 1986, two years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. § 101(a)(1), 100 Stat. 3360, 8 U. S. C. § 1324a. As we have previously noted, IRCA “forcefully” made combating the employment of illegal aliens central to “[t]he policy of immigration law.” INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 194, and n. 8 (1991). It did so by establishing an extensive “employment verification system,” § 1324a(a)(l), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3)3 This verification system is critical to the *148IRCA regime. To enforce it, IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. §1324a(b). If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired. § 1324a(a)(l).

Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker’s undocumented status. § 1324a(a)(2). Employers who violate IRCA are punished by civil fines, § 1324a(e)(4)(A), and may be subject to criminal prosecution, § 1324a(f)(l). IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents. § 1324c(a). It thus prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor” for purposes of obtaining employment in the United States. §§ 1324c(a)(l)-(3). Aliens who use or attempt to use such documents are subject to fines and criminal prosecution. 18 U. S. C. § 1546(b). There is no dispute that Castro’s use of false documents to obtain employment with Hoffman violated these provisions.

Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations. The Board asks that we overlook this *149fact and allow it to award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or administer. Therefore, as we have consistently held in like circumstances, the award lies beyond the bounds of the Board’s remedial discretion.

The Board contends that awarding limited backpay to Castro “reasonably accommodates” IRCA, because, in the Board’s view, such an award is not “inconsistent” with IRCA. Brief for Respondent 29-42. The Board argues that because the backpay period was closed as of the date Hoffman learned of Castro’s illegal status, Hoffman could have employed Castro during the backpay period without violating IRCA. Id., at 37. The Board further argues that while IRCA criminalized the misuse of documents, “it did not make violators ineligible for back pay awards or other compensation flowing from employment secured by the misuse of such documents.” Id., at 38. This latter statement, of course, proves little: The mutiny statute in 'Southern S. S. Co., and the INA in Sure-Tan, were likewise understandably silent with respect to such things as backpay awards under the NLRA. What matters here, and what sinks both of the Board’s claims, is that Congress has expressly made it criminally punishable for an alien to obtain employment with false documents. There is no reason to think that Congress nonetheless intended to permit backpay where but for an employer’s unfair labor practices, an alien-employee would have remained in the United States illegally, and continued to work illegally, all the while successfully evading apprehension by immigration authorities.4 Far from “accommo*150dating” IRCA, the Board’s position, recognizing employer misconduct but discounting the misconduct of illegal alien employees, subverts it.

Indeed, awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations. The Board admits that had the INS detained Castro, or had Castro obeyed the law and departed to Mexico, Castro would have lost his right to backpay. See Brief for Respondent 7-8 (citing A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B., at 416). Cf. INS v. National Center for Immigrants’ Rights, Inc., 502 U. S., at 196, n. 11 (“[Undocumented aliens taken into custody are not entitled to work”) (construing 8 CFR § 103.6(a) (1991)). Castro thus qualifies for the Board’s award only by remaining inside the United States illegally. See, e. g., A. P. R. A. Fuel Buyers Group, 134 F. 3d, at 62, n. 4 (Jacobs, J., concurring in part and dissenting in part) (“Considering that NLRB proceedings can span a whole decade, this is no small inducement to prolong illegal presence in the country”). Similarly, Castro cannot mitigate damages, a duty our cases require, see Sure- *151Tan, 467 U. S., at 901 (citing Seven-Up Bottling, 344 U. S., at 346; Phelps Dodge Corp. v. NLRB, 313 U. S. 177,198 (1941)), without triggering new IRCA violations, either by tendering false documents to employers or by finding employers willing to ignore IRCA and hire illegal workers. The Board here has failed to even consider this tension. See 326 N. L. R. B., at 1063, n. 10 (finding that Castro adequately mitigated damages through interim work with no mention of ALJ findings that Castro secured interim work with false documents).5

We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to *152fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award.

Lack of authority to award backpay does not mean that the employer gets off scot-free. The Board here has already imposed other significant sanctions against Hoffman — sanctions Hoffman does not challenge. See supra, at 140. These include orders that Hoffman cease and desist its violations of the NLRA, and that it conspicuously post a notice to employees setting forth their rights under the NLRA and detailing its prior unfair practices. 306 N. L. R. B., at 100-101. Hoffman will be subject to contempt proceedings should it fail to comply with these orders. NLRB v. Warren Co., 350 U. S. 107, 112-113 (1955) (Congress gave the Board civil contempt power to enforce compliance with the Board’s orders). We have deemed such “traditional remedies” sufficient to effectuate national labor policy regardless of whether the “spur and catalyst” of backpay accompanies them. Sure-Tan, 467 U. S., at 904. See also id., at 904, n. 13 (“This threat of contempt sanctions ... provides a significant deterrent against future violations of the [NLRA]”). As we concluded in Sure-Tan, “in light of the practical workings of the immigration laws,” any “perceived defieienc[y] in the NLRA’s existing remedial arsenal” must be “addressed by congressional action,” not the courts. Id., at 904. In light of IRCA, this statement is even truer today.6

The judgment of the Court of Appeals is reversed.

It is so ordered.

The Courts of Appeals have divided on the question whether the Board may award backpay to undocumented workers. Compare NLRB v. A. P. R. A. Fuel Oil Buyers Group, Inc., 134 F. 3d 50, 56 (CA2 1997) (holding that illegal workers could collect backpay under the NLRA), and Local 512, Warehouse and Office Workers’ Union v. NLRB, 795 F. 2d 705, 719-720 (CA9 1986) (same), with Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d 1115, 1121-1122 (CA7 1992) (holding that illegal workers could not collect backpay under the NLRA). The question has a checkered career before the Board, as well. Compare Felbro, Inc., 274 N. L. R. B. 1268, 1269 (1985) (illegal workers could not be awarded backpay in light of Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984)), with A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408, 415 (1995) (illegal workers could be awarded backpay notwithstanding Sure-Tan)-, Memorandum GC 87-8 from Office of General Counsel, NLRB, The Impact of the Immigration Reform and Control Act of 1986 on Board Remedies for Undocumented Discriminatees, 1987 WL 109409 (Oct. 27, 1988) (stating Board policy that illegal workers could not be awarded backpay in light of IRCA), with Memorandum GC 98-15 from Office of General Counsel, NLRB, Reinstatement and Backpay Remedies for Discriminatees Who May Be Undocumented Aliens In Light of Recent Board and Court Precedent, 1998 WL 1806350 (Dec. 4, 1998) (stating Board policy that illegal workers could be awarded backpay notwithstanding IRCA).

Justice Breyer contends otherwise, pointing to a single Committee Report from one House of a politically divided Congress, post, at 157 (dissenting opinion) (citing H. R. Rep. No. 99-682, pt. 1 (1986)), which is a *150rather slender reed, e. g., Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279 (1996) (Scaua, J., concurring in part and concurring in judgment). Even assuming that a Committee Report can shed light on what Congress intended in IRCA, the Report cited by Justice Breyer says nothing about the Board’s authority to award backpay to illegal aliens. The Board in fact initially read the Report as stating Congress’ view that such awards are foreclosed. Memorandum GC 88-9 from Office of General Counsel, NLRB, Reinstatement and Backpay Remedies for Discriminatees Who Are “Undocumented Aliens,” 1988 WL 236182, *3 (Sept. 1, 1988) (“[T]he relevant committee report points out [that] Sure-Tan was the existing law and that decision itself limited the remedial powers of the NLRB. Clearly, Congress did not intend to overrule Sure-Tan”). Other courts have observed that the Report “merely endorses the first holding of Sure-Tan that undocumented aliens are employees within the meaning of the NLRA.” Del Rey Tortilleria, Inc., 976 F. 2d, at 1121 (citation omitted). Our first holding in Sure-Tan is not at issue here and does not bear at all on the scope of Board remedies with respect to undocumented workers.

When questioned at oral argument about the tension between affirmative mitigation duties under the NLRA and explicit prohibitions against employment of illegal aliens in IRCA, the Government candidly stated: “[T]he board has not examined this issue in detail.” Tr. of Oral Arg. 32. Justice Breyer says that we should nonetheless defer to the Government’s view that the Board’s remedy is entirely consistent with IRCA. Post, at 161 (dissenting opinion). But such deference would be contrary to Southern S. S. Co. v. NLRB, 316 U. S. 31, 40-46 (1942), where the Government told us that the Board’s remedy was entirely consistent with the federal maritime laws, and NLRB v. Bildisco & Bildisco, 465 U. S. 513, 529-532 (1984), where the Government told us that the Board’s remedy was entirely consistent with the Bankruptcy Code, and Sure-Tan, 467 U. S., at 892-894,902-905, where the Government told us that the Board’s remedy was entirely consistent with the INA. See also Carpenters v. NLRB, 357 U. S. 93, 108-110 (1958) (rejecting Government position that we should defer to the Board’s interpretation of the Interstate Commerce Act). We did not defer to the Government’s position in any of these cases, and there is even less basis for doing so here since IRCA — unlike the maritime statutes, the Bankruptcy Code, or the INA — not only speaks directly to matters of employment but expressly criminalizes the only employment relationship at issue in this case.

Because the Board is precluded from imposing punitive remedies, Republic Steel Corp. v. NLRB, 311 U. S. 7, 9-12 (1940), it is an open question whether awarding backpay to undocumented aliens, who have no entitlement to work in the United States at all, might constitute a prohibited punitive remedy against an employer. See Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d, at 1119 (finding that undocumented workers discharged in violation of the NLRA have not been harmed in a legal sense and should not be entitled to backpay, because the “ ‘award provisions of the NLRA are remedial, not punitive, in nature, and thus should be awarded only to *153those individuals who have suffered harm’”) (quoting Local 512, Warehouse and Office Workers Union v. NLRB, 795 F. 2d, at 725 (Beezer, J., dissenting in part)). Because we find the remedy foreclosed on other grounds, we do not address whether the award at issue here is “ ‘punitive’ and hence beyond the authority of the Board.” Sure-Tan, supra, at 905, n. 14.

*153Justice Breyer,

with whom Justice Stevens, Justice Souter, and Justice Ginsburg join,

dissenting.

I cannot agree that the backpay award before us “runs counter to,” or “trenches upon,” national immigration policy. Ante, at 147,149 (citing the Immigration Reform and Control Act of 1986 (IRCA)). As all the relevant agencies (including the Department of Justice) have told us, the National Labor Relations Board’s limited backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent. Consequently, the order is lawful. See ante, at 142 (recognizing “broad” scope of Board’s remedial authority).

* * *

The Court does not deny that the employer in this case dismissed an employee for trying to organize a union — a crude and obvious violation of the labor laws. See 29 U. S. C. § 158(a)(3) (1994 ed.); NLRB v. Transportation Management Corp., 462 U. S. 393,398 (1983). And it cannot deny that the Board has especially broad discretion in choosing an appropriate remedy for addressing such violations. NLRB v. Gissel Packing Co., 395 U. S. 575, 612, n. 32 (1969) (Board “draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts”). Nor can it deny that in such circumstances backpay awards serve critically important remedial purposes. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258, 263 (1969). Those purposes involve more than victim compensation; they also include deterrence, i. e., discouraging *154employers from violating the Nation’s labor laws. See ante, at 152 (recognizing the deterrent purposes of the National Labor Relations Act (NLRA)); Sure-Tan, Inc. v. NLRB, 467 U. S. 888, 904, n. 13 (1984) (same).

Without the possibility of the deterrence that backpay provides, the Board can impose only future-oriented obligations upon law-violating employers — for it has no other weapons in its remedial arsenal. Ante, at 152. And in the absence of the backpay weapon, employers could conclude that they can violate the labor laws at least once with impunity. See A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408, 415, n. 38 (1995) (without potential backpay order employer might simply discharge employees who show interest in a union “secure in the knowledge” that only penalties were requirements “to cease and desist and post a notice”); cf. Golden State Bottling Co. v. NLRB, 414 U. S. 168, 185 (1973); cf. also EEOC v. Waffle House, Inc., 534 U. S. 279, 296, n. 11 (2002) (backpay award provides important incentive to report illegal employer conduct); Albemarle Paper Co. v. Moody, 422 U. S. 405, 417-418 (1975) (“It is the reasonably certain prospect of a backpay award” that leads employers to “shun practices of dubious legality”). Hence the backpay remedy is necessary; it helps make labor law enforcement credible; it makes clear that violating the labor laws will not pay.

Where in the immigration laws can the Court find a “policy” that might warrant taking from the Board this critically important remedial power? Certainly not in any statutory language. The immigration statutes say that an employer may not knowingly employ an illegal alien, that an alien may not submit false documents, and that the employer must verify documentation. See 8 U. S. C. §§ 1324a(a)(l), 1324a(b); 18 U. S. C. § 1546(b)(1). They provide specific penalties, including criminal penalties, for violations. Ibid.; 8 U. S. C. §§ 1324a(e)(4), 1324a(f)(l). But the statutes’ language itself doe's not explicitly state how a violation is to effect the en*155forcement of other laws, such as the labor laws. What is to happen, for example, when an employer hires, or an alien works, in violation of these provisions? Must the alien forfeit all pay earned? May the employer ignore the labor laws? More to the point, may the employer violate those laws with impunity, at least once — secure in the knowledge that the Board cannot assess a monetary penalty? The immigration statutes’ language simply does not say.

Nor can the Court comfortably rest its conclusion upon the immigration laws’ purposes. For one thing, the general purpose of the immigration statute’s employment prohibition is to diminish the attractive force of employment, which like a “magnet” pulls illegal immigrants toward the United States. H. R. Rep. No. 99-682, pt. 1, p. 45 (1986). To permit the Board to award backpay could not significantly increase the strength of this magnetic force, for so speculative a future possibility could not realistically influence an individual’s decision to migrate illegally. See A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 410-415 (no significant influence from so speculative a factor); Patel v. Quality Inn South, 846 F. 2d 700, 704 (CA11 1988) (aliens enter the country “in the hope of getting a job,” not gaining “the protection of our labor laws”); Peterson v. Neme, 222 Va. 477, 482, 281 S. E. 2d 869, 872 (1981) (same); Arteaga v. Literski, 83 Wis. 2d 128, 132, 265 N. W. 2d 148, 150 (1978) (same); H. R. Rep. No. 99-682, at 45 (same).

To deny the Board the power to award backpay, however, might very well increase the strength of this magnetic force. That denial lowers the cost to the employer of an initial labor law violation (provided, of course, that the only victims are illegal aliens). It thereby increases the employer’s incentive to find and to hire illegal-alien employees. Were the Board forbidden to assess backpay against a knowing employer — a circumstance not before us today, see 237 F. 3d 639, 648 (CADC 2001) — this perverse economic incentive, which runs directly contrary to the immigration statute’s basic objective, *156would be obvious and serious. But even if limited to cases where the employer did not know of the employee’s status, the incentive may prove significant — for, as the Board has told us, the Court’s rule offers employers immunity in borderline cases, thereby encouraging them to take risks, i. e., to hire with a wink and a nod those potentially unlawful aliens whose unlawful employment (given the Court’s views) ultimately will lower the costs of labor law violations. See Brief for Respondent 30-32; Tr. of Oral Arg. 41, 47; cf. also General Accounting Office, Garment Industry: Efforts to Address the Prevalence and Conditions of Sweatshops 8 (GAO/ HEHS-95-29, Nov. 1994) (noting a higher incidence of labor violations in areas with large populations of undocumented aliens). The Court has recognized these considerations in stating that the labor laws must apply to illegal aliens in order to ensure that “there will be no advantage under the NLRA in preferring illegal aliens” and therefore there will be “fewer incentives for aliens themselves to enter.” Sure-Tan, supra, at 893-894. The Court today accomplishes the precise opposite.

The immigration law’s specific labor-law-related purposes also favor preservation, not elimination, of the Board’s back-pay powers. See A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 414 (immigration law seeks to combat the problem of aliens’ willingness to “work in substandard conditions and for starvation wages”); cf. also Sure-Tan, 467 U. S., at 893 (“[E]nforcement of the NLRA ... is compatible with the policies” of the Immigration and Nationality Act). As I just mentioned and as this Court has held, the immigration law foresees application of the Nation’s labor laws to protect “workers who are illegal immigrants.” Id., at 891-893; H. R. Rep. No. 99-682, at 58. And a policy of applying the labor laws must encompass a policy of enforcing the labor laws effectively. Otherwise, as Justice Kennedy once put the matter, “we would leave helpless the very persons who most need protection from exploitative employer practices.” *157 NLRB v. Apollo Tire Co., 604 F. 2d 1180, 1184 (CA9 1979) (concurring opinion). That presumably is why those in Congress who wrote the immigration statute stated explicitly and unequivocally that the immigration statute does not take from the Board any of its remedial authority. H. R. Rep. No. 99-682, at 58 (IRCA does not “undermine or diminish in any way labor protections in existing law, or . . . limit the powers of federal or state labor relations boards ... to remedy unfair practices committed against undocumented employees”).

Neither does precedent help the Court. Indeed, in ABF Freight System, Inc. v. NLRB, 510 U. S. 317 (1994), this Court upheld an award of backpay to an unlawfully discharged employee guilty of a serious crime, namely, perjury committed during the Board’s enforcement proceedings. Id., at 323. See also id., at 326-331 (Scalia, J., concurring in judgment while stressing seriousness of misconduct). The Court unanimously held that the Board retained “broad discretion” to remedy the labor law violation through a back-pay award, while leaving enforcement of the criminal law to ordinary perjury-related civil and criminal penalties. See id., at 325; see also 18 U. S. C. § 1621 (criminal penalties for perjury).

The Court, trying to distinguish ABF Freight, says that the Court there left open “whether the Board could award backpay to an employee who engaged in ‘serious misconduct’ unrelated to internal Board proceedings.” Ante, at 146. But the Court does not explain why (assuming misconduct of equivalent seriousness) lack of a relationship to Board proceedings matters, nor why the Board should have to do more than take that misconduct into account — as it did here. 326 N. L. R. B. 1060,1060-1062 (1998) (thoroughly discussing relevance of immigration policies); see also A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B., at 412-414 (same). The Court adds that the Board order in ABF Freight “did not implicate federal statutes or policies administered by other *158federal agencies.” Ante, at 146. But it does not explain why this matters when, as here, the Attorney General, whose Department — through the Immigration and Naturalization Service — administers the immigration statutes, supports the Board’s order. Nor does it explain why the perjury statute at issue in ABF Freight was not a “statute . .. administered by” another “agenc[y].” See 510 U. S., at 329 (Scalia, J., concurring in judgment) (noting Department of Justice officials’ responsibility for prosecuting perjury).

The Court concludes that the employee misconduct at issue in ABF Freight, “though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal.” Ante, at 146. But this conclusion rests upon an implicit assumption — the assumption that the immigration laws’ ban on employment is not compatible with a backpay award. And that assumption, as I have tried to explain, is not justified. See supra, at 155-157.

At the same time, the two earlier cases upon which the Court relies, NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), and Southern S. S. Co. v. NLRB, 316 U. S. 31, 47 (1942), offer little support for its conclusion. The Court correctly characterizes both cases as ones in which this Court set aside the Board’s remedy (more specifically, reinstatement). Ante, at 142-144. But the Court does not focus upon the underlying circumstances — which in those cases were very different from the circumstances present here. In both earlier cases, the employer had committed an independent unfair labor practice — in the one by creating a company union, Fansteel, supra, at 250, in the other by refusing to recognize the employees’ elected representative, Southern S. S. Co., supra, at 32-36, 48-49. In both cases, the employees had responded with unlawful acts of their own — a sit-in and a mutiny. Fansteel, supra, at 252; Southern S. S. Co., supra, at 48. And in both cases, the Court held that the employees’ own unlawful conduct provided the employer with “good cause” for discharge, severing any con*159nection to the earlier unfair labor practice that might otherwise have justified reinstatement and backpay. Fansteel, supra, at 254-259; Southern S. S. Co., supra, at 47-49.

By way of contrast, the present case concerns a discharge that was not for “good cause.” The discharge did not sever any connection with an unfair labor practice. Indeed, the discharge was the unfair labor practice. Hence a determination that backpay was inappropriate in the former circumstances (involving a justifiable discharge) tells us next to nothing about the appropriateness as a legal remedy in the latter (involving an mjustifiable discharge), the circumstances present here.

The Court also refers to the statement in Sure-Tan, Inc. v. NLRB, 467 U. S., at 903, that “employees must be deemed 'unavailable’ for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.” The Court, however, does not rely upon this statement as determining its conclusion. See ante, at 146-147. And it is right not to do so. See Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979) (“[Ljanguage of an opinion” must be “read in context” and not “parsed” like a statute). Sure-Tan involved an order reinstating (with backpay) illegal aliens who had left the country and returned to Mexico. 467 U. S., at 888-889. In order to collect the backpay to which the order entitled them, the aliens would have had to reenter the country illegally. Consequently, the order itself could not have been enforced without leading to a violation of criminal law. Id., at 903. Nothing in the Court’s opinion suggests that the Court intended its statement to reach to circumstances different from and not at issue in Sure-Tan, where an order, such as the order before us, does not require the alien to engage in further illegal behavior.

Finally, the Court cannot reasonably rely upon the award’s negative features taken together. The Court summarizes those negative features when it says that the Board “asks *160that we ... award backpay to an illegal alien [1] for years of work not performed, [2] for wages that could not lawfully have been earned, and [3] for a job obtained in the first instance by a criminal fraud.” Ante, at 148-149. The first of these features has little persuasive force, given the facts that (1) backpay ordinarily and necessarily is awarded to a discharged employee who may not find other work, and (2) the Board is able to tailor an alien’s backpay award to avoid rewarding that alien for his legal inability to mitigate damages by obtaining lawful employment elsewhere. See, e. g., Sure-Tan, supra, at 901-902, n. 11 (basing backpay on “representative employee”); A. P. R. A. Fuel, 320 N. L. R. B., at 416 (providing backpay for reasonable period); 326 N. L. R. B., at 1062 (cutting off backpay when employer learned of unlawful status).

Neither can the remaining two features — unlawfully earned wages and criminal fraud — prove determinative, for they tell us only a small portion of the relevant story. After all, the same backpay award that compensates an employee in the circumstances the Court describes also requires an employer who has violated the labor laws to make a meaningful monetary payment. Considered from this equally important perspective, the award simply requires that employer to pay an employee whom the employer believed could lawfully have worked in the United States, (1) for years of work that he would have performed, (2) for a portion of the wages that he would have earned, and (3) for a job that the employee would have held — had that employer not unlawfully dismissed the employee for union organizing. In ignoring these latter features of the award, the Court undermines the public policies that underlie the Nation’s labor laws.

Of course, the Court believes it is necessary to do so in order to vindicate what it sees as conflicting immigration law policies. I have explained why I believe the latter policies do not conflict. See supra, at 155-157. But even were I wrong, the law requires the Court to respect the Board’s *161conclusion, rather than to substitute its own independent view of the matter for that of the Board. The Board reached its conclusion after carefully considering both labor law and immigration law. 326 N. L. R. B., at 1060-1062; see A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 412-414. In doing so the Board has acted “with a discriminating awareness of the consequences of its action” on the immigration laws. Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 174 (1962). The Attorney General, charged with immigration law enforcement, has told us that the Board is right. See 8 U. S. C. § 1324a(e) (Immigration and Naturalization Service placed within the Department of Justice, under authority of Attorney General who is charged with responsibility for immigration law enforcement); cf. United States v. Mead Corp., 533 U. S. 218, 258-259, n. 6 (2001) (Scalia, J., dissenting) (Solicitor General’s statements represent agency’s position); Jean v. Nelson, 472 U. S. 846, 856, and n. 3 (1985) (agency’s position with respect to its regulation during litigation “arrives with some authority”). And the Board’s position is, at the least, a reasonable one. Consequently, it is lawful. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984) (requiring courts to uphold reasonable agency position).

For these reasons, I respectfully dissent.

8.4 Thryv, Inc., 372 NLRB No. 22 (2022) 8.4 Thryv, Inc., 372 NLRB No. 22 (2022)

In Thryv, Inc., the Board set forth a new standard for determining whether victims of unfair labor pratices are entitled to make-whole relief for "direct or forseeable pecuniary harms" suffered due to the respondent's unlawful activity.

Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269. Cases 20–CA–250250 and 20–CA–251105

December 13, 2022

DECISION AND ORDER

By Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty

On April 23, 2021, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Charging Party and Acting General Counsel each filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The Respondent filed cross-exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions[1] only to the extent consistent with this Decision and Order.[2]

The issue presented before us on the merits is whether the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). We agree with the judge’s determination that the Respondent violated the Act by failing and refusing to respond to information requests advanced by the Charging Party, International Brotherhood of Electrical Workers, Local 1269 (IBEW or the Union). Contrary to the judge, however, we find that the Respondent also violated Section 8(a)(5) and (1) of the Act by unilaterally laying off six employees in violation of the statutory duty to bargain.

We next examine the proper scope of the Board’s make-whole relief. Where, as here, our standard remedy would include an order for make-whole relief, we find it necessary to ensure that affected employees are made fully whole for the costs they incur as a result of the respondent’s unlawful actions. Accordingly, to best effectuate the purposes of the Act, our make whole-whole remedy shall expressly order respondents to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s unfair labor practice.

Background

The Respondent, Thryv, Inc., operates a marketing agency engaged in the business of selling Yellow Pages advertising, as well its eponymous product “Thryv,” an application for small businesses. While all parties agree that Yellow Pages advertising has increasingly declined since the advent of the Internet, the Respondent still generates annual revenues in excess of $1.1 billion, with print and electronic advertising accounting for 88 percent of that amount.

The Union represents a unit of employees that includes the Respondent’s outside sales force, which in turn consists of three subsets of “premise” representatives, so named because they go to customer premises to solicit advertising sales. These premise representatives consist of Senior Business Advisors (SBAs), who handle high-value clients, Business Advisors (BAs), who handle medium-value clients, and New Business Advisors (NBAs),^[3] who solicit new clients for the Respondent. Small accounts are handled by the Respondent’s “inside” sales force of nonunit advertising agents. The markets assigned to the Senior Business Advisors, Business Advisors, and New Business Advisors are called “channels,” with a Senior Business Advisor channel, a Business Advisor channel, and a New Business Advisor channel, respectively.

Around mid-July of 2019,^[4] the Respondent began implementing its proposal to lay off all of its New Business Advisors in the Northern California Region. On July 18, Assistant Vice President of Human Resources Lisa O’Toole, Chief Human Resources Officer Deb Ryan, and Assistant Vice President of Labor Relations Beth Dickson discussed via email whether the Respondent could “keep the good ones,” with Dickson cautioning that the Respondent needed to transfer these “good” New Business Advisors into roles as Business Advisors before the layoff, so that the Respondent could “call it a channel elimination.” Around this time, the Respondent transferred two former managerial employees, Luis Pantoja and Marlon McConner, from their positions as New Business Advisors into new positions as Business Advisors.

Shortly thereafter, on August 21, Dickson emailed the Union stating that the Respondent “will administer a force adjustment” and lay off the six New Business Advisors in the Northern California Region effective September 20. The email stated, “[i]f the Union desires to exercise its right to meet and discuss the Company’s plan within the 30-day period, please contact [Labor Relations Manager] Ralph Vitales to arrange such discussions.”

The Union contacted Vitales the following day, and after proposing various dates, the parties agreed to meet and bargain on September 11 and 12. However, before the scheduled bargaining sessions, the Respondent moved forward with implementing its plan to lay off the six affected employees. On September 5, the Respondent sent union officials notice that the following day it would inform employees of the layoff. Vitales stated in this email that the Respondent would still be available on September 11 and 12 “to bargain the effects of this force reduction” (emphasis added). On September 6, the Respondent held a virtual meeting with some of the New Business Advisors. During the meeting, Regional Vice President Terry Henshaw told the assembled employees that the Respondent organized the meeting to “officially notify you that we are eliminating our Northern California DSE [New Business Advisor] Channel,” that these “positions will be eliminated effective September 20, 2019,” and that the Respondent had already sent severance packages to all six affected employees via overnight mail.

The Union and Respondent first met to discuss the layoff of the New Business Advisors on September 11. During the bargaining, Union Local President Stefen Guthrieasked Vitales for a proposal regarding the layoffs. Vitales responded that Article 30 of the Respondent’s Last, Best, and Final Offer (LBFO) served as the Respondent’s proposal.^[5] Guthrie asked about available jobs with the Respondent into which the affected employees could transition. Guthrie also asked the Respondent to provide an “audit trail” for all the accounts assigned to New Business Advisors, an industry term-of-art understood by the parties to encompass “assignments, customer names, locations, addresses, records, advertising revenue, commissions, items of advertising, and a listing of the sales representative of record.” Finally, Guthrie requested the work market location for each of the six employees that the Respondent was proposing to lay off.

Guthrie then proposed that the Respondent absorb all the New Business Advisors into the Business Advisor title, as envisioned by the language of the LBFO.^[6] Vitales stated that there was insufficient revenue to transfer all the New Business Advisors into Business Advisor positions, and Guthrie proposed that the layoffs be suspended so that the parties could discuss the issue.^[7] Vitales responded that the layoffs would not be rescinded. Guthrie asked how the Union was expected to bargain, and Vitales asked what the Union needed, to which Guthrie responded: “client base.” In a subsequent September 11 email, Guthrie told the Respondent it had “an obligation to meet with the Union specifically but not limited to how and when we would absorb New Business Advisor Premise into [the Business Advisor position]” and asked the Respondent to “[e]ffective immediately rescind all Force Adjustment Notification(s) to Bargaining unit employees . . .”

The parties subsequently met on September 12 to bargain the layoff decision. The Respondent’s bargaining notes for this session are titled “Bargaining Force Adjustment of DSEs [NBAs] in N.CA . . .” During this meeting, Guthrie asked for the parties to figure out how to integrate the New Business Advisors into another bargaining unit position, to which Beth Dickson replied: “The channel is not performing. Their numbers are too low.” Guthrie noted that “[t]he company had information and we didn’t have a meeting to see how we could absorb these people into the BA role. We have not had the benefit of this information.”

On September 16, Guthrie sent an email stating that under the LBFO the New Business Advisors should be absorbed into the bargaining unit as Business Advisors. Guthrie reiterated his request for information about the work market locations of the six laid-off employees, citing that Article 30 of the LBFO required the Respondent to provide this information. On September 20, the Respondent implemented its decision and formally laid off the six New Business Advisors.

The parties met again on October 3, after the implementation of the layoffs. During the meeting, Guthrie explained that the Union’s request for information regarding the employees’ work locations was important because although all of the Premise Representatives worked remotely, their base pay was determined by the market to which they were assigned. This information was necessary for the Union “to evaluate what market” was assigned to the New Business Advisors and other employees in that location, and “where it went” after their layoff. Guthrie again asked for audit trails of the accounts so that the parties could determine the share of the market that might be available to the laid-off employees.

On October 16, the parties held a grievance meeting in which the Union submitted a request for information regarding accounts that underwent “unification.” When two previous business entities had merged to form Thryv, Inc., some accounts were assigned to a representative from each of the former parent entities, and the “unification” process ensured that the account was reassigned to only one representative. The Union sought a list of all these “twin accounts,” as well as the names and addresses of the businesses in these accounts, to ensure that bargaining-unit work was not being assigned to non-bargaining-unit employees in violation of the LBFO.

On October 17, Union Business Representative Mike Waltz sent the Respondent an information request by email. This request sought account and market information for New Business Advisors, Business Advisors and Senior Business Advisors in the Northern California and Nevada market over a period of the last 12 months. The request included accounts assigned to these Premise Representatives as well as accounts that had been moved out of the market or reassigned.

On October 30, the Union reiterated its request for the names and addresses of the “twin accounts,” noting that 83 of the accounts had been assigned to the bargaining unit, but seven had been reassigned to non-bargaining unit employees. The Respondent refused to disclose the names and addresses of the customers associated with these accounts unless the Union signed a non-disclosure agreement, a condition precedent that it had never imposed upon previous information requests.

The parties’ final bargaining session occurred on October 31, with Guthrie beginning the meeting by noting the numerous outstanding requests for information and saying, “I don’t know how to bargain if we have RFI [requests for information] and we need the information to bargain.” Guthrie remarked that plenty of Premise Representatives were leaving and that there was “ample market to move at least some of [the laid-off employees] into,” noting that the Union simply needed information from the outstanding requests to determine this. To this extent, Guthrie reiterated the Union’s request for information regarding the specific market assignments given to former Luis Pantoja and Marlon McConner, two former managers of the Respondent who had been moved from New Business Advisor positions to Business Advisor positions shortly before the layoffs.

To date, the Union has not received the aforementioned information it requested.

I. Respondent’s Unfair Labor Practices

A. Information Requests

The judge found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to respond to the requests for information made by the Union on September 11 and 16, and on October 3, 17, and 31. We agree. The judge carefully explained how each item of information requested by the Union was presumptively relevant, as it concerned the wages or working conditions of unit employees, or how the Union demonstrated the relevance of such information as necessary to its role of bargaining representative. The judge correctly rejected the Respondent’s claims that the provision of the requested information would be burdensome, voluminous, costly, or confidential. Accordingly, we adopt the judge’s determinations that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with the requested information.

B. Unilateral Layoffs

The judge found that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally laying off the six New Business Advisors. Although the judge determined that the Respondent had a duty to bargain over the economic layoff of these employees, the judge found that the layoff was lawful, as it was imposed subsequent to the parties having reached impasse. Although the Respondent unilaterally implemented its layoff decision just nine days after the first bargaining session, the judge found that “because the Union failed to present any reasoned proposals before September 20, the evidence supports a finding that impasse had quickly occurred, and/or by its conduct the Union waived its opportunity to bargain.” The judge found that the Respondent’s decision was not a fait accompli, and that even if it was, “the Respondent cured any such conduct by bargaining with the Union in good faith about the layoff and specifically asking the Union for its counterproposals.”

We reverse and find that the Respondent’s decision to lay off the six New Business Advisors was presented as a fait accompli, and that any subsequent bargaining did not “cure” this conduct because the Respondent’s failure to provide the requested information prevented the Union from making reasoned counterproposals. Additionally, we find that the Respondent violated its duty to refrain from making unilateral changes during the pendency of bargaining a successor agreement. We therefore find that the Respondent’s unilateral layoff of these six employees violated Section 8(a)(5) and (1) of the Act.

“It is . . . well established that a union cannot be held to have waived bargaining over a change that is presented as a fait accompli.” Intersystems Design & Technology Corp., 278 NLRB 759, 759 (1986) (quoting Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1397 (5th Cir. 1983)). Further, “no impasse is possible where an employer presents the union with a ‘fait accompli’ as to a matter over which bargaining to impasse is required.” Castle Hill Health Care Center, 355 NLRB 1156, 1189 (2010). Here, it is undisputed that the Respondent was obligated to bargain over the decision to lay off the New Business Advisors. See Lapeer Foundry & Machine, Inc., 289 NLRB 952, 954 (1988) (“[W]e conclude that the decision to lay off employees for economic reasons is a mandatory subject of bargaining.”). That decision was presented to the union as a fait accompli, an accomplished fact, as the Respondent began to implement the decision well before notifying the Union of the layoff or attending the first bargaining session.

First, the Respondent began taking steps to implement its layoff decision as early as July 2019, when the Respondent transferred former managers Luis Pantoja and Marlon McConner from their positions as New Business Advisors into new positions as Business Advisors in order to “keep the good ones” after the layoff. This was done weeks before the Respondent first informed the Union of the layoff decision on August 21. See FirstEnergy Generation, LLC, 366 NLRB No. 87, slip op. at 16–17 (2018) (finding a fait accompli where Respondent already began implementing subcontracting decision before providing notice to the Union), enf. denied on other grounds 929 F.3d 321 (6th Cir. 2019).

Second, the Respondent informed employees on September 6, 5 days before its first bargaining session with the Union, that the purpose of its meeting was to “officially notify” the employees that the Respondent “will administer a force adjustment in the Sales Organization in the New Business Advisor title . . .” and that “these positions will be eliminated.” The Respondent not only “announced the layoff to employees and told them that their severance packages were forthcoming,” as stated by the judge, but also mailed the severance packages to the laid-off employees via overnight delivery on September 6, a full 5 days before the first bargaining session even began. We find that the Respondent’s actions established that the layoff decision was presented as a fait accompli. See, e.g., Pontiac Osteopathic Hospital, 336 NLRB 1021, 1024 (2001) (union was presented with a fait accompli where the employer posted its unilaterally-imposed policy on its bulletin boards, “an event that ordinarily occurred only when decisions were final,” and where this notice stated that the changes “will be implemented,” with “such language again showing the Respondent’s intent to effect this change without bargaining.”).

We also reverse the judge’s finding that even if the Respondent presented the decision as a fait accompli, the Respondent “cured” its unlawful conduct through subsequently bargaining with the Union and seeking counterproposals. The Respondent is incorrect in asserting that the Union did not make any counterproposals to the announced layoff decision. The judge himself notes that the Union did, in fact, present proposals, repeatedly asserting to the Respondent that the Union sought to work together with the Respondent to incorporate the New Business Advisors into positions as Business Advisors, or to delay the layoffs until agreement could be reached.

Further, the Board has held that “a party’s failure to provide requested information that is necessary for the other party to create counterproposals, and, as a result, engage in meaningful bargaining, will preclude a lawful impasse.” E.I. du Pont & Co., 346 NLRB 553, 558 (2006), enfd. 489 F.3d 1310 (D.C. Cir. 2007). Here, we find that Respondent’s failure and refusal to respond to the Union’s requests for relevant and necessary information precluded the Union from formulating substantive counterproposals.

The judge found that as of the September 20 effective date of the layoff, the only extant requests were the request for an audit trail of all New Business Advisor accounts and the request for the market location of these employees. We find, contrary to the judge, that the request for an audit trail of the accounts was made for the purpose of bargaining the layoff decision, and not only to ensure that the employees could be made whole should their positions be restored through the grievance process. As the judge notes in his analysis on the relevance of the request for an audit trail, “the evidence clearly establishes that the Union believed the terminations of the various NBAs, and the impending layoffs, violated Respondent’s contractual obligation and/or the Final Offer, and the parties were engaged in wide ranging discussions about the matter, with the Union wanting the NBAs to be reinstated or absorbed into the BA title.” This was demonstrated when on September 11, after being asked what the Union needed to formulate counterproposals, Guthrie replied: “client base,” echoing the sentiment that the Union was prevented from making a proposal without information regarding which clients could be assigned to the New Business Advisors. Further, when discussing the feasibility of transferring the laid-off employees into new roles, the Union made clear during bargaining on September 12 that “[t]he company had information and we didn’t have a meeting to see how we could absorb these people into the BA role. We have not had the benefit of this information.” Thus, it is clear from the record evidence and from the judge’s findings that the Union sought information regarding the accounts assigned to New Business Advisors in order to make substantive bargaining proposals about the layoff decision. Without this information, the Union could not determine what accounts were available to create a “bag” or market of accounts to give to the unilaterally laid-off employees in new or restored positions.

We further find that the Union was prevented from formulating counterproposals due to the Respondent’s failure and refusal to provide information regarding the market location of the laid-off employees. As held above, we agree with the judge that current, up-to-date information on the market location of the affected employees was necessary and relevant to the Union’s status as collective-bargaining representative, and that the Respondent’s failure and refusal to respond to the information request violated Section 8(a)(5) and (1) of the Act. We reverse, however, the judge’s finding that this information was not relevant to the Union’s formulation of counterproposals. Current market location was used to determine the base pay of the New Business Advisors, as well as what accounts might be available to them in that market were they to be transferred to Business Advisor positions. As the judge noted in his summary of Guthrie’s testimony, “the Union needed ‘the specifics,’ including the area location along with how many employees were segmented into those particular locations because the Union ‘needed the ability to evaluate what market’ the NBAs had, and ‘where it went.’” Without these “specifics,” we find the Union could not formulate specific and substantive counterproposals to the Respondent’s layoff decision.

In these circumstances, we find that the Respondent’s failure to respond to these information requests effectively prevented the Union from formulating detailed or substantive proposals, thus precluding a declaration of impasse. See CP Anchorage Hotel 2, LLC d/b/a Hilton Anchorage, 370 NLRB No. 83, slip op. at 3 fn. 11, 4 (2021) (finding respondent violated Sec. 8(a)(5) and (1) by declaring impasse and unilaterally implementing proposal, even where union had not made a counterproposal, as “the Respondent’s failure to timely provide the information precluded a valid impasse.”), enfd. mem. sub nom. UNITE HERE! Local 878 v. NLRB, 2022 WL 3010171 (9th Cir. 2022); Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No. 119, slip op. at 21 (2019) (“It is well-settled that a finding of valid impasse is precluded where the employer has failed to supply requested information relevant to the core issues separating the parties.”) (internal quotations omitted), enfd. 845 F. Appx. 181 (3d Cir. 2021); accord Hendrickson Trucking Co., 365 NLRB No. 139, slip op. at 2, 2 fn. 6 (2017), enfd. 770 Fed.Appx. 1, 5 (D.C. Cir. 2019) (“the Board’s holding that Hendrickson Trucking could not declare an impasse because it had failed to provide the Union the financial information it needed to evaluate the Company’s representations was grounded in settled law.”). Accordingly, we reverse the judge and find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors without first bargaining with the Union to impasse, as impasse was precluded by the Respondent’s failure and refusal to provide requested information relevant to the layoff decision.

In addition to our aforementioned finding, we also find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors whilst the Respondent was under a duty to refrain from implementing unilateral changes during the pendency of bargaining a successor collective-bargaining agreement. As we held in Bottom Line Enterprises, “when, as here, the parties are engaged in negotiations, an employer's obligation to refrain from unilateral changes extends beyond the mere duty to give notice and an opportunity to bargain; it encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached on bargaining for the agreement as a whole.” 302 NLRB 373, 374 (1991), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). Here, the judge found the parties were operating under the Respondent’s 2018 Last, Best, and Final Offer, but were in the process of negotiating a new collective-bargaining agreement when the Respondent implemented the unilateral layoffs on September 20. The parties subsequently reached agreement on November 14. Thus, pursuant to Bottom Line Enterprises, the Respondent violated Section 8(a)(5) and (1) by implementing unilateral layoffs while the parties were negotiating over the successor agreement, as there is no evidence that overall impasse had been reached on the agreement as a whole. 302 NLRB at 374; accord Stephens Media Group—Watertown, LLC, 371 NLRB No. 11 (2021); Oak Hill, 360 NLRB 359, 403 (2014); RBE Electronics, 320 NLRB 80, 81 (1995).

Further, there is no evidence that either of the two exceptions to the standard established in Bottom Line Enterprises apply here. See Pleasantview Nursing Home, 335 NLRB 961, 962 (2001) (“In Bottom Line, the Board recognized only two exceptions to that general rule: when a union engages in bargaining delay tactics and when economic exigencies compel prompt action.”) (internal quotations omitted), enfd. in relevant part 351 F.3d 747, 755-756 (6th Cir. 2003). There is no cognizable claim that the Union “in response to an employer’s diligent and earnest efforts to engage in bargaining, insist[ed] on continually avoiding or delaying bargaining.” Bottom Line, supra, 302 NLRB 373 at 374. The Union attended the scheduled bargaining sessions, and the parties reached prompt agreement between September and November of 2019. Cf. Oak Hill, supra, 360 NLRB at 403–404 (Bottom Line exception not met even where union stated that there would be no further meetings or additional negotiations until it received a response to its information request).

Next, there is also no legitimate argument that economic exigencies compelled the Respondent to lay off the six New Business Advisors on September 20. Although the Respondent presented evidence that the New Business Advisor positions were not profitable, we have long held that the failure to turn a profit does not constitute a “compelling economic consideration” that would excuse an employer’s unilateral layoff. As we explained in Hankins Lumber Co., “[m]ost layoffs are taken as a of result economic considerations. However, business necessity is not the equivalent of compelling considerations which excuse bargaining. Were that the case, a respondent faced with a gloomy economic outlook could take any unilateral action it wished or violate any of the terms of a contract which it had signed simply because it was being squeezed financially.” 316 NLRB 837, 838 (1995).

Accordingly, we find that during the time of the September 20 unilateral layoffs, the Respondent and Union were engaged in negotiations over the terms of a successor bargaining agreement, and that the Respondent did not meet any of the exceptions which would privilege it to act unilaterally without bargaining to impasse over the agreement as a whole. Thus, in addition to the fait accompli analysis described above, we find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors during the pendency of bargaining without first bargaining the successor agreement to impasse, pursuant to Bottom Line Enterprises.

II. Remedial Issues

Having found that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors, we next turn to the proper remedy.[8] We find, for the reasons discussed at length below, that it is necessary for the Board to revisit and clarify our existing practice of ordering relief that ensures affected employees are made whole for the consequences of a respondent’s unlawful conduct. We conclude that in all cases in which our standard remedy would include an order for make-whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice.[9] As we explain below, any relief must be specifically calculated and requires the General Counsel to present evidence in compliance demonstrating the amount of pecuniary harm, the direct or foreseeable nature of that harm, and why that harm is due to the respondent’s unfair labor practice. The respondent, in turn, will have the opportunity to present evidence challenging the amount of money claimed, argue that the harm was not direct or foreseeable, or that it would have occurred regardless of the unfair labor practice.

We find that standardizing this remedy in all cases is necessary to “satisfy the Board’s statutory obligation to provide meaningful, make-whole relief for losses incurred . . . as a result of a respondent’s unlawful conduct.” King Soopers, Inc., 364 NLRB 1153, 1155 (2016), enfd. in relevant part 859 F.3d 23, 26 (D.C. Cir. 2017).

A. The Board’s Statutory Authority

Pursuant to Section 10(c) of the Act, where the Board concludes that a party has engaged in an unfair labor practice, it “shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.” 29 U.S.C. § 160(c). The Supreme Court has held that our authority to fashion such a remedy “is a broad discretionary one.” NLRB v. J. H. Rutter-Rex Manufacturing, 396 U.S. 258, 262–63 (1969) (quoting Fiberboard Paper Products. V. NLRB, 379 U.S. 203, 216 (1964) (“The Board’s [remedial] power is a broad discretionary one, subject to limited judicial review.”)); see also Fallbrook Hospital Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015) (Board acts at the “zenith of its discretion” when fashioning remedies) (internal quotation marks omitted). To give effect to this broad grant of discretion, the Board’s remedial authority “will not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Fibreboard Paper Products Corp. 379 U.S. at 203 (quoting Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (internal quotations omitted)).

Upon careful consideration of our remedial authority and our history of addressing the effects of unfair labor practices, we find that standardizing our make-whole relief to expressly include the direct or foreseeable pecuniary harms suffered by affected employees is necessary to more fully effectuate the make-whole purposes of the Act.[10] “The underlying policy of Section 10(c) . . . is ‘a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.” Trustees of Boston University, 224 NLRB 1385, 1385 (1976), enfd. 548 F.2d 391 (1st Cir. 1977) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)); see also Camelot Terrace Inc. v. NLRB, 824 F.3d 1085, 1092 (D.C. Cir. 2016) (“‘The task of the Board in applying § 10(c) is to take measures designed to recreate the conditions and relations that would have been had there been no unfair labor practice.’”) (quoting Franks v. Bowman Transportation Co., 424 US. 747, 769 (1976)); NLRB v. Strong, 393 U.S. 357, 359 (1969) (“‘[M]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.’”) (quoting Phelps Dodge Corp., 313 U.S. at 197); J.H. Rutter-Rex Manufacturing, 396 U.S. at 263 (purpose of Board orders is “restoring the economic status quo that would have obtained but for the company's wrongful [unfair labor practices].); Radio Officers’ Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 54–55 (1954) (“It is clear that petitioner committed an unfair labor practice and the policy of the Act is to make whole employees thus discriminated against.”). To the extent that our prior decisions have not always made clear that we define make-whole relief to include direct or foreseeable pecuniary harms resulting from the respondent’s unfair labor practices, we do so now.

We have previously recognized that employees cannot be fully made whole without consideration for these types of losses, and the Board has at times awarded relief for pecuniary harms that were either a direct, or an indirect but foreseeable, consequence of a respondent’s unfair labor practice. The philosophy of these cases underpins and informs our decision to clarify our remedies today. For example, only three years after the passage of the Act, the Board recognized that wrongfully-terminated employees may incur “expenses for transportation, room, and board, which they would not have incurred had they continued to work for the respondent,” and that these costs should reduce the amount of interim earnings that is subtracted from backpay awards. Crossett Lumber Co., 8 NLRB 440, 498 (1938); accord Deena Artware, Inc., 112 NLRB 371, 374 (1955), enfd. 228 F.2d 871 (6th Cir. 1955); see also Lou's Transport, Inc. v. NLRB, 945 F.3d 1012, 1024 (6th Cir. 2019) (“Interim employment expenses have been factored into back pay awards for more than 80 years.”).

Subsequently, in Baptist Memorial Hospital, the Board found that an employer unlawfully ejected a handbilling employee from its premises, causing him to be arrested and convicted of disorderly conduct. 229 NLRB 45, 45 (1977), enfd. 568 F.2d 1 (6th Cir. 1977). Noting that the “legal expenses and fees which have been or will be incurred by employee Wheeler in connection with this incident are directly the result of Respondent's unlawful policies and conduct,” the Board found that “[o]nly by requiring Respondent to reimburse Wheeler for these costs will we succeed in making Wheeler whole and in fulfilling our obligation to remove, insofar as is possible, the effects of Respondent's unfair labor practices.” Id. at 46.

In BRC Injected Rubber Products, an employee was discriminatorily assigned to a dirtier and more onerous work assignment in retaliation for her union activity, causing her clothes to be ruined. 311 NLRB 66, 66 fn. 3 (1993). Accordingly, the Board ordered “monetary reimburse-ment for the loss,” since the clothes were ruined as “the direct result of the Respondent's illegal conduct of assigning her to clean the pits.” Ibid.

Similarly, in Nortech Waste, the employer reassigned a union activist to a job pulling nails, an “entirely unnecessary task” that would aggravate her carpal-tunnel syndrome and “cause her to break down.” 336 NLRB 554, 567 (2001). There, the Board ordered that the employee be made whole “for any medical expenses she incurred as a result of her unlawful reassignment.” Id. at 554 fn. 2. The Board found that these damages are “not speculative. Rather, they are specific and easily ascertained.” Ibid., citing Pilliod of Mississippi, 275 NLRB 799, 799 fn. 3 (1985).

In Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, the employer unlawfully retaliated against striking employees by removing their toolboxes from its facility and hauling them outside, where they were subsequently damaged by rain and needed to be removed with a tow truck. 367 NLRB No. 6 (2018), enfd. 976 F.3d 30 (D.C. Cir. 2020). Noting that “making the employees whole for those costs is necessary to fully remedy the Respondent’s unfair labor practice and effectuate the policies of the Act,” the Board ordered the employer to make the employees “whole, with interest, for any expenses they incurred as a result of the Respondent unlawfully removing their toolboxes from its dealership” and “make whole all of the employees, with interest, for the towing expenses they incurred when they were unlawfully required to remove their toolboxes . . . . ” Id., slip op. at 4. The Board found that these damages were “specific and easily ascertainable” and that “the determination of those costs does not require the special expertise of the courts.” Ibid.

In King Soopers, the Board recognized that “incurring search-for-work and interim employment expenses represent a different injury than losing wages. Thus, reimbursement of these expenses compensates discriminatees for a separate injury than lost pay.” 364 NLRB 1153, 1159 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). The Board noted that “[w]here the Board has found that its remedial structure fails to fulfill its make-whole objective, ‘[it] has revised and updated its remedial policies . . . to ensure that victims of unlawful conduct are actually made whole.’” Id., at 1156 (quoting Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 102–103 (2014)). Accordingly, the Board modified the treatment of search-for-work and interim employment expenses to award these monetary damages separately from taxable net backpay. Id., slip op. at 8. In enforcing the Board’s order, the D.C. Circuit stated, “[i]t is clear here that the Board’s action in this case is well within its statutory authority.” King Soopers, Inc. v. NLRB, 859 F.3d 23, 36–39 (D.C. Cir. 2017).

In Alameda Center for Rehabilitation and Healthcare, Inc., an employer unlawfully withheld employees’ 401(k) contributions. 370 NLRB No. 25, slip op. at 1 (2020). There, the Board ordered the employer to not only reimburse the missing contributions, but to compensate employees for “the investment growth the amounts would have experienced during that period,” as this relief “restores employees to the status quo with respect to the matching contributions that they would have obtained but for the Respondent’s unfair labor practice.” Ibid. Accord Lou’s Transport, Inc., 366 NLRB No. 140 (2018), enfd. 945 F.3d 1012 (6th Cir. 2019).

Most recently, in Voorhees Care and Rehabilitation Center, the employer unlawfully discontinued employee healthcare coverage in violation of Section 8(a)(5). 371 NLRB No. 22 (2021). To “restore the status quo ante and fully remedy the Respondent's unlawful conduct,” the Board ordered the employer to “reimburse employees for the costs they incurred . . . including any increases in premiums, copays, coinsurance, deductibles, and other out-of-pocket expenses,” as well as to “pay any still-unpaid medical bills directly to the medical providers.” Id., slip op. at 3–4. See also Roman Iron Works, 292 NLRB 1292, 1294 (1989) (finding discriminatee entitled to reimbursement for medical expenses incurred during the backpay period, noting “[i]t is customary to include reimbursement of substitute health insurance premiums and out-of-pocket medical expenses in make-whole remedies for fringe benefits lost.”).

Despite the broad range of factual and legal circumstances encompassed by these cases, they share a common thread: the implicit recognition that making employees whole should include, at least, compensating them for direct or foreseeable pecuniary harms resulting from the respondent’s unfair labor practice. Today, we make that explicit and expressly incorporate it into our standard make-whole order.

We recognize that our Notice and Invitation to File Briefs sought briefing on whether the Board should include, as part of its make-whole remedy, “relief for consequential damages,” Thryv, Inc., 371 NLRB No. 37, slip op. 1 (2021), and that courts have occasionally applied damages-like concepts like “actual losses” and “mitigation of damages” to the Board’s remedial authority. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941). After further consideration, however, we recognize that “consequential damages” is a term of art used to refer to a specific type of legal damages awarded in other areas of the law and fails to accurately describe the make-whole remedial policy we espouse here. See Freeman Decorating Co., 288 NLRB 1235, 1235 fn. 2 (1988) (“[W]e observe that the Board does not award tort remedies, but rather remedies unlawful conduct. Any recompense awarded a discriminatee is not for physical injuries suffered, but rather is a necessary remedy to vindicate the purposes of the Act.”). Instead, the Board’s remedial authority is rooted in its Section 10(c) mandate to “translat[e] into concreteness the purpose of safeguarding and encouraging the right of self-organization,” rather than “the correction of private injuries.” Phelps Dodge Corp., 313 U.S. at 192–193.[11]

Accordingly, we stress today that the Board is not instituting a policy or practice of awarding consequential damages, a legal term of art more suited for the common law of torts and contracts. Instead, we ground our decision in the make-whole principles of Section 10(c) of the Act,[12] the guidance of the examples in our precedent summarized above, and our affirmative duty to rectify the harms caused by a respondent’s unfair labor practice by attempting to restore the employee to the situation they would have been in but for that unlawful conduct. These considerations persuade us that clarifying that our traditional make-whole remedy should also include compensation for direct or foreseeable pecuniary harms in all cases will better effectuate the purpose of the Act.

When exercising our remedial authority, we must “draw on enlightenment gained from experience.” NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 346 (1953); Carpenters Local 60 v. NLRB, 365 U.S. 651, 655 (1961) (“The Board has broad discretion to adapt its remedies to the needs of particular situations so that ‘the victims of discrimination’ may be treated fairly.’”) (quoting Phelps Dodge Corp., 313 U.S. at 194). Therefore, the Board has periodically updated its make-whole relief to better effectuate the purposes of the Act. Compare Isis Plumbing & Heating Co., 138 NLRB 716, 717 (1962) (computing simple interest on backpay awards), enf. den. on other grounds, 322 F.2d 913 (9th Cir. 1963) with Kentucky River Medical Center, 356 NLRB 6, 8-9 (2010) (changing make-whole remedy from simple interest to daily compound interest to better effectuate policies of the Act); see generally Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 102 (2014) (“[T]he Board has revised and updated its remedial policies from time to time to ensure that victims of unlawful conduct are actually made whole.”).

“Make-whole relief” is more fully realized when it consistently compensates affected employees for all direct or foreseeable pecuniary harms that result from a respondent’s unfair labor practice. See King Soopers, 364 NLRB 1153, 1156 (2016) (assessing “whether the current remedial framework properly awards make-whole relief, or fails to truly make whole the aggrieved victims of unlawful conduct.”). In The Voorhees Care & Rehabilitation Center, Chairman McFerran listed “a myriad of other possible examples” of unredressed pecuniary harms suffered by affected employees:

Following an unlawful discharge, for example, an employee may be faced with interest and late fees on credit cards, or penalties if she must make early withdrawals from her retirement account in order to cover her living expenses. She might even lose her car or her home, if she is unable to make loan or mortgage payments. As a result of an unfair labor practice, discriminatees could also face increased transportation or childcare costs. 371 NLRB No. 22, slip op. at 4 fn. 14 (2021).

Where, as here, employees have been laid off in violation of the Act or been the targets of other unfair labor practices, they may be forced to incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet. We cannot fairly say that employees have been made whole until they are fully compensated for these kinds of pecuniary harms if the harms were direct or foreseeable consequences of the respondent’s unfair labor practice. The Board has a “statutory obligation to provide meaningful, make-whole relief for losses incurred by discriminatees . . . . ” King Soopers, 364 NLRB at 1153, 1155. To fulfill this statutory purpose, the Board must strive to ensure that employees are more fully restored to the situation they would have inhabited but for a respondent’s unfair labor practice. See Town & Country Manufacturing Co., 136 NLRB 1022, 1029 (1962) (“It is axiomatic that remedial action, if it is to afford an effective redress for the commission of a statutory wrong, must be tailored to restore the wronged to the position he would have occupied but for the action of the wrongdoer . . . . Only when such action is taken can it truly be said that the wrong has been righted.”), enfd. 316 F.2d 846 (5th Cir. 1963).

Contrary to the arguments of the Respondent in its response to our Notice and Invitation to File Briefs, we find that our grant of such a remedy is firmly rooted within the Board’s statutory authority. See International Brotherhood of Operative Potters v. NLRB, 320 F.2d 757, 761 (D.C. Cir. 1963) (“We cannot regard changes in remedial mechanisms as beyond the Board's powers so long as they reasonably effectuate the congressional policies underlying the statutory scheme.”). The broad remedial language of the Act, permitting the Board to “take such affirmative action including reinstatement with or without backpay,” imbues the Board with the power to issue remedies beyond the reinstatement and backpay expressly authorized. 29 U.S.C. § 160(c). To this effect, the operative word in this section is “including,” with “reinstatement with or without backpay” serving only as an example of one type of affirmative action permitted. See Phelps Dodge Corp., 313 U.S. at 188-89 (“To attribute such a function to the participial phrase introduced by ‘including’ is to shrivel a versatile principle to an illustrative application . . . . The word ‘including’ does not lend itself to such destructive significance.”); Virginia Electric & Power Co., 319 U.S. at 539 (“[T]he Board has wide discretion in ordering affirmative action; its power is not limited to the illustrative example of one type of permissible affirmative order, namely, reinstatement with or without back pay.”); Radio Officers’ Union of Commercial Telegraphers Union, 347 U.S. at 54 (“[W]e interpreted the phrase giving the Board power to order ‘reinstatement of employees with or without back pay’ not to limit, but merely to illustrate the general grant of power to award affirmative relief.”).

Because the plain language of the statute clearly allows for remedies beyond reinstatement and backpay, we need not look to legislative history in determining the parameters of Section 10(c). Nevertheless, we find nothing in the legislative history surrounding the passage of the Act that evidences any Congressional intent to limit the Board’s authority to remedy employees’ direct or foreseeable pecuniary harm. We are also unpersuaded by the argument of some amici that the failure of Congress to expressly authorize consequential damages in the 1947 Taft-Hartley amendments evidences an intent to deprive the Board of such authority. In these amendments, Congress modified the language of Section 10(c) to provide that “[n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” Certain amici advance the argument that Congress acted intentionally when it failed to add these damages at the same time it otherwise modified the Board’s remedial authority. Cf. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 (2009) (“When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”).

As an initial matter, we note that what we clarify today regarding the application of our make-whole remedy is not ‘consequential damages’ as that term is used in other areas of the law. Supreme Court authority makes clear, moreover, that these arguments are substantively without merit. In Fibreboard Paper Products Corp. v. NLRB, the Court held that “the legislative history of [Taft-Hartley] indicates that it was designed to preclude the Board from reinstating an individual who had been discharged because of misconduct. There is no indication, however, that it was designed to curtail the Board’s power in fashioning remedies when the loss of employment stems directly from an unfair labor practice . . .” 379 U.S. 203, 217 (1964). Accordingly, the legislative history of the Act and its amendments does not serve to preclude us from issuing the make-whole relief discussed herein.

We are also unpersuaded by the assertion, advanced by our dissenting colleagues, that the remedies contemplated herein are akin to those awarded in tort proceedings, and thus implicate Seventh Amendment concerns. Such arguments were handily rejected in the early days of the National Labor Relations Act. In NLRB v. Jones & Laughlin Steel Corp., issued just two years after the Act’s passage, the Supreme Court confirmed that the Seventh Amendment “has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. . . . It does not apply where the proceeding is not in the nature of a suit at common law.” 301 U.S. 1, 48 (1937) (internal citations omitted). Finding an NLRB statutory proceeding “is one unknown to the common law,” the Court determined that the remedies issued therein “are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.” Id. at 48-49. In the same vein, while the Board’s make-whole remedy may “somewhat resemble compensation for private injury” like that imposed in a tort proceeding, the relief we issue is nevertheless purely statutory in nature and specifically designed to effectuate the purposes of the Act. Virginia Electric & Power Co., 319 U.S. at 543. Accordingly, we find that our amended make-whole remedy is grounded squarely in our statutory authority, and does not implicate the Seventh Amendment.

B. Implementation of the Remedy

We decline to treat today’s remedy as “extraordinary relief,” to be issued only in the most egregious cases. As described above, our make-whole remedies do not punish bad actors, but rather implement the statutory principles of rectifying the harms actually incurred by the victims of unfair labor practices and restoring them to where they would have been but for the unlawful conduct. Affected employees bear the direct or foreseeable economic burdens of a respondent’s unfair labor practice whether or not the Board labels the violation “egregious.”

Further, if we were to issue this make-whole relief only to address the most deplorable or flagrant violations of the Act, these remedies run the risk of becoming punitive rather than restorative. See Republic Steel Corp. v. NLRB, 311 U.S. 7, 10–11 (1940) (“The Act does not prescribe penalties or fines in vindication of public rights or provide indemnity against community losses as distinguished from the protection and compensation of employees . . . We do not think that Congress intended to vest in the Board a virtually unlimited discretion to devise punitive measures.”); Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 235–236 (1938) (“[T]his authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.”). Even the Respondent recognizes that “by focusing on so-called egregious violations, the Board strays into this prohibited realm.”

By contrast, the remedy we clarify today will make affected employees whole for direct or foreseeable pecuniary harms that result from a respondent’s unfair labor practice in every case in which our standard remedy would include make-whole relief, regardless of the egregiousness of the violation or the respondent’s past conduct. Issuing a remedial order for such relief in all cases will permit the Board to satisfy its statutory duty to make employees whole, while ensuring that our make-whole remedy, applied equally to all respondents, is not unlawfully punitive. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293 (1960) (“[T]he public remedy is not thereby rendered punitive, where the measure of reimbursement is compensatory only.”)

Further, we decline the Respondent’s suggestion that we avoid ordering such a remedy simply because it may be administratively complex. Our dissenting colleagues similarly allege that the standard we adopt today would unduly prolong compliance proceedings and may require the submission of evidence that would intrusively probe into employee’s fiscal matters. As a threshold issue, we reject the suggestion that we should sacrifice the goals of the Act for the sake of administrative convenience. The possibility of increased complexity in compliance proceedings should not deter the Board from issuing remedies that best effectuate the policies of the Act. “A statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.” Phelps Dodge Corp., 313 U.S. at 194. Simplicity of administration will not be given priority when balanced against our overarching duty to make employees whole for violations of the Act.

Further, while we remain unconvinced that the concerns raised by our dissenting colleagues will manifest in practice, we note that much of the alleged delay or intrusiveness may be alleviated through simple measures in compliance proceedings. For example, nothing in today’s decision should be read to prevent parties from stipulating to the immediate payment of certain monies in a compliance specification, like calculated backpay, while the respondent continues to challenge other elements of the specification, like the direct or foreseeable damages discussed herein. Similarly, while aggrieved employees will undoubtedly have to submit evidence to substantiate pecuniary harms for which they seek reimbursement, we believe that the compliance hearing can be conducted by Board administrative law judges and personnel in a dignified manner that protects employees from undue intrusion, much less embarrassment. We are confident that any speculative concerns advanced by our dissenting colleagues will be outweighed by the benefits that will accrue to affected employees through the fulfillment of our statutory directive: the issuance of true and complete make-whole relief to redress violations of the Act.

The concerns of our dissenting colleagues may be assuaged by an examination of the numerous cases cited elsewhere in this decision, which establish that in most instances, the Board’s make-whole remedies are not significantly more administratively complex than traditional backpay calculations and can be readily handled in compliance proceedings. See, e.g., Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001) (“leaving to the compliance stage . . . the question of whether the employees incurred medical expenses attributable to the respondents' unlawful conduct”); Pilliod of Mississippi, 275 NLRB 799, 801 fn. 3 (1985) (“leav[ing] to the compliance stage . . . whether Westmoreland incurred medical expenses attributable to the Respondent’s conduct.”). The Board has also resolved potentially sensitive or “intrusive” issues of fact in compliance proceedings without issue. See Freeman Decorating Co., 288 NLRB 1235, 1235 fn. 2 (1988) (“[W]e leave to compliance determination of [injured employee’s] disability, if any, and whether backpay and medical and rehabilitative costs are due . . .); The Voorhees Care and Rehabilitation Center, 371 NLRB No. 22, slip op. at 3-4 (2021) (contemplating the submission of, inter alia, out-of-pocket medical expenses and unpaid medical bills in compliance).

The Board may readily apply its existing evidentiary standards in compliance proceedings to the make-whole relief we are discussing today. For example, the finding of an unfair labor practice creates a rebuttable presumption that compensation is owed, traditionally in the form of backpay. See International Brotherhood of Teamsters Local 25, 366 NLRB No. 99 (2018), citing St. George Warehouse, 351 NLRB 961, 963 (2007); see also Cobb Mechanical Contractors, 333 NLRB 1168 (2001), enfd. in relevant part 295 F.3d 1370 (D.C. Cir. 2002); Arlington Hotel Co., 287 NLRB 851, 855 (1987), enfd. in relevant part 876 F.2d 678 (8th Cir. 1989).

The procedures that parties now follow when litigating backpay are equally appliable to determining any direct or foreseeable pecuniary harm. If there is evidence that an employee incurred direct or foreseeable pecuniary harms as a result of the respondent’s unfair labor practice, the General Counsel may present evidence of the nature and amount of the harm in compliance. We shall require that the General Counsel establish the amount of the pecuniary harm alleged, and that the pecuniary harm in question was either (a) directly caused by the unfair labor practice; or (b) was foreseeable at the time of the unfair labor practice and was incurred as a result of the unfair labor practice. In a matter analogous to the calculation of back pay, “[o]nce the General Counsel has established the gross amount . . . due the discriminatees in question, ‘the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.’” NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972) (quoting NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963)). Translating that process to the instant issue, the respondent will have the opportunity to challenge the alleged amount of compensation owed, present evidence demonstrating that the pecuniary harm would have occurred even absent the unfair labor practice, and/or establish that the harm was not foreseeable at the time the unfair labor practice occurred.

As in the past, we will not issue remedial orders for harms which are unquantifiable, speculative, or nonspecific. See Nortech Waste, 336 NLRB at 554 fn. 2. Any claimed damages must be supported by evidence; harm will not be presumed compensable, but we will include in our orders standard language requiring the respondent to compensate an employee for any covered harm that meets our standard of proof in compliance. Evidence of pecuniary harm may be established by, inter alia, available documentary evidence, including receipts, invoices, medical bills, and credit card and other financial statements. This evidence should establish specific, defined costs which would not have been incurred but for the respondent’s unlawful conduct or were the foreseeable consequence of that conduct—and explain how those costs are due to the unfair labor practice. “Uncertainties or ambiguities in the evidence” may be “resolved against the respondent whose unlawful actions created the dispute.” NLRB Bench Book: An NLRB Trial Manual § 14–140, Burdens of Proof and Production, citing International Brotherhood of Teamsters Local 25, 366 NLRB No. 99, slip op. at 2 (“It is well established that where there are uncertainties or ambiguities, doubts should be resolved in favor of the wronged party rather than the wrongdoer.”); accord Lucky Cab Co., 366 NLRB No. 56, slip op. at 6 (2018), enfd. mem. 818 Fed.Appx. 638 (9th Cir. 2020); United Aircraft Corp., 204 NLRB 1068 (1973) (uncertainties should be resolved in favor of the “backpay claimant rather than the respondent wrongdoer”); see generally Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 564 (1931) (where plaintiff establishes damages were definitively attributable to the defendant’s wrong, “the risk of the uncertainty [as to the amount of damages] should be thrown upon the wrongdoer instead of upon the injured party.”).

We will not attempt today to enumerate all the pecuniary harms that may be considered direct or foreseeable in the myriad of unfair labor practice cases that come before us.[13] “With one exception, not implicated today, the Board does not render advisory opinions.” 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 368 NLRB No. 60, slip op. at 3, 3 fn. 4 (2019) (quoting Snohomish County Headstart, 254 NLRB 1372, 1372 (1981) (internal quotations omitted)). We will be guided by our own caselaw in making those determinations in future cases.

Specifically, “direct harms” are those in which an employee’s “loss was the direct result of the Respondent’s illegal conduct.” BRC Injected Rubber Products, 311 NLRB 66, 66 fn. 3 (1993) (compensating employee for the cost of clothes that were ruined as a result of discriminatory work assignment). In contrast, “foreseeable harms” in our caselaw are those which the respondent knew or should have known would be likely to result from its violation of the Act, regardless of its intentions. For example, where a respondent terminated employees’ health insurance without informing the union or its employees while continuing to deduct healthcare premiums, it was entirely foreseeable that the affected employees would incur out-of-pocket expenses in the interim; we accordingly ordered that the respondent “reimburse employees for the costs they incurred . . . including any increases in premiums, copays, coinsurance, deductibles, and other out-of-pocket expenses,” as well as to “pay any still-unpaid medical bills directly to the medical providers.” The Voorhees Care & Rehabilitation Center, 371 NLRB No. 22, slip op. at 3–4 (2021). Similarly, where an employer reassigned a union activist to a job pulling nails, an “entirely unnecessary task” that would aggravate her carpal-tunnel syndrome and “cause her to break down,” the Board ordered that the employee be made whole “for any medical expenses she incurred as a result of her unlawful reassignment.” Nortech Waste, 336 NLRB 554, 554 fn. 2, 567 (2001); see also Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 4 (compensating employees not only for the costs of their damaged toolboxes directly damaged by the respondent but also “any expenses they incurred as a result of the Respondent unlawfully removing their toolboxes from its dealership”) (emphasis added), enfd. 976 F.3d 30 (D.C. Cir. 2020). Likewise, when a union engaged in a symbolic demonstration in violation of Section 8(b)(1)(A) by scattering bags of trash around a lobby, it was responsible for the effects of its action: “Whether they flung the sacks about purposely or inadvertently, Respondents cannot evade responsibility for the foreseeable consequences of their actions, including the harm done to a customer who was struck by a falling sack as she entered a salon on the lower level. Having acknowledged responsibility for the demonstration, the Respondents may not deny liability for its consequences
. . . . ” Service Employees Local 252 (General Maintenance Corp.), 329 NLRB 638, 685 (1999). Our caselaw thus provides us with sufficient guidance to issue remedies for direct or foreseeable pecuniary harms as they may arise.

Accordingly, for the reasons set forth above, today we clarify that, in all cases in which our standard remedy would include an order for make-whole relief, we shall expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice.[14] We will apply this policy retroactively in this case and in “all pending cases in whatever stage” given the absence of any “manifest injustice” in doing so. See SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)); Pressroom Cleaners, 361 NLRB 643, 648 (2014) (finding no manifest injustice in applying a remedial change retroactively). We find no manifest injustice here. This case involves a remedial issue, and thus, reliance on preexisting law is not an issue. King Soopers, Inc., 364 NLRB 1153, 1160 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). Further, any reliance the Respondent placed on the Board’s remedial authority is inapposite, as the aforecited cases clearly show that the Board has in the past awarded remedies justified on grounds similar to the ones contemplated herein. Today we clarify the scope of the Board’s make-whole remedy by expressly including, in all cases in which our standard remedy would include make-whole relief, an order requiring that the respondent make affected employees whole for direct or foreseeable pecuniary harms that result from the respondent’s unfair labor practice.

III. Application of the Remedy to the Instant Case

Here, the Charging Party advances three distinct types of pecuniary harms that were incurred by the New Business Advisors as a result of the Respondent’s unlawful unilateral layoff. First, the Charging Party seeks a restoration of the book of business that had previously been afforded to each of the laid-off New Business Advisors. Next, the Charging Party seeks compensation for reimbursements the New Business Advisors had previously received for the fixed and variable costs of maintaining a passenger car for use on company business. Finally, the Charging Party seeks out-of-pocket medical expenses incurred by a New Business Advisor who was laid-off while on disability leave for a high-risk pregnancy. In reply, the Respondent argues that the six New Business Advisors would have eventually been laid off even if the parties had engaged in further collective bargaining. The Respondent also argues against the causation and foreseeability of each of the items requested by the Charging Party. Consistent with our past practice in calculating other forms of make-whole relief, we reserve these remedial issues for resolution in the compliance stage of the proceedings, when the General Counsel and the Respondent will each have the chance to present evidence supporting their respective positions.[15]

Amended Remedy

Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we amend the judge's remedy in the following respects.

Having found that the Respondent unlawfully laid off six New Business Advisors, we shall order the Respondent to offer them reinstatement and make them whole for any loss of earnings and other benefits suffered as a result of the unilateral layoff. Backpay shall be computed in accordance with F.W Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with today’s decision, the Respondent shall also compensate these employees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful layoff, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.

In addition, we shall order the Respondent to compensate the affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). In accordance with our decision in Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), the Respondent shall also be required to file with the Regional Director for Region 20 a copy of each backpay recipient’s corresponding W-2 form reflecting the backpay award. We shall also order the Respondent to remove from its files any reference to these employees’ unlawful layoffs and to notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way.

ORDER

The National Labor Relations Board orders that the Respondent, Thryv, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall

Cease and desist from

(a) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of its employees in the following appropriate unit:

All sales and clerical employees in the Northern California Region in the following classifications: Account Executive New Media (New Business Advisor-Premise); Advertising Sales Representative (Business Advisor-Premise); Key Account Executive (Sr. Business Advisor-Premise); Customer Associate; Representative Directory; Sales Representative, Field Sales Collector, Office Assistant, Supervisor’s Assistant, Telephone Sales Representative, and Universal Support Associate, excluding all other employees and supervisors as defined in the Act.

(b) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Furnish to the Union in a timely manner the information requested by the Union on April 12, September 11 and 16, and on October 3, 17, and 31, 2019.

(b) Before laying off bargaining-unit employees, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above.

(d) Within 14 days from the date of this Order, offer the affected employees reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(e) Make the affected employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful layoff in the manner set forth in the remedy section of the judge’s decision as amended in this decision.

(f) Compensate the affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee.

(g) File with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient's corresponding W-2 form reflecting the backpay award.

(h) Within 14 days from the date of this Order, from its files any reference to the unlawful layoffs, and within 3 days thereafter, notify the affected employees in writing that this has been done and that the layoffs will not be used against them in any way.

(i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(j) Within 14 days after service by the Region, post at its Northern California and Nevada facilities copies of the attached notice marked “Appendix.”[16] Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 12, 2019.

(k) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Members Kaplan and Ring, concurring in part and dissenting in part.

The national labor policy established by Congress is to safeguard commerce from disruption by “protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”1 To further that policy, Congress gave workers these rights in Section 7 of the National Labor Relations Act and prohibited employers and unions from engaging in the unfair labor practices specified in Section 8 of the Act. When the Board determines that a respondent has engaged in such an unfair labor practice, Congress has further provided that the Board “shall” order the respondent “to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.”2 If an employee has suffered monetary losses as a result of an unfair labor practice, such as an unlawful discharge or reduction in pay or benefits, it is essential that they be made whole for those losses. Otherwise, employees will be deterred from exercising their Section 7 rights, and the Congressional policy will be undermined.

The Board’s authority to award backpay to employees who have been suspended, laid off, or discharged in violation of the Act, or who suffer losses as a result of unlawful unilateral changes in their terms and conditions of employment, is expressly recognized in the Act and indisputable. The question presented in this case is the extent to which the Board may include compensation for other monetary losses in a make-whole remedy.

As the majority observes, the Board for many years has ordered that employees be made whole for a variety of monetary losses suffered as a result of an unfair labor practice. We agree with our colleagues that the Board should continue to order respondents to make employees whole for all losses suffered as a direct result of an unfair labor practice. In our view, employees should also be made whole for losses indirectly caused by an unfair labor practice where the causal link between the loss and the unfair labor practice is sufficiently clear. Because the determination of whether an unfair labor practice did indirectly cause an employee’s alleged loss is highly fact-dependent and may raise difficult issues, we would resolve that issue on a case-by-case basis.

We therefore disagree with the majority that the Board should invariably “order respondents to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s unfair labor practice” (emphasis added). On its face, this standard would permit recovery for any losses indirectly caused by an unfair labor practice, regardless of how long the chain of causation may stretch from unfair labor practice to loss, whenever the loss is found to be foreseeable. In our view, this standard opens the door to awards of speculative damages that go beyond the Board’s remedial authority. We further observe that the Board faces potential Seventh Amendment issues if it strays into areas more akin to tort remedies. Those concerns also militate against the majority’s “direct or foreseeable” standard. Moreover, even if the Board does have the authority to award such remedies, doing so would invite protracted litigation over causation at compliance, including intrusive and potentially humiliating inquiries into employees’ personal financial circumstances for the purpose of determining whether and to what extent the employee’s own financial decisions contributed to the losses. Compliance with make-whole orders awarding monies to which employees are indisputably entitled will be delayed by such litigation. Accordingly, from the majority’s decision to adopt a “direct or foreseeable pecuniary harms” standard, we dissent.

With respect to this case, the majority identifies three losses incurred by employees when the Respondent unlawfully laid them off: loss of the “book of business” that had previously been afforded to each employee, loss of reimbursements the employees had previously received for the fixed and variable costs of maintaining a passenger vehicle for use on company business, and out-of-pocket medical expenses incurred by one employee who was laid off while on disability leave for a high-risk pregnancy. As discussed below, the restoration of an employee’s pre-layoff book of business is properly considered an element of reinstatement rather than a make-whole remedy. With respect to the other two types of monetary loss, we believe that employees should be made whole for those losses if they were caused by the Respondent’s unfair labor practices under the standard discussed below and that the question of whether they were so caused should be resolved at the compliance stage of this proceeding. Accordingly, in these respects, we concur in the majority’s order.

A. The Respondent Violated the Act by Laying Off Employees

The Respondent laid off six New Business Advisors in 2019. We agree with our colleagues that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to respond to numerous information requests submitted by the Union in relation to the layoffs. Contrary to the judge, we also agree with our colleagues that the Respondent violated the Act by unilaterally laying off the New Business Advisors. In so finding, we do not rely on the Respondent’s failure to respond to the Union’s information requests or its failure to refrain from making unilateral changes during bargaining for a successor contract. Instead, we simply agree that the Respondent’s decision to lay off the six New Business Advisors was presented as a fait accompli, as evidenced by the Respondent’s September 5, 2019 letter notifying the Union that the Respondent would inform the employees of the layoff the following day and its announcement the next day that it was “eliminating our Northern California DSE [New Business Advisor] Channel,” that these “positions will be eliminated effective September 20, 2019,” and that the Respondent had already sent severance packages to all six affected employees via overnight mail. We also agree that the Respondent did not “cure” its unlawful conduct in subsequent bargaining.

B. The Respondent Is Required to Make Affected Employees Whole

The Board’s authority to make employees whole is not limited to backpay

The Board “acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” National Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940) (internal quotation marks omitted). In considering the scope of its authority to give effect to this public policy through the exercise of its remedial powers, the Board must remain mindful of the limits of its authority in this regard. As the Supreme Court made clear shortly after the NLRA was enacted and upheld, the Board’s “power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236 (1938). Thus, the Board may not inflict upon a respondent “any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.” Id. at 235–236. In addition, the Seventh Amendment precludes the Board from adjudicating claims that must instead be decided by a court because the parties have a right to have those claims decided by a jury. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48–49 (1937) (recognizing constitutional limitation). Consistent with this principle, the Board has recognized the impropriety of ordering reimbursement for losses that constitute tort damages. Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001).

Within these limits, however, the Board possesses broad discretion in exercising its remedial powers, subject to limited judicial review. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964). Section 10(c) states that the Board’s remedial authority “includ[es]” reinstatement with or without backpay; it does not say that its authority is limited to those remedies. As the Supreme Court observed in Phelps Dodge Corp. v. NLRB, “[t]o attribute such a [limiting] function to the participial phrase introduced by ‘including’ is to shrivel a versatile principle to an illustrative application. We find no justification whatever for attributing to Congress such a casuistic withdrawal of the authority which, but for the illustration, it clearly has given the Board.” 313 U.S. 177, 189 (1941).3 To the contrary, “[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.” Id. at 197. Accordingly, we agree with our colleagues that the Board has the authority to order respondents to make employees whole for monetary losses other than backpay. As detailed in the majority opinion, the Board has done so for many years.

The majority’s inclusion of “foreseeable harms” as part of the standard make-whole remedy is overbroad

The Notice and Invitation to File Briefs sought public comment on whether the Board should award consequential damages. We agree with the majority that it should not. As the majority correctly observes, the term consequential damages is “a legal term of art more suited for the common law of torts and contracts.” Instead, in all cases in which the remedy includes make-whole relief, our colleagues modify the Board’s standard make-whole remedy to include a provision “requiring that the respondent make affected employees whole for direct or foreseeable pecuniary harms that result from the respondent’s unfair labor practice.” As defined by the majority, direct harms are monetary losses that result directly from an unfair labor practice. “Foreseeable harms,” in contrast, “are those which the respondent knew or should have known would be likely to result from its violation of the Act, regardless of its intentions.” The majority appears to view its “direct or foreseeable” standard as, at least in part, a synthesis of prior Board decisions awarding make-whole relief other than backpay in a variety of circumstances. However, our colleagues make clear that their standard also could encompass non-backpay make-whole awards for other kinds of monetary losses—for example, credit-card debt, interest and late fees on credit-card debt, penalties incurred from making an early withdrawal from a retirement account to defray living expenses, and loss of a car or home if the employee is unable to make loan, rent, or mortgage payments. The Board has not previously included compensation for such losses in its make-whole remedy.

We agree with the majority that employees should be made whole for monetary losses that are a “direct” result of an unfair labor practice. For purposes of this opinion, we define direct losses as those that are the first link in a chain of events beginning with the unfair labor practice.4 See, e.g., Nortech Waste, 336 NLRB at 554 fn. 2 (awarding medical expenses where the employer’s unlawful reassignment of an employee to a repetitive-motion job aggravated her carpal-tunnel syndrome); BRC Injected Rubber Products, 311 NLRB 66, 66 fn. 3 (1993) (awarding reimbursement for clothing ruined as a result of the employer’s unlawful assignment of an employee to a “dirty and messy job”); Baptist Memorial Hospital, 229 NLRB 45, 46 (1977) (awarding legal expenses incurred by employee after employer unlawfully ejected him from the premises, causing him to be arrested and charged with disorderly conduct), enfd. 568 F.2d 1 (6th Cir. 1977). To the extent the majority adopts a definition of “direct pecuniary harms” that is consistent with this precedent, we agree with them that the Board should make employees whole for monetary losses directly caused by unfair labor practices.

We recognize that some losses that are indirectly caused by an unfair labor practice also may be compensable. For example, in Voorhees Care & Rehabilitation Center, 371 NLRB No. 22, slip op. at 3–4 (2021), the Board ordered the employer to make employees whole by reimbursing and/or paying for outstanding medical expenses incurred by the employees as a result of its unlawful unilateral failure to pay medical insurance premiums and subsequent implementation of an inferior health insurance plan. Although the employees incurred the medical expenses as a direct result of receiving needed medical care—and unlike in Nortech Waste, the need for that care was not caused by the employer’s unfair labor practice—these expenses would have been reimbursed by employer-provided health insurance absent the employer’s unlawful unilateral changes to the employees’ insurance. As such, the causal link between the unfair labor practices and the losses was clear. Similarly, in Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 4 (2018), enfd. in relevant part 976 F.3d 30 (D.C. Cir. 2020), the employer unlawfully moved large and expensive employee-owned toolboxes from an indoor work area to an outdoor location on its premises where they were subsequently damaged by heavy rainfall. While the damage was directly caused by the rain, the toolboxes were damaged by the rain only because the employer unlawfully moved them outside. In both cases, the losses were not only clearly foreseeable but there was a clear causal link between the unfair labor practice and the loss. In our view, employees should be compensated for foreseeable losses in other cases where the chain of causation is similarly clear.5

We do not, however, agree with our colleagues that all losses indirectly caused by an unfair labor practice are compensable in a Board proceeding, regardless of how many steps removed the losses are from the unfair labor practice in the chain of causation, so long as the losses are deemed “foreseeable.” Of course, “foreseeability” is a central element of tort law.6 Any attempt to address tort claims in a Board proceeding obviously runs headlong into the Seventh Amendment’s guarantee of the right to have such claims tried before a jury.7 Moreover, insofar as the majority contemplates compensation for monetary harms indirectly caused by an unfair labor practice regardless of how remote the harms may be from the unfair labor practice in the chain of causation, they go well beyond tort law, which requires proof that the wrongful act was the “proximate cause” of the injury.8

The majority also goes well beyond the remedies available under Title VII as amended in 1991, where Congress specifically provided for compensatory damages triable before a jury precisely because the Seventh Amendment requires it.9 The Equal Employment Opportunity Commission (EEOC) has interpreted this provision to limit compensatory damages to “proximate consequences which can be established with requisite certainty.”10 Consistent with this interpretation, the EEOC excludes from compensatory awards day-to-day living expenses that would have been incurred even absent the discrimination.11 The majority, in contrast, appears to envision awarding compensation for similar expenses under the standard they announce today. Our colleagues fail to offer a valid justification for interpreting the Act to permit the Board to provide, with no right to a trial by jury, for broader make-whole awards than are available as compensatory damages, with a right to a jury trial, in Title VII cases.

Even assuming that the Board did have the authority to compensate employees for all foreseeable losses indirectly caused by an unfair labor practice, we do not believe that it would be prudent to attempt to do so. Any such effort will inevitably spark a wide-ranging compliance inquiry into a discriminatee’s financial circumstances and past financial decisions, made necessary in order to determine the extent to which those circumstances and decisions played a part in the losses suffered. Such proceedings would be intrusive and potentially deeply embarrassing for discriminatees.12 They would also be time-consuming and would unduly prolong compliance proceedings and thereby delay the day when the backpay claimants would receive any relief.13 In our view, the possible benefits of this course of action are too remote and the costs too high to make it worth pursuing, even if it were permissible to do so.

The difficulties inherent in expanding Board remedies in this way were recently demonstrated in United Mineworkers of America (Warrior Met Coal Mining, Inc.), Case 10–CB–275094 (June 16, 2022), enfd. No. 22-12227-A (11th Cir. 2022). There, the Board approved a formal settlement stipulation, agreed to by all parties, resolving allegations that the respondent union engaged in unlawful actions in connection with a strike. As relevant here, the settlement provided for the respondent union to pay “make-whole and consequential damages” to the employer and certain named employees.14 Pursuant to the settlement, regional personnel assessed those damages at $13.3 million.15 After the respondent vehemently complained, the region reduced its damage assessment to $435,000.16 We express no view regarding the merits of these changing assessments, which are not before us here. But the wide difference between the initial and final amounts assessed strongly suggest that the majority’s foreseeable-loss standard will be difficult to apply and result in bitterly disputed awards.

Finally, the majority places the burden on the General Counsel to show that the employee incurred compensable losses as a result of an unfair labor practice, and on the employer to show that the losses would have occurred even absent the unfair labor practice. To the extent that the majority is simply recognizing a respondent’s right to rebut the General Counsel’s evidence, we agree with that truism. Insofar as the majority contemplates something else, however, we disagree. When applied, the majority’s articulation of the parties’ respective burdens of proof could result in an improper shifting of the General Counsel’s burden to prove causation to the employer to prove absence of causation. In our view, the Board lacks the authority to require compensation for expenses that would have been incurred even absent the unfair labor practice or to relieve the General Counsel of the burden of proving that an asserted loss was in fact caused by the unfair labor practice. Placing the burden of proof on the employer would be especially unjustified since the evidence relevant to the issue is more likely to be available to the General Counsel than to the employer. We disagree with the majority’s standard to the extent that it departs from these principles.

In the instant dispute, restoration of the employees’ “book of business” is a reinstatement remedy, not a make-whole remedy

As noted above, the Charging Party identifies three losses incurred by the New Business Advisors as a result of being unlawfully laid off, compensation for which should be included in the make-whole remedy: loss of each laid-off employee’s “book of business,” loss of reimbursement for the fixed and variable costs of maintaining a passenger vehicle for use on company business,17 and out-of-pocket medical expenses incurred by a pregnant New Business Advisor that allegedly would have been covered by her employer-provided health insurance had she not been laid off.18

We agree that the automobile business maintenance costs and medical expenses are compensable as part of a make-whole remedy, provided that the General Counsel establishes that they were either directly caused by the Respondent’s unfair labor practices or foreseeably resulted from them and that there was a sufficiently clear causal link between the unfair labor practices and the losses. Indeed, the Board has previously held that medical expenses are compensable under the circumstances alleged to be present here.19 We would leave to compliance the question of whether such losses were caused by the unfair labor practices in the manner we have described, as well as all other compliance issues.

We do not, however, agree with the Charging Party’s argument that the restoration of each employee’s book of business is properly categorized as a make-whole remedy. According to the Charging Party, the laid-off employees sold digital advertising, received commissions on their sales, and retained their existing customers from year to year. The Charging Party asserts that “a sales representative reinstated without her book of business has not been made whole because, upon reinstatement, she will not be able to earn a quantity of commissions similar to what she earned before the discharge.” We disagree, however, that this is properly considered a make-whole matter.

Restoration of the book of business goes to the conditions under which the employees are to be reinstated, not to the amount of compensation due them for losses suffered prior to their reinstatement during the backpay period. As such, it is outside the scope of the Notice and Invitation to File Briefs, which by its terms solely addresses the scope of the Board’s make-whole remedy. Accordingly, this issue is not before the Board today, and we therefore express no view on whether a valid offer of reinstatement must include restoration of each laid-off employee’s book of business. Rather, we leave that issue to be resolved at compliance under existing precedent. See D.L. Baker, Inc., 351 NLRB 515, 531–532 (2007) (finding reinstatement offer invalid because it was for nonequivalent employment); NLRB Casehandling Manual Part 3 (Compliance) § 10530.1 (A reinstatement order is meant to restore the employee “to circumstances that existed prior to the respondent’s unlawful action or that would be in effect had there been no unlawful action.”). In this regard, we note that the backpay period does not end until a valid offer of reinstatement is made or the backpay period has been tolled for other valid reasons. NLRB Casehandling Manual Part 3 (Compliance) §10536.2. To the extent that the Charging Party contends that the unlawfully laid-off employees are entitled to financial compensation if their book of business is not restored upon their reinstatement, even if a valid offer of reinstatement does not require the Respondent to do so, we disagree. Such an award would be inconsistent with the basic principles on which reinstatement and backpay are based, as discussed above.

Conclusion

Individuals who lose their employment due to an unfair labor practice may well suffer economic losses beyond lost pay. For some employees, these losses may be devastating. It is indefensible that employees should pay such a price for exercising rights that have been guaranteed to American workers since 1935—rights the protection of which Congress has declared essential to the proper functioning of our national economy. We agree wholeheartedly with our colleagues that the Board is duty-bound to remedy those losses to the fullest extent permitted by law. The Constitution, the Act, and Supreme Court precedent place limits on the Board’s remedial authority, however, and the Board is duty-bound to respect those limits as well. We agree with our colleagues that some clarification of the Board’s make-whole remedy is within our authority. In our view, however, the majority’s decision to include compensation for all losses foreseeably resulting from an unfair labor practice is unwise and likely beyond the Board’s statutory authority for the reasons we have set forth. Accordingly, while we concur in part with respect to the specific remedial issues this case presents, we cannot join our colleagues in adopting a “direct or foreseeable” standard. To that extent, we respectfully dissent.

[1] In the absence of exceptions, we adopt the judge’s determination that the Respondent violated Sec. 8(a)(5) and (1) by failing to provide the Union with the information it requested on April 12, 2019, regarding quarterly relief to be afforded to sales representatives and by failing and refusing to respond to the Union’s October 30 request for information regarding the names and addresses of “twin accounts” that underwent the process of unification. In the absence of exceptions, we also adopt the judge’s dismissal of the complaint allegations that the Respondent violated Sec. 8(a)(5) and (1) by failing and refusing to respond to the Union’s July 17 and 24 requests for information about the market to which Luis Pantoja was assigned and to the Union’s September 11 request for information regarding the market and account assignments for Luis Pantoja and Marlon McConner.

[2] We shall modify the judge’s recommended Order to conform to our findings, to the amended remedy, to the Board’s standard remedial language, and in accordance with our decision in Paragon Systems, 371 NLRB No. 104 (2022). We have substituted a new notice to conform to the Order as modified.

[3] New Business Advisors were alternatively referred to as Digital Sales Executives (“DSEs”).

[4] All dates hereafter refer to 2019, unless otherwise specified.

[5] At the time of the layoff, the parties were operating under the Respondent’s Last, Best and Final Offer that it implemented after declaring impasse in September of 2018. Under Art. 30.2 of the LBFO, entitled “Force Adjustments”:

Whenever conditions are considered by the Company such as to warrant layoffs, part-timing, reclassifications or a combination thereof, the Company agrees to give the Union designee IBEW 1269 or his/her authorized representative thirty (30) calendar days’ notice of its intended plan, together with a description of work locations, job titles (levels within channels) and work groups so affected as determined by the Company.

[6] The LBFO states, in relevant part, that “[t]he parties agree to review the need for the New Business Advisor-Premise role at six-month intervals to determine whether there has been sufficient change in the client base and staffing levels to absorb New Business Advisor(s)-Premise into the Business Advisor-Premise title.”

[7] It appears that the work of the New Business Advisors in Northern California was being “insourced” to sales representatives, who were being encouraged by an agent of the Respondent to take a “power hour” each day to solicit new business. During the September 11 meeting, the Union requested all emails, texts, and communications from that manager related to this “power hour.” No charge related to this information request is included in the complaint.

[8] On November 10, 2021, the Board invited all interested parties to file briefs regarding whether the Board should “modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where these damages are a direct and foreseeable result of a respondent’s unfair labor practice.” In addition to the supplemental and responsive briefs filed by the Respondent, Charging Party and General Counsel, amicus briefs were filed by numerous parties. The amicus briefs filed by the American Federation of Labor and Congress of Industrial Organizations, Carlos Gonzalez-Rivera, Communications Workers of America, International Association of Machinists and Aerospace Workers, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, National Association of Government Employees, National Nurses United, Service Employees International Union, International Brotherhood of Teamsters, Local 848, Transport Workers Union of America, United Food and Commercial Workers International Union, and Weinberg, Roger & Rosenfeld support making the proposed modifications to the Board’s traditional make-whole relief. Associated Builders and Contractors et al. and the Chamber of Commerce of the United States of America oppose them.

[9] Although no party in this case specifically requested such a remedy before the administrative law judge, the Board may issue remedies even where, as here, they are not originally sought by the Charging Party or in the General Counsel’s complaint. Voorhees Care & Rehabilitation Center, 371 NLRB No. 22, slip op. at 4 fn. 14 (2021) (“[T]he Board may award a remedy on its own initiative.”), citing J. Picini Flooring, 356 NLRB 11, 12 fn. 5 (2010) (“[I]t is well settled that the Board has the authority to consider remedial issues sua sponte.”); Danbury Ambulance Service, Inc., 369 NLRB No. 68, slip op. at 3 fn. 3 (2020) (“[R]emedial matters are traditionally within the Board’s province and may be addressed sua sponte.”); HTH Corp., 361 NLRB 709, 710 (2014) (“We have broad discretion to exercise our remedial authority under Section 10(c) of the Act even when no party has taken issue with the judge’s recommended remedies.”), enfd. in rel. part 823 F.3d 668 (D.C. Cir. 2016).

[10] In explaining that we will henceforth expressly include make-whole relief for direct or foreseeable pecuniary harms, we emphasize that we do not conclude that this reflects the limits of the Board’s statutory remedial authority or that some other form of make-whole relief might not also be necessary in a future case. Rather, our decision today is meant to make clear that make-whole relief encompasses, at a minimum, these direct or foreseeable pecuniary harms that are a consequence of a respondent’s unfair labor practices.

[11] The Supreme Court emphasized this distinction in Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 (1943). There, the Court distinguished the Board’s affirmative relief from private remedies, stating:

The instant reimbursement order is not a redress for a private wrong. Like a back pay order, it does restore to the employees in some measure what was taken from them because of the Company's unfair labor practices. In this, both these types of monetary awards somewhat resemble compensation for private injury, but it must be constantly remembered that both are remedies created by statute—the one explicitly and the other implicitly in the concept of effectuation of the policies of the Act—which are designed to aid in achieving the elimination of industrial conflict. They vindicate public, not private, rights. For this reason it is erroneous to characterize this reimbursement order as penal or as the adjudication of a mass tort. It is equally wrong to fetter the Board's discretion by compelling it to observe conventional common law or chancery principles in fashioning such an order, or to force it to inquire into the amount of damages actually sustained. Whether and to what extent such matters should be considered is a complex problem for the Board to decide in the light of its administrative experience and knowledge. Id. at 543.

[12] As explained above, the Supreme Court has emphasized the role of make-whole relief to the effectuation of the purposes of the Act: “‘[M]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.’” NLRB v. Strong, 393 U.S. at 359 (quoting Phelps Dodge Corp., 313 U.S. at 197). See, e.g., Goya Foods of Florida, 356 NLRB 1461, 1462 (2011) (“From the earliest days of the Act, a make-whole remedy for employees injured by unlawful conduct has been a fundamental element of the Board's remedial approach . . . In keeping with these principles, the Board has, in cases dating back nearly 40 years, remedied unlawful unilateral changes in benefit plans by ordering the respondent to rescind the benefit plan changes upon the union's request and to make whole any employee who suffered losses as a result of the changes.”).

[13] The General Counsel requests that the Board modify its make-whole relief to include compensation for “pain and suffering” or emotional distress, arguing that while these nonpecuniary harms may be difficult to quantify, they are nonetheless real, direct, and foreseeable. Various amici additionally request that the Board modify its relief to include front pay, compensation for legal fees, or heightened bargaining remedies. We decline at this time to extend make-whole relief to the nonpecuniary harms requested by the General Counsel as well as the other forms of relief mentioned by the amici. These remedial issues are not implicated in the current case, and we express no opinion as to these remedies at this time. Rather, our decision today is meant to clarify that the Board’s make-whole remedy includes, at minimum, direct or foreseeable pecuniary harms, and to expressly include standard remedial language to that effect in our orders.

[14] For the reasons discussed at length in King Soopers, we order that these pecuniary harms be calculated without regard to a discriminatee’s interim earnings and separate from taxable backpay, with interest. 364 NLRB No. 93, slip. op at 3–8 (2016) (“[R]eimbursement of these expenses compensates discriminatees for a separate injury than lost pay.”), enfd. in rel. part 859 F.3d 23 (D.C. Cir. 2017). Our order shall therefore require a respondent to “Make [name(s) or the affected employees] whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of [the unlawful layoff(s) or discrimination or other adverse action against him/her/them], in the manner set forth in the remedy section of the [decision or judge’s decision as amended in this decision].”

[15] See Nortech Waste, 336 NLRB at 554 fn. 2 (“leaving to the compliance stage . . . the question of whether the employees incurred medical expenses attributable to the respondents' unlawful conduct”); Freeman Decorating Co., 288 NLRB 1235, 1235 fn. 2 (1988) (“[W]e leave to compliance determination of Pruitt's disability, if any, and whether backpay and medical and rehabilitative costs are due . . .); Pilliod of Mississippi, 275 NLRB 799, 801 fn. 3 (1985) (“leav[ing] to the compliance stage . . . whether Westmoreland incurred medical expenses attributable to the Respondent’s conduct.”). Accordingly, in contrast to our dissenting colleagues, we decline at this point to address whether restoration of the book of business for the laid-off New Business Advisors is to be considered an element of reinstatement or an aspect of the make-whole remedy. We agree with our colleagues that “this issue is not before the Board today,” and leave the issue to be determined in compliance.

[16] If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

1 National Labor Relations Act (the Act or NLRA), Sec. 1, 29 U.S.C. § 151.

2 NLRA Sec. 10(c), 29 U.S.C. § 160(c).

3 The Court made this observation in rejecting the notion that the phrase “including reinstatement” precluded the Board from remedying a discriminatory refusal to hire union supporters by ordering the respondent to hire them, on the theory that hiring was not the same as reinstatement. But the Court’s rejection of the argument that the term “including” limited the Board’s remedial authority in that manner applies with equal force to the argument that it limits the Board’s authority to order make-whole relief to backpay awards.

4 In their joint brief, the Charging Party and AFL–CIO define direct losses in this way. We agree with their definition and use it here.

5 We also agree that this relief should not be categorized as an extraordinary remedy, but instead should be available to any employee entitled to make-whole relief.

6 See, e.g., Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928).

7 The Supreme Court held that the Act’s provision for backpay awards did not contravene the Seventh Amendment in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). But the Court’s holding was expressly limited to the remedies of backpay and reinstatement. “Reinstatement of the employee and payment for time lost,” the Court wrote, “are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.” Id. at 48-49. Accordingly, the Court’s decision does not foreclose the possibility that application of the “direct or foreseeable” remedial standard the majority adopts today may raise a constitutional issue in particular cases. See also Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 543 (1943) (finding reimbursement for dues unlawfully deducted from wages effectuated the statutory purpose of the Act without addressing whether it comported with the Seventh Amendment).

8 Id. The majority asserts that it “will not issue remedial orders for harms which are unquantifiable, speculative, or nonspecific,” but this assurance cannot readily be reconciled with their insistence that all foreseeable harms are compensable, which can easily be interpreted to authorize compensation for all foreseeable harms regardless of how remote they may be from an unfair labor practice in the chain of causation.

9 See EEOC v. Bass Pro Outdoor World, LLC, 826 F.3d 791, 796 (5th Cir. 2016) (quoting H.R. Rep. P. No. 102–140 at 29 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 723).

10 “Enforcement Guidance: Availability of Compensatory and Punitive Damages under Sec. 102 of the Civil Rights 1” (July 7, 1992) (quoting 22 Am. Jur. 2d Damages § 45 (1965)), https://www.eeoc.gov/laws/guidance/enforcement-guidance-compensatory-and-punitive-damages-available-under-sec-102-cra (last visited 10/8/2022).

11 See Bustamante v. USPS, EEOC Doc. 0120120185, 2013 WL 1182271, 2013 EEOPUB LEXIS 726 (EEOC Mar. 14, 2013). There, the EEOC found that mortgage payments were not compensable, even though the complainant ceased making the payments after his discharge and thereafter was forced to deed the house back to the seller to avoid foreclosure. As the EEOC explained, “these expenses were not incurred because of the [Postal Service’s] actions. Rather, Complainant made the payments so that he would have a place to live. These are day-to-day living expenses that would have been incurred regardless of the Agency's action and are not compensable.”

12 Our colleagues express confidence that the Board’s administrative law judges and other personnel can protect employees from “undue intrusion,” but efforts to do so will predictably bump up against employers’ due process right to litigate the extent to which an employee’s financial decisions contributed to pecuniary harms the General Counsel claims the employer must remedy.

13 The majority observes that nothing in their decision “should be read to prevent parties from stipulating to the immediate payment of certain monies . . . , like calculated backpay.” But of course, nothing compels parties to agree to so stipulate.

14 Although the settlement involved “consequential damages,” the parallels between the settlement and the majority’s standard announced today are nonetheless relevant.

15 See https://umwa.org/news-media/press/nlrb-demand-for-umwa-to-pay-warrior-met-coal-strike-costs-outrageous-threatens-american-workers-right-to-strike/ (last visited 10/8/2022). The respondent asserted that the amount was “outrageous and effectively negates workers’ right to strike. It cannot stand.” Id.

16 See https://umwa.org/news-media/press/nlrb-revises-damages-calculations-in-warrior-met-strike/ (last visited 10/8/2022).

17 According to the Charging Party, the discriminatees were required, as a condition of their employment, to maintain a passenger vehicle and insurance in coverage amounts acceptable to the Respondent for use when calling on customers. Employees were then reimbursed by the Respondent for those expenses. After their unlawful layoff, the discriminatees allegedly maintained those vehicles to remain eligible for reinstatement, but they were no longer reimbursed for those costs of ownership.

18 The Charging Party also stated its intention to raise at compliance other direct or foreseeable economic harms suffered by the employees. We cannot pass on the merits of any other harms that the Charging Party and General Counsel have failed to raise in their briefs. The parties were given ample opportunity to argue that the Board should award compensation for specific pecuniary harms.

19 See Voorhees Care & Rehabilitation Center, 371 NLRB No. 22.

1 Transcript citations are denoted by “Tr.” with the appropriate page number. Citations to the General Counsel, Respondent, and Joint exhibits are denoted by “GC,” “R.,” and “Jt. Exh.” respectively. Transcript and exhibit citations are intended as an aid only. Factual findings are based upon the entire record and may include parts of the record that are not specifically cited.

2 The Buggles, Video Killed the Radio Star, on Age of Plastic (Island Records 1980).

3 See Makan Delrahim, Assistant Attorney General, Video Killed the Radio Star: Promoting a Culture of Innovation, Address at the 47^th Annual Conference on International Antitrust Law, Policy, and Antitrust Economics Workshops (October 8, 2020), 2020 WL 5969792.

4 The use of video conference technology has been a necessary temporary adjustment to conducting hearings during the COVID-19 pandemic. I note, however, that it resulted in transmission issues resulting in many instances of audio interference, or difficulty hearing witnesses and attorneys, throughout the hearing. (Tr. 25, 36, 37, 39, 45, 56, 69, 83, 84, 103, 120, 137, 139, 151, 168, 169, 172, 173, 176, 181, 190, 196, 214, 221, 248, 265, 273, 274, 276, 278, 280, 282, 283, 285, 287, 290, 292, 294, 299, 303, 353, 369, 374, 382, 393, 394, 395, 410, 413, 415, 416, 418, 423, 436, 438, 439, 450, 463, 467, 471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 482, 483, 494, 495, 496, 500, 519, 531, 536, 537, 538, 539, 547, 566, 568, 579, 586, 588, 589, 609, 616, 617, 627, 636, 645, 656, 692, 701, 704, 706, 707, 710, 718, 745, 780, 820, 855, 908, 916, 930).

5 Testimony contrary to my findings has been specifically considered and discredited.

6 See Thryv Holdings, Inc., Form 10-Q filed with the Securities and Exchange Commission (SEC) as further cited in footnote 12.

7 For purposes of background information, I take administrative notice of the various forms 10-K and 10-Q filed with the SEC as noted herein. Pacific Greyhound Lines, 4 NLRB 520, 522 fn. 2 (1937) (Board takes judicial notice of facts stated in company’s annual report filed with the Security and Exchange Commission); Fed. R. Evid. 201(b). All of the various internet links cited were last accessed on April 19, 2021.

8 See Dex Media Inc. form 10-Q filed with the SEC on March 31, 2008.

https://www.sec.gov/Archives/edgar/data/0001351506/000095014408002491/g12498ke10vk.htm

9 Id. See also U.S. Bank National Association v. Verizon Communications Inc., No. 3:10-CV-1842-G, 2013 WL 230329, at *13 (N.D. Tex. Jan. 22, 2013), aff'd, 761 F.3d 409 (5th Cir. 2014), as revised (Sept. 2, 2014).

10 See AT&T Inc. form 10-K filed with the SEC on March 1, 2006.

https://www.sec.gov/Archives/edgar/data/0000732717‌/000073271706000008/form10k2005.htm

11 See Dex One Corporation form 10-K filed with the SEC on March 4, 2011. https://www.sec.gov/Archives/edgar/data/30419/000095012‌‌‌311021991/g26201e10vk.htm

12 See also Thryv Holdings, Inc., form 10-Q filed with the SEC on November 12, 2020. https://www.sec.gov/‌‌‌‌‌‌‌‌Archives/edgar/data/0001556739/000162828020016327/dxm-20200930.htm

13 I take administrative notice of the Union’s LM-2 on file with the Department of Labor for 2010. See J.A. Croson Co., 359 NLRB 19, 21 fn. 10 (2012) (Board takes administrative notice of Union’s LM-2 report). https://olmsapps.dol.gov/query/orgReport.do?rptId=437247&rptForm=LM2Form

14 For Respondent’s 2018, 2019, and 2020 revenues and income see Thryv Holdings, Inc., form 10-K filed with the SEC on March 25, 2021.

https://www.sec.gov/ix?doc=/Archives/edgr/data/1556739/0001‌62828021005660/dxm20201231.htm#i3b39d788a07344f4832787e249b82c1e_16

15 The Union also represents a unit of Respondent’s employees who work in various Rocky Mountain states; they are not involved in these proceedings. (Tr. 264.)

16 The Union represents all of Respondent’s Northern California Region sales and clerical employees in eleven specific job classifications. However, during the relevant period employees only worked in the SBA, BA, and NBA classifications. (Jt. Exh. 1, 2, 4.)

17 Dex Holdings and YP had different names for these job titles, which is why the New Business Advisors were also referred to as “Digital Sales Executives.” Also for this reason, Business Advisors were sometimes referred to as “Premise Business Agents” or “Premise Advisors” and Senior Business Advisors were also known as “Key Account Representatives.” (Tr. 58–60, 66, 72, 185, 216, 543, 576, 552–53, 750–751, 782, 845, 896, 910; Jt. Exh. 2.)

18 Transcript page 702, line 22 should read “not in the bargaining unit” instead of “in the bargaining unit.”

19 SAAS or “service as software” generally refers to a cloud-based software solution where customers purchase a service from a provider and rent the use of an application used to connect to the software via the internet. See Dardashtian v. Gitman, No. 17CV4327LLSRWL, 2021 WL 746133, at *4, fn. 16 (S.D.N.Y. 2021).

20 For the remainder of the decision, all dates are in 2019 unless otherwise noted.

21 According to Respondent, negative monthly revenues can occur when, during the course of a year, an account stops paying or otherwise becomes delinquent. (Tr. 759–760.)

22 Unless otherwise noted, the facts regarding what occurred during all of the bargaining sessions are taken from the bargaining notes that were introduced into evidence. (Jt. Exh. 38, 39, 44, 59, 60, 81, 82, 92, 93.) To the extent there are any differences between the trial testimony and the notes, I credit the bargaining notes as to what occurred.

23 Respondent reused an old template for its bargaining notes on September 11 and 12, so the actual notes for the meetings do not begin until approximately 6 lines into the first page. (Tr. 133–134.)

24 BOTS is short for “book on the street revenue,” which means the dollar amount currently billed for a customer; in other words, how much advertising a customer is buying. (Tr. 195–196.)

25 The Union’s bargaining notes for September 12 were neither offered, nor admitted, into evidence. (Jt. Exh. 43.)

26 The company’s typed bargaining notes state “DSW channel,” but this is clearly a typographical error and should read “DSE channel.” (Jt. Exh. 44 p. 8.)

27 In his posthearing brief, the General Counsel withdrew the information request allegations contained in Complaint pars. 8(f), 8(g) and 8(o). (GC Br., at 2 fn. 2.)

28 Respondent’s policies called for a sales representative transferring into a new market location/job classification to receive a listing of accounts to work (bag of business) that was at least 70% the size of the average assignments the other representatives in that location were assigned. (Tr. 183, 911.)

29 A “bag,” which was also referred to as a “bag of business,” “book of business,” “marketing bag,” or “sales bag” is a listing of all the various accounts assigned to an individual sales representative. (Tr. 62, 64, 522–521, 881.)

30 The complaint only alleges a violation concerning Waltz’s July 24 email (GC 1(e)), but in his post hearing brief the General Counsel appears to include both emails in his theory of a violation. (GC Br., at 12–14, 25–26). I find that the information request made in Waltz’s July 17 email is “closely connected to the subject matter of the complaint and has been fully litigated.” Pergament United Sales, 296 NLRB 333, 334 (1989).

31 See Transcript pages: 183, 522, 566–67, 596, 696–699, 753–754, 820.

32 The other citations set forth in the General Counsel’s brief do not mention either Pantoja or McConner. See GC Br., at 16 (citing Jt. Exh. 38, pp. 11, 21, 22; JT. EXH. 39, p. 11; Tr. 152).

33 The complaint only alleges that the Union requested this information on September 11, but the evidence shows the requests occurred on September 11, September 16, and on October 3; these requests were all fully litigated. Burrows Paper Corp., 332 NLRB 82, 87 fn. 2 (2000).

34 During the September 12 bargaining session Guthrie stated that the Union was going to file a grievance on behalf of the six NBAs. (Jt. Exh. 39, p. 29.)

35 Transcript p. 861, line 21 should read “Joint Exhibit 86” instead of “Joint Exhibit 16.”

36 With respect to request #7, regarding “unification” and “twin” accounts, Respondent provided the Union a list of the specific accounts the Union requested, but did not include the name or the address of the customer whose accounts remained with bargaining unit members, or the name of the customer on the accounts transferred outside the unit. This is further addressed in Sec. III(A)(5) below. (Jt. Exh. 90, Jt. Exh. 90(a); Tr. 237–241.)

37 I read the Union’s request for items #4 and #5 as directed to bargaining unit employees only. To the extent they may involve bargaining unit work assigned/transferred to non-unit employees, the same analysis applies.

38 Respondent’s bargaining notes show that the Union was discussing information requested for “[f]ull accounts of all benefits expenses, auto allowances, contracts all employees signed at initial employment, market assignments given to Arnold and Louis [and the] unification of market” when Vitales replied the request was “voluminous” and would require “multiple departments” and “man hours” to put together a report. (Jt. Exh. 92, p. 1.)

39 Complaint par. 8(i) alleges that the union asked for the customer names and addresses on October 30, while the evidence shows that it first asked for the information on October 16, and then again asked for it on October 17 and 31. (GC 1(e).) The difference in dates is of no consequence, as the matter was fully litigated.

40 Respondent has not asserted that the layoff decision here involved a change in the scope and direction of the enterprise, requiring the analysis set forth in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). See Emcor Group, Inc., 330 NLRB 849, 849 fn. 1 (2000). Nor does the evidence support any such finding.

41 To the extent any of the union representatives testified at the hearing that they did not know the locations of the six NBAs, I find this to be not credible, as it conflicts with the other record evidence that the Union received this information during the campaigns/market breaks and during negotiations in 2018. Any such testimony was simply “post hoc speculation about the significance of the withheld information and does not prove that it served as a sticking point during . . . negotiations.” United Auto Workers, 516 F.App’x. at 491.

41 The job titles of Customer Associate, Representative Directory, Sales Representative, Field Sales Collector, Office Assistant, Supervisor’s Assistant, Telephone Sales Representative, and Universal Support Associate have been “archived” by the parties and are not currently in use.

42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

43 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates with its employees by electronic means, and to the reading of the notice to employees. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

8.5 Noah's Ark Processors, LLC, 372 NLRB No. 80 (2023) 8.5 Noah's Ark Processors, LLC, 372 NLRB No. 80 (2023)

Relying on its "broad discretion to exercise [its] remedial authority," the Board in Noah's Ark enumerated certain enhanced remedies that it could and would order to address the effects of repeated or egregious unfair labor practices.

Noah’s Ark Processors, LLC d/b/a WR Reserve and United Food and Commercial Workers Local Union No. 293. Case 14–CA–255658

April 20, 2023

DECISION AND ORDER

By Chairman McFerran and Members Kaplan and Prouty

On May 27, 2021, Administrative Law Judge Robert A. Ringler issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions[1] and to adopt the recommended Order as modified and set forth in full below.

Background

The parties have been involved in negotiations for a new contract since early 2018, with the first round of negotiations lasting approximately 10 months between 2018 and 2019. The Respondent’s conduct during that round of negotiations resulted in an injunction, contempt findings, sanctions, and unfair labor practice charges.

On January 27, 2021, the Board affirmed an administrative law judge’s findings that, during the 2018 to 2019 round of negotiations, the Respondent, among other things, bargained in bad faith and declared impasse and imposed a final offer without a valid impasse.[2] See Noah’s Ark Processors, LLC d/b/a WR Reserve, 370 NLRB No. 74 (2021) (NAP I), enfd. 31 F.4th 1097 (8th Cir. 2022).[3]

As a result of a May 10, 2019 Section 10(j) injunction related to the 2018 to 2019 round of negotiations, the parties met for court-ordered bargaining on three occasions in July and August 2019. With very little progress made during those sessions, the Region filed a motion with the court alleging that the Respondent was violating the Section 10(j) injunction. On October 17, 2019, the court granted the Region’s motion and issued orders finding the Respondent in contempt and,[4] on November 1, 2019, imposed sanctions and established a purge plan requiring the Respondent to offer bargaining dates and prepare status reports after each session.

In accordance with the court’s purge plan, the parties met for a third round of bargaining on six occasions in November and December 2019 and once in January 2020. During the November 11, 2019 session, in which the Respondent was represented by CEO Fischel Ziegelheim and attorney Jerry Pigsley, the parties exchanged proposals. The Respondent renewed a regressive proposal it offered earlier in the year and proposed removing additional employee benefits and union rights. During the January 13, 2020 session, in which the Respondent was represented by Pigsley, the Respondent presented a proposal that it declared to be its last, best, and final offer. The proposal included a final offer the Respondent had proposed in January 2019, to which the Union had objected, and language allowing management to unilaterally increase pay rates during the contract. The proposal also included the removal of binding arbitration from the grievance provision; additional cuts to various types of paid time off; the elimination of multiple articles related to safety; and the creation of new management rights to subcontract any existing operation, to assign unit work to a non-unit foreman, and to change work rules unilaterally. In an email dated January 14, 2020, the Respondent advised the Union that it would consider the parties to be at impasse if the final offer was not accepted. The Union replied that it was willing and able, and desired, to continue negotiations. Ultimately, the Union declined to accept the final offer and, on January 24, 2020, the Respondent formally declared that the parties were at impasse. Sometime shortly thereafter, the Respondent implemented its last, best, and final offer. The Union again filed unfair labor practice charges alleging that the Respondent bargained in bad faith by unlawfully declaring impasse and unlawfully implementing its last, best, and final offer.

The judge found that, looking at the totality of the circumstances, the Respondent bargained in bad faith. The judge relied on the following factors: (1) deeply regressive proposals; (2) unwillingness to consider even minor changes; (3) general unwillingness to consider most other union proposals; (4) adherence to most of its own initial proposals without modification;[5] (5) unwillingness to wait for the Union to make all of its proposals; and (6) the Respondent’s wage proposal. The judge further found that the Respondent failed to demonstrate the existence of a valid, good-faith impasse and that its implementation of the second final offer was therefore unlawful. To remedy the above violations, the judge recommended ordering the Respondent to, among other things: (1) on request, bargain with the Union about unit employees’ terms and conditions of employment and, if an understanding is reached, embody it in a signed agreement; and (2) hold a meeting or meetings, scheduled to ensure the widest possible attendance, at which the notice will be read to employees in both English and Spanish by CEO Fischel Ziegelheim or, at the Respondent’s option, by a Board agent in Ziegelheim’s presence.

Analysis

The key issue before the Board is whether the judge correctly concluded that the Respondent was bargaining in bad faith prior to declaring impasse in January 2020. On that basis, the judge concluded that the Respondent had not reached a valid overall impasse and thus violated the Act by implementing its proposals. We agree.

The essence of bad-faith bargaining is a purpose to frustrate the possibility of arriving at any agreement. In determining whether an employer has bargained in bad faith, the Board employs a “totality of the circumstances” test. “From the context of an employer’s total conduct, it must be decided whether the employer is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or if it is unlawfully endeavoring to frustrate the possibility of arriving at any agreement.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984).

Based on the totality of the circumstances, we find, like the judge, that the Respondent bargained in bad faith with the Union over a successor contract during the third round of bargaining, which occurred between November 2019 and January 2020.[6] In doing so, we emphasize that although the Board does not evaluate whether particular proposals are acceptable or unacceptable, the Board will examine a party’s proposals “to determine, not their merits, but ‘whether in combination and by the manner proposed they evidence an intent not to reach agreement.’” Altura Communication Solutions, LLC, 369 NLRB No. 85, slip op. at 4 (2020) (quoting Coastal Electric Cooperative, 311 NLRB 1126, 1127 (1993), enfd. 848 Fed.Appx. 344 (9th Cir. 2021)).

We agree with the judge that the Respondent’s deeply regressive proposals, unwillingness to consider minor changes proposed by the Union (without explanation), unwillingness to consider most of the Union’s proposals, adherence to most of its initial proposals without modification, unwillingness to wait for the Union to even make all of its proposals, and its discretionary wage proposal are, taken together, evidence of bad faith.[7] Additionally, the Respondent’s refusal to include an arbitration provision, while demanding a no-strike provision (and other broad management rights) also suggests bad faith. Looking at the totality of the circumstances, we adopt the judge’s finding that these actions by the Respondent support a finding of bad faith.

In light of our adoption of the judge’s finding of bad faith, we also adopt the administrative law judge’s findings that the Respondent unlawfully declared impasse and implemented a last, best, and final offer in the absence of a valid impasse.[8]

Amended Remedy

Despite having been found to have violated multiple provisions of the Act in an earlier proceeding, having been the subject of a successful injunction action in the federal district court, and having been found in contempt of court, the Respondent has continued to engage in some of the same unlawful activity. By its actions, the Respondent has made plain its open hostility toward its responsibilities under the Act, a hostility that by now must be obvious to the Respondent’s employees. Under these circumstances, the Board must carefully consider what remedies are necessary and appropriate to remedy the Respondent’s misconduct and to ensure that its employees understand their rights under the Act and feel free to exercise them going forward, despite what has come before.

In addition to the Board’s standard remedies for the violations found in this case, the judge has recommended and justified additional remedies, specifically compensating the Union for all bargaining expenses from November 11, 2019 through the date in the future when good-faith negotiations begin, and a reading of the notice to employees by CEO Fischel Ziegelheim, or at the Respondent’s option, by a Board agent in his presence. We agree with the judge that these remedies are warranted here.[9]

We have also modified the judge’s recommended remedy to include the same bargaining-schedule, progress-report, and bilingual requirements as our remedy in NAP I. See Noah’s Ark Processors, LLC, above at slip op. at 7–8.[10] Where, as here, a respondent continues a course of unlawful conduct that already warranted such remedies, the conduct’s continuation—and its attendant continuing deleterious effect on employee rights—typically calls for, at a minimum, all the remedies previously ordered.

Additionally, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we have amended the make-whole remedy and modified the judge’s recommended order to provide that the Respondent shall also compensate the employees for any other direct or foreseeable pecuniary harms incurred as a result of the Respondent’s unlawful implementation of its last, best, and final offer in the absence of an impasse.

Lastly, we have concluded that remedies beyond those ordered by the judge are appropriate. We have broad discretion to exercise our 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.[11] That statutory provision directs us, upon finding a violation, to require “such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of th[e] Act.” We tailor the remedies to the violations, including their nature, severity, and extent.[12] Among our remedial goals is to reaffirm to employees their Section 7 rights and to reassure them that the Respondent must respect those rights in the future.[13]

Today, as further discussed below, we explain the potential remedies the Board will consider in cases involving respondents who have shown a proclivity to violate the Act or who have engaged in egregious or widespread misconduct. Although the Board has previously ordered these remedies in cases where appropriate to do so, we more fully describe the role each remedy plays in fulfilling the Act’s overall remedial scheme. In addition, we describe why certain remedies, when ordered in combination, may encourage compliance with the Act and offer better protection of employees’ Section 7 rights.

To begin, we modify the judge’s recommended order to include a broad cease-and-desist provision, which, in addition to the cease-and-desist provisions directed at specific violations of the Act, prohibits the Respondent from “in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.”

The Board in Hickmott Foods, 242 NLRB 1357, 1357 (1979), held that a broad order is warranted “when a respondent is shown to have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees’ fundamental statutory rights.” Here, we find that each alternative prong of this standard is met: the Respondent has both shown a “proclivity to violate the Act” and has engaged in “such egregious or widespread misconduct as to demonstrate a general disregard for the employees’ fundamental statutory rights.” Id.

First, the record shows that the Respondent violated the Section 10(j) injunction related to the 2018–2019 negotiations, but despite facing sanctions and a “purge plan” from the court, simply chose to again refuse to bargain in good faith. It offered regressive proposals, refused to consider even minor changes or the Union’s proposals, adhered largely to its initial positions, and implemented its final offer without a lawful impasse. These violations seriously affected the entire unit by undermining their chosen bargaining representative, violating their right to have the Union negotiate on their behalf, and demonstrating to them in no uncertain terms that the Respondent was willing to ignore a court order in order to violate their rights. We find this more than satisfies the Hickmott standard of misconduct that is so “egregious or widespread” as to demonstrate a “general disregard for the employees’ fundamental statutory rights.” Id.[14]

Moreover, the Respondent’s repeated misconduct within only a short length of time provides ample evidence of its “proclivity to violate the Act,” the second basis for a broad order under Hickmott. Id. In addition to its violations here, we note that, as detailed in NAP I, the Respondent committed numerous serious violations in 2018 and 2019. These include bargaining in bad faith, declaring impasse, unlawfully imposing a final offer, threats to employees, coercion, failure to process union dues, interrogations (including about communications with the Board), unilateral changes to terms and conditions of employment, discharges for protected activity, and failure to pay employees as agreed in its collective-bargaining agreement. Only months later, it engaged in the conduct at issue in this case. The Respondent’s actions therefore demonstrate its habitual violation of the Act, to the point of seeming to consider it appropriate to do so.[15]

As described above, where a respondent’s conduct meets the standard for a broad order—i.e., where a proclivity to violate the Act has been established or where widespread or egregious misconduct demonstrates a general disregard for employees’ Section 7 rights—the Board must order commensurate remedies to “effectuate the policies of th[e] Act” (in the words of Section 10(c) of the Act). Cases in which the broad order standard is met necessarily involve circumstances that would lead employees to reasonably believe that the respondent does not respect their rights. In such circumstances, employees will reasonably fear that the respondent will continue to disregard the Act; consequently, to ensure that they are not chilled from exercising their rights under the Act, employees will need extra information about those rights and credible assurances that the respondent is bound by the Act and not free to violate employees’ rights.

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, we take this opportunity to present a non-exhaustive list of potential remedies that the Board will consider when a respondent has engaged in unlawful conduct warranting a broad order. We do not imply that only these listed remedies may be warranted. Nor do we intend to establish a rule that each of these remedies is always necessary where the broad-order standard is met. Nor do we hold that these remedies are appropriate only in that situation.[16] Instead, our aim is to ensure that in every case involving the type of repeated or serious misconduct recognized as permitting a broad order, the Board will consider a full range of established, potential remedies, and will not inadvertently stop short, at the expense of protecting both employees’ exercise of Section 7 rights and their willingness to exercise those rights, in determining which remedies to order. The Board’s exercise of remedial discretion, in short, should be reasoned and regular, even while it takes into account the particular circumstances of a case.[17]

While we will continue to evaluate the nature, severity, and extent of a respondent’s violations when determining which remedies are appropriate in particular cases, when a broad order is appropriate, the Board will consider at least the following established remedies, ordered in addition to its standard remedial provisions, as some or all of them may be particularly well-suited to dispelling the chilling effect of repeated or serious misconduct, especially when ordered together.[18]

Explanation of Rights: In cases “involving egregious and pervasive unfair labor practices,” we have at times ordered an explanation of rights that “ensures that employees are fully informed of their rights, mitigates the chilling effect of past unlawful conduct, and may help prevent further unlawful conduct.” David Saxe Productions, 370 NLRB No. 103, slip op. at 6 (2021). “This is especially true when [ ] the rights of so many employees have been broadly suppressed for an extended period of time and in numerous ways.” HTH Corp. d/b/a Pacific Beach Hotel, 361 NLRB 709, 714 (2014), enfd. in rel. part sub nom. HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016). This document, which may be posted, read aloud along with the notice, and/or mailed, informs employees of their rights in a more comprehensive manner, as is appropriate given the greater severity of the chilling effect on their willingness to exercise those rights in the face of repeated, egregious, or widespread unfair labor practices. Broad order cases, by their very definition under Hickmott Foods, above, will often satisfy the criteria for an explanation of rights. These cases particularly necessitate such detailed information because they involve respondents that have been found to violate and disregard employees’ rights in numerous, egregious, or repeated ways. Mitigating the chilling effect of the unfair labor practices on employees and ensuring that they understand their rights is a part of making them whole after the widespread violations they have experienced. The explanation of rights does this in an accessible manner.

Notice/Explanation of Rights reading: The Board has ordered the notice-reading remedy in cases where the respondent’s unlawful conduct has been “sufficiently serious and widespread” to ensure that the content of the notice is disseminated to all employees.[19] The same considerations are present in broad order cases.[20] Notice reading is a way to let in a “warming wind of information” to not only alert employees to their rights but also impress upon them that, as a matter of law, their employer or union must and will respect those rights in the future.[21] Reading the notice (and any explanation of rights) aloud disseminates that information through the work force in a clear and effective way. This awareness, in turn, means that respondents will be less able to violate the Act unnoticed as a matter of course. By the nature of their violations, broad-order respondents have either sent a message that they have little regard for employees’ statutory rights or the Board’s authority, or their egregious and widespread violations have shown their determination to chill employees from exercising their rights and impose adverse consequences on them for doing so. Notice reading offers employees a chance to hear, in a formal setting and in the presence of other employees and a Board agent, that their rights have value and that the Board takes those rights seriously.[22] Notice reading also underscores for the respondent that, under a broad order, it cannot simply find another more creative way to violate the Act. Both results help undo the chill caused by the broad-order conduct on employees’ willingness to exercise their rights. The Board may also consider including a provision allowing a union agent to attend the notice reading in cases where the union is a charging party and/or the certified bargaining representative.[23] In cases where a particular high-ranking manager or corporate official was directly responsible for violations that justify the reading, the Board has required that individual (or, at the individual’s election, a Board agent in that individual’s presence) to read the notice in order to make the remedy fully effective and provide a counterweight to the significant chill they have created by their unlawful conduct.[24] If warranted, that provision should also be considered in broad order cases for the same reason.

In broad order cases where a reading of the notice (and/or any explanation of rights) is ordered, we will also require the Board agent to distribute the notice and explanation of rights to employees at the meeting before the reading.[25] Such distribution will facilitate employee comprehension as employees will be able to follow along as the notice and explanation of rights are read aloud. Lastly, it offers employees a chance to retain the documents for future reference and to review them in private free from their employer’s or union’s possible observation should they choose to do so.[26] A copy of the notice and explanation of rights distributed by the Board agent to all attendees is a neutral method of providing them with the information they need to understand their rights and the offending party’s obligations.[27]

Notice/Explanation of Rights mailing: Similarly, mailing the notice and explanation of rights not only reaches employees and former employees who would not see a posted document or be able to attend the reading, but also allows them to “privately review the documents free from [a] [r]espondent’s potential scrutiny for as long as necessary to understand their rights and as often as necessary to reinforce their rights in the future.” Pacific Beach, 361 NLRB at 715. In broad order cases, which involve multiple types of violations, violations that pervade a workplace, or a respondent with a proclivity to violate the Act, the privacy accorded employees by a mailing will help to rebuild employees’ confidence in and understanding of their rights without fear of retaliation or calling attention to their choice to accept and view the notice and explanation of rights (or refrain from doing so). A mailed notice that they can keep and refer to in the future also serves as a practical document for employees who have seen a broad order respondent repeatedly or egregiously trample their rights, and who now particularly need to be aware of the protections they have under the broad order in case that respondent continues its unlawful behavior.[28]

Presence of supervisors/managers at the notice/Explanation of Rights reading: In cases where supervisors have been directly involved in the unfair labor practices that necessitate a broad order, the Board will consider also requiring their presence at the notice reading (and reading of the explanation of rights, if ordered). Supervisors have a significant role in an employer’s compliance with the Act. Because they are frequently the most direct links between employees and management, the conduct of supervisors and managers immediately influences employees’ confidence in their rights under the Act—and their understanding of their employer’s or union’s willingness to respect those rights. They may have been the means by which the respondent engaged in the unfair labor practices that support a broad order. They may have been a part of a culture that threatened employees’ free exercise of their rights to engage in protected activity or to refrain from doing so. Therefore, their attendance at the notice reading not only “convey[s] a message to employees that their supervisors are just as responsible as upper management for adhering to the law, it also exposes the supervisors to information concerning their own substantive obligations under the Act.” Pacific Beach, above, at 716. Supervisor attendance means that those with whom employees will have the most direct contact, and who may have been directly responsible for the violations, have been made aware, in no uncertain terms, of the employees’ rights, the respondent’s violations, and the obligations to not only cease the unlawful conduct but also to refrain from infringing on those rights in other ways in the future.[29] After the kinds of violations that prompt a broad order, this information helps undo the chill that settles over employees as they move forward in their work with, potentially, the very same individuals who harmed them in the past. It also means that supervisors cannot in future claim ignorance or non-involvement with infringements on employees’ protected rights. To ensure that records exist to show the supervisors’ compliance and to reassure employees that they will not simply fail to appear for the reading as ordered, the Board may also consider ordering the respondent to retain sign-in sheets recording the presence of each supervisor at the reading. The Board may also include a requirement that the respondent give each supervisor a copy of the notice and any explanation of rights at the reading, and that it maintain proof that this has been done.[30]

Notice signing: We have previously ordered a responsible representative of both union and employer respondents to sign the notice to underscore their obligation to cease their unlawful conduct and respect employees’ rights under the Act.[31] In broad order cases, a notice signed by a person who bears significant responsibility in the respondent’s organization helps reassure employees that the respondent is officially committed ‘from the top down’ to compliance with the Board’s order—an important restorative component when systematic egregious or repeated violations reasonably leave employees with the impression of a culture of hostility toward protected activity.[32] Moreover, we find this remedy particularly appropriate where the individual ordered to sign either committed the unfair labor practice found or is viewed by employees as the face of the conduct underlying the violations.[33]

Publication: A publication remedy requires a respondent to publish the notice and any explanation-of-rights document in “local publications of broad circulation and local appeal.”[34] Pacific Beach, above, at 715. As courts have long recognized, “where the violations are flagrant and repeated, the publication order has the salutary effect of neutralizing the frustrating effects of persistent illegal activity by letting in a warming wind of information and, more important, reassurance.” NLRB v. Union Nacional de Trabajadores, 540 F.2d 1, 12 (1st Cir. 1976) (internal quotations omitted), cert. denied 429 U.S. 1039. We have ordered publication in egregious cases, in both broad order and non-broad order situations, and will continue to do so as necessary to remedy the harms found. However, we find the publication remedy particularly warrants consideration in broad order situations where there may be many employees affected by any number of unfair labor practices over a potentially lengthy period of time by an employer with a proclivity to violate the Act. In those cases, a respondent may not have current mailing information for former employees who will not see a posted notice.[35]

Extended posting of the notice and Explanation of Rights: Although the Board’s standard notice posting period is 60 days, we have ordered extended posting periods to better mitigate the chill of what the Fifth Circuit described as the “lore of the shop.” Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978). In broad order cases, particularly those involving coercion, threats of facility closure, discharge of union supporters, refusals to bargain or recognize the union, and other repeated or flagrant violations, a respondent’s unfair labor practices are often so pervasive that their memory and impact on employees cannot be quickly erased. To the contrary, such violations are likely to continue to erode employees’ willingness to exercise their rights for a period potentially extending into years, with the information about what the respondent is willing to do transmitted to new hires by existing employees who want to warn them of the risk of infringement on their protected rights. Even employees who were not direct targets will be likely to have experienced a chill in their willingness to exercise rights from watching coworkers face the consequences of protected activity. This is especially true for broad order cases, when the effects of the unfair labor practices linger longer because of the respondent’s repeated violations or because of the widespread or egregious nature of the conduct.[36] The length of time for the extended posting will necessarily vary depending on the facts of each case.[37]

Visitation: Visitation permits the Board to inspect a respondent’s bulletin board to ensure that the notice is posted in accordance with our order. Visitation also permits the Board to inspect the records of a respondent, and to take statements from its officers and employees (and others) for the purpose of determining or securing compliance with our orders, including, where appropriate, compliance with the procedures we herein establish for notice readings, including distribution of the materials to be read and attendance by supervisors (where ordered).[38] Although the Board has rejected so-called standard visitation clauses, it will grant narrowly tailored visitation on a case-by-case basis “when the equities demonstrate a likelihood that a respondent will fail to cooperate or otherwise attempt to evade compliance” and “it appears possible that the respondent may not cooperate in providing relevant evidence unless given specific, sanction-backed directions to do so.” Cherokee Marine Terminal, above at 1083 fn. 14.[39] The visitation remedy is particularly appropriate in conjunction with remedies that require compliance over time, such as (but not limited to) extended notice posting or record-keeping requirements.[40] In broad order cases where the often egregious or widespread nature of the violations may reasonably be found to justify a longer posting period or other ongoing remedies, a visitation order helps employees feel confident that the respondent will have to comply for the entire period and will not as easily be able to ignore its obligations under the Board’s order.[41] The visitation remedy, then, is a form of support for employees to better ensure they continue to have consistent access to the information that the Board has ordered for them.[42] It will further “relieve employees of the onus of a watchdog role with respect to the Respondents’ compliance, a factor we find particularly important in reducing the risk of retaliation against them and in restoring their confidence in their statutory rights.” Pacific Beach, above at 717.

Having found a broad order appropriate in this case, then, we now consider these additional remedies. For the reasons below, in addition to those ordered by the judge,[43] and the modifications and broad order we discussed above, we have carefully considered the list of established remedies already described, and we order the following remedies based on the facts before us to inform employees of their rights, restore their confidence in those rights after the Respondent’s violations, and undo some of the chill to the free exercise of those rights that the Respondent has caused: (1) an explanation-of-rights document; (2) reading of the notice and explanation of rights by the Respondent’s CEO Fischel Ziegelheim or a Board agent in Ziegelheim’s presence, and distribution of the notice and explanation of rights at the meeting by a Board agent; (3) signing of the notice and explanation of rights by Ziegelheim; (4) mailing of the notice and explanation of rights; (5) extended posting periods for the notice and explanation of rights; and (6) visitation to ensure compliance with the extended posting period. We emphasize that in other cases, different combinations of remedies or additional remedies may be appropriate under the particular circumstances.[44]

An explanation of rights. In cases (like this one) involving egregious and pervasive instances of bad-faith bargaining that impact the entire unit, ordering the posting of an explanation of rights, with clear general examples of unfair labor practices that are specifically relevant to the unfair practices found in this case, ensures that employees are fully informed of their rights, mitigates the chilling effect of the Respondent’s violations, and may help prevent further unlawful conduct.[45] Thus, we have attached an explanation of rights as Appendix B to this Decision and Order.[46] We order the Respondent to post the explanation of rights for the same period and under the same conditions as the notice, and, as discussed below, read and mail the explanation of rights to its employees. The notice and explanation of rights meet the same bilingual requirements as our remedy in NAP I. See Noah’s Ark Processors, LLC, above at slip op. at 7–8.
Reading of the notice and explanation of rights by the Respondent’s CEO Ziegelheim. We agree with the judge that notice-reading, by Ziegelheim or a Board agent in Ziegelheim’s presence, is amply warranted under our existing precedent.[47] For the same reasons, we will order the explanation of rights also be read aloud by Ziegelheim or a Board agent in his presence. Where, as here, there is a recalcitrant or recidivist employer, or one who has committed widespread or egregious violations, a public reading is an “effective but moderate way to let in a warming wind of information and, more important, reassurance.” J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969). We also order simultaneous distribution of the notice and explanation of rights at the notice reading to facilitate employee comprehension of both documents as they hear them read.[48]
Signing of the notice and the explanation of rights by Ziegelheim. Ziegelheim represented the Respondent at two negotiation sessions during the most recent round of bad-faith bargaining and, as CEO, he would have been significantly involved in the creation and approval of the Respondent’s positions. Because the Union understood Ziegelheim to be the Respondent’s “chief negotiator,” it would be clear to employees that one of the most senior members of management chose to disregard one of the Respondent’s most fundamental obligations: to bargain in good faith with the employees’ chosen representatives. We therefore order Ziegelheim to sign the notice and the explanation of rights. We find this remedy appropriate because the Respondent’s unlawful conduct emanated from the top, and so too should the reassurances that the unlawful conduct will end.[49] Doing so will help restore employees’ confidence in the Respondent’s commitment, from its most senior representative, to respect the bargaining process as well as its assumption of the remedial obligations imposed by law.
Mailing of the notice and the explanation of rights. Mailing the notice and explanation of rights to each employee will reach individuals who would not otherwise see the posted and distributed documents but who were affected by the Respondent’s unlawful conduct. This includes individuals who, because of the significant length of time that has passed between the violations and this decision, such as former employees, now lack access to the facility,[50] and those unable to attend the meeting at which the documents are to be read and distributed.[51] In addition, a mailing remedy will give employees who do attend the meeting a chance to review the documents in private, particularly if they are uncomfortable publicly accepting and reviewing the notice and explanation of rights in the facility in possible view of their employer. Accordingly, we order mailing of the notice and explanation of rights, in addition to ordering the Respondent to provide both documents to employees in all the ways the Respondent customarily communicates with its employees.[52] The Respondent shall mail copies of the signed notice and explanation of rights to each employee who was employed in the unit at any time since November 11, 2019 (the date of the first court ordered negotiation session during which the Respondent renewed an earlier presented regressive proposal), within the time set forth in our Order. The Respondent must maintain and make available for inspection proofs of mailings and receipts in connection with this mailing obligation.[53]
Extended posting periods for the notice and explanation of rights. We further find that extended posting of the notice and explanation of rights is essential to achieve the goals of making sure employees understand their rights while also helping to mitigate what the Fifth Circuit has called the chilling “lore of the shop.” See Pacific Beach, supra at 714 (citing Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978), and noting that pervasive unfair labor practices “likely live on in employees’ memories and could continue to erode employees’ willingness to exercise their rights years after the actual violations”). Extended posting “also serves as a constant reminder of the Respondents’ obligation to abide by the Act, thus helping to change its workplace culture while also ensuring that supervisors and managers are aware of their own responsibilities to adhere to the law and understand what rights the Act protects.” Id. This is particularly important where, as here, the Respondent has engaged in unlawful conduct that impacted the entire bargaining unit and was so egregious as to warrant a broad order. An extended posting period will help dispel the likely lingering effects of the Respondent’s unfair labor practices on employees. We therefore shall order the Respondent to post the remedial notice and explanation of rights for 1 year.
Visitation to ensure compliance with the extended posting period. Because we have ordered the Respondent to post the notice and explanation of rights for a period of 1 year, we deem it necessary and appropriate to take further action to ensure that our Order is fully carried out during that period. This conclusion is strengthened by the fact that the Respondent’s conduct in this case, as well as in its earlier appearances before us (and the court), “demonstrate[s] a likelihood that [it] will fail to cooperate or otherwise attempt to evade compliance” and “it appears possible that the respondent may not cooperate in providing relevant evidence unless given specific, sanctioned-backed directions to do so.” Cherokee Marine Terminal, above at 1083 fn. 14. The Respondent, through its continuous misconduct and unwillingness to comply with prior directives placed on it by the Board and the court, has undermined any reasonable expectation that we can rely on it to accurately and sufficiently self-report its compliance and, therefore, we find a narrowly tailored visitation clause appropriate.[54] Under our order, a duly-appointed Board agent may enter the Respondent’s facility for a period of 1 year, at reasonable times and in a manner not to unduly interfere with the Respondent’s operations, for the limited purpose of determining whether the Respondent is in compliance with our posting and mailing requirements. In this broad-order case with egregious violations that affected every member of the bargaining unit, we note that visitation will help relieve employees of the burden of a watchdog role with respect to the Respondent’s compliance. As we have explained, this is “particularly important in reducing the risk of retaliation against them and in restoring their confidence in their statutory rights.” Pacific Beach, above, at 717. Our visitation clause carries a 1-year time limit, directly corresponding with the requirements concerning the posting of the notice and explanation of rights. The purpose of the visitation is limited and clearly defined in relation to compliance with that remedy (as opposed to general compliance or a search for new violations). Finally, the clause specifically defines the third parties included in its scope to cover those with knowledge regarding posting and maintenance of the notice and explanation of rights in the manner and time required.[55]

ORDER

The National Labor Relations Board orders that the Respondent, Noah’s Ark Processors, LLC d/b/a WR Reserve, Hastings, Nebraska, its officers, agents, successors, and assigns, shall

Cease and desist from

(a) Failing and refusing to bargain in good faith with United Food and Commercial Workers Local Union No. 293 (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining unit.

(b) Changing unit employees’ terms and conditions of employment by implementing its collective-bargaining proposal without first bargaining with the Union to an overall good-faith impasse for a successor collective-bargaining agreement.

(c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union in good faith and at reasonable times as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. Such bargaining sessions shall be held for a minimum of 24 hours per month, for at least 6 hours per bargaining session, or, in the alternative, on another schedule to which the Union agrees. The Respondent shall submit written bargaining progress reports every 15 days to the compliance officer for Region 14, serving copies thereof on the Union. The appropriate unit is:

All production, maintenance, shag drivers and distribution employees, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act.

(b) Rescind the changes in the terms and conditions of employment for its unit employees that were unilaterally implemented under the January 13, 2020 final offer.

(c) Make unit employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the unlawful changes in terms and conditions of employment that were unilaterally implemented under the January 13, 2020 final offer, in the manner set forth in the remedy section of the judge’s decision.

(d) Make whole any affected employee bargaining committee members for any earnings lost while attending bargaining sessions in the manner set forth in the amended remedy section of this decision, to the extent those earnings were not reimbursed by the Union.

(e) Compensate all affected unit employees and former unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 14, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee.

(f) File with the Regional Director for Region 14, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting their backpay award.

(g) Reimburse the Union for its costs and expenses incurred in collective bargaining during the period beginning November 11, 2019, through January 24, 2020, including but not limited to any lost wages the Union paid to employee bargaining committee members for bargaining conducted during working hours. Upon receipt of a verified statement of costs and expenses from the Union, the Respondent promptly shall submit a reimbursement payment, in the amount of those costs and expenses, to the compliance officer for Region 14 of the National Labor Relations Board, who will document receipt and forward the payment to the Union.

(h) Preserve and, within 14 days of a request or such additional time as the Regional Director for Region 14 may allow for good cause shown, provide at a reasonable place designated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(i) Post at its Hastings, Nebraska facility, copies of the attached notice and explanation of rights marked “Appendix A” and “Appendix B.”[56] Copies of the notice and the explanation of rights, on forms provided by the Regional Director for Region 14, after being personally signed by CEO Fischel Ziegelheim, shall be posted by the Respondent and maintained for 1 year in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at its Hastings facility at any time since November 11, 2019.

(j) Within 14 days after service by the Region, duplicate and mail, at its own expense, after being signed by the Respondent’s CEO Fischel Ziegelheim, copies of the attached notice marked “Appendix A” and the attached explanation of rights marked “Appendix B” in both English and Spanish to all current and former unit employees employed by the Respondent at its Hastings, Nebraska facility at any time since November 11, 2019, at their home addresses. The Respondent shall maintain proofs of mailings as set forth in the Amended Remedy section of this Decision.

(k) Hold a meeting or meetings during work hours at its facility in Hastings, Nebraska, scheduled to ensure the widest possible attendance of bargaining unit employees, at which the attached Notice to Employees marked “Appendix A” and the attached explanation of rights marked “Appendix B” will be read to employees in English and Spanish (and any other languages deemed appropriate by the Regional Director) by CEO Fischel Ziegelheim in the presence of a Board Agent and, if the Union so desires, a union representative, or, at the Respondent’s option, by a Board agent in the presence of CEO Fischel Ziegelheim and, if the Union so desires, a union representative. A copy of the notice and the explanation of rights, in English and Spanish (and any other languages deemed appropriate by the Regional Director) will be distributed by a Board agent during this meeting or meetings to each unit employee in attendance before the notice is read.[57]

(l) For a 1-year period, allow the Board or any of its duly-authorized representatives to obtain, in oral and documentary forms, discovery and evidence from the Respondent, its officers, agents, successors or assigns, and its employees or former employees having knowledge concerning the posting and maintenance of the notice and the explanation of rights as well as the mailing and dissemination of those documents as set forth in the Amended Remedy section of this Decision in the manner and for the time required. Such visitation shall be conducted under the supervision of the Regional Director for Region 14 and shall be narrowly limited to assessing and ensuring the Respondents’ compliance with this Order as described in the Amended Remedy. The Respondent shall make available for inspection proofs of mailings and receipts as set forth in the Amended Remedy.

(m) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.

Dated, Washington, D.C. April 20, 2023

Member Kaplan, concurring in part and dissenting in part.

I agree that the Respondent violated Section 8(a)(5) and (1) of the Act by bargaining in bad faith with the Union and by implementing its final offer in the absence of a valid impasse.1 I also agree that a broad cease-and-desist order is warranted here.2 And like my colleagues, I would order the Respondent to reimburse the Union for its bargaining expenses and to read the remedial notice to its employees, although my versions of these remedies differ from theirs, as explained below.

Given the unanimous decision to find the violations as alleged and to order some extraordinary remedies, this case should have been simple. My colleagues, however, decided to use this case not only to order numerous additional extraordinary remedies but also to engage in an extended discussion of extraordinary remedies in general. This is especially puzzling because my colleagues note, correctly, that the Board has broad discretion in exercising its remedial powers under Section 10(c) of the Act. The Board’s determination of appropriate remedies in a particular case is not limited by the General Counsel’s or judge’s recommendations or the parties’ exceptions.3 Accordingly, the majority easily could have written a decision setting forth the extraordinary remedies they deem warranted here, with supporting justifications for each based on the facts and circumstances this case presents. If they had, I would have limited myself to explaining, as I do below, whether, remedy by remedy, I agree or disagree, and why. But rather than follow this regular practice, the majority takes a different—and troubling—path.

My colleagues say that “an important aspect” of their decision is to “provid[e] all interested parties with a reminder of the remedies that may be particularly appropriate in broad-order cases.” But the Board does not issue advisory opinions (except in narrow circumstances not present here).4 And, because the Board has never previously said that a broad cease-and-desist order may make other remedies “particularly appropriate,” let alone enumerated what those “particularly appropriate” remedies are, it is not accurate to say that the majority’s position is merely a reminder of available remedies.

The fact of the matter is that my colleagues are advising the General Counsel regarding extraordinary remedies she might seek in future cases and (implicitly but unmistakably) even encouraging her to seek them. And by making broad cease-and-desist orders the predicate for these extraordinary remedies, the majority’s opinion also tacitly encourages the General Counsel to seek broad orders more frequently in order to put those remedies in play.

My colleagues clearly believe that it is appropriate to provide litigation advice to the General Counsel. I do not. My colleagues are improperly involving the Board in the General Counsel’s decisions regarding how to prosecute unfair labor practice cases, decisions the Act clearly gives the General Counsel exclusive authority to make.5 I have not found any other case in which the Board has directly advised the General Counsel how to litigate future cases,6 with good reason. In addition to the fact that doing so constitutes an improper intrusion into the General Counsel’s exclusive authority under Section 3(d), any one of those cases may end up before the Board, and many will. Surely the Board ought not provide litigation advice to a party that will ultimately appear before it as a litigant. Making matters worse, all this is entirely unnecessary because the Board has authority under Section 10(c) to order appropriate remedies whether the General Counsel asks for them or not. Therefore, the Board’s remedial options in future cases will be the same, regardless of the General Counsel’s litigation choices.

Further, my colleagues include in their decision a long discourse about remedies in general. In doing so, they seem to be under the impression that they are making new law. They are not. Contrary to my colleagues’ apparent misunderstanding, any discussion that is not necessary for deciding the case before us is mere dicta, and my colleagues’ discussion of remedies that may be appropriate whenever they deem a broad cease-and-desist order warranted is unnecessary to decide what remedies are warranted here.7 That decision is based on the facts and circumstances presented in this case. Indeed, my colleagues acknowledge as much. They do not hold that certain remedies must be ordered whenever a broad order issues, nor do they hold that certain remedies cannot be ordered except in tandem with a broad order, or that remedies they do not discuss are precluded. In fact, they state to the contrary on each of these points. “We do not imply,” they write, “that only these listed remedies may be warranted. Nor do we intend to establish a rule that each of these remedies is always necessary where the broad-order standard is met. Nor do we hold that these remedies are appropriate only in that situation.” In other words, my colleagues admit that the decision whether to order one or more extraordinary remedies and, if so, which ones is entrusted, in each case, to the Board’s discretion. I agree. That was the law before today’s decision, and that remains the law after today’s decision.

Accordingly, the majority’s treatise on extraordinary remedies does not change Board law. Neither does it limit the Board’s discretion going forward. My colleagues say that the “aim” of their lengthy musings is “to ensure that in every case” where a broad order is deemed warranted, “the Board will consider a full range of . . . potential remedies, and will not inadvertently stop short . . . in determining which remedies to order.” But, again, as my colleagues themselves recognize, the Board has complete authority—subject to judicial review and within the constraints of Section 10(c)—to consider and determine the appropriate remedies in each case that comes before it. Should a future Board decide to “stop short,” in my colleagues’ estimation, it will have the authority to do so, unconstrained by anything in the majority’s remedial discourse, which serves no real purpose other than as a preview of coming attractions under the Board’s current majority.8

I turn now to the non-dicta portion of the remedy section in the majority’s decision, involving the extraordinary remedies my colleagues have decided to order in this case.9 For the reasons explained below, I believe most of those remedies are unwarranted.

The Bargaining-Expenses Remedy. I agree with my colleagues, for the reasons they state, that the Respondent should be required to compensate the Union for its bargaining expenses.10

I disagree with my colleagues bargaining-expenses remedy in one respect, however. Contrary to my colleagues, and for reasons I have previously set forth, I would not require the Respondent to pay employees for earnings they lost while attending bargaining sessions to the extent those earnings were not reimbursed by the Union. See Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118, slip op. at 2–3 fn. 6 (Member Kaplan, dissenting in part). Neither would I include, in calculating the reimbursement of the Union’s bargaining expenses, amounts spent by the Union to reimburse employee members of the Union’s bargaining committee. Id.11

The Notice-Reading Remedy. I agree with the judge and the majority that the facts and circumstances warrant ordering the Respondent to read the remedial notice to its employees. I part ways with my colleagues, however, in two respects.

First, I would not order that the notice be read by the Respondent’s CEO, Fischel Ziegelheim, or by a Board agent in his presence.12 Consistent with the corresponding remedy the Board ordered in its first decision involving the Respondent, I would require that the notice be read by a high-ranking management official or, at the Respondent’s option, by a Board agent in the official’s presence.13

Second, contrary to my colleagues, I would not order the Respondent to distribute copies of the notice to employees at the meeting where the remedial notice is read. The majority cites no precedent for ordering this remedy, and I am not aware of any.14 Nor do I believe that my colleagues’ novel remedy is justified in this case. The majority contends that it is warranted in order to “facilitate employee comprehension” during the reading and to allow review of the notice in a “safe and comprehensible manner” thereafter. This rationale is untethered from the realities of this case. The meat of the remedial notice is readily understood. Were it not for the multiple unwarranted extraordinary remedies the majority is ordering, it would also be relatively short. The notice will be read in both English and Spanish, and there is no good reason to believe that the Respondent’s employees will be unable to comprehend it. Moreover, the notice, in both English and Spanish, will be posted in all places where notices to employees are customarily posted, and it will also be distributed to employees by electronic means if the Respondent customarily communicates with its employees by such means. These standard remedies provide ample opportunity for employees to absorb its content.15

The Notice-Signing Remedy. My colleagues order CEO Ziegelheim to sign the notice as well as read it. Here, I dissent in full. The majority cites no court precedent enforcing such a remedy, and I am not aware of any.16 Although the Board has ordered this remedy in a handful of cases, see, e.g., Three Sisters Sportswear Co., 312 NLRB 853, 880 (1993) and cases cited there, compelling a named individual to sign the notice may be even more objectionable than the just-discussed notice-reading remedy. As noted above, the District of Columbia Circuit has upheld notice reading by a named individual where the option is provided of having a Board agent read it instead. To state the obvious, there is and can be no saving option of having a Board agent sign the notice instead of Ziegelheim.17 Neither does the majority’s order leave the Respondent free to select the signer from among its managers, as the standard requirement of notice-signing by an “authorized representative” does. As a result, the majority’s notice-signing remedy raises a compelled-speech issue. “[F]reedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 713 (1977)). The option of having a Board agent read the notice permits Ziegelheim to exercise his First Amendment right not to speak at all. The majority’s notice-signing remedy does not.18

The Notice-Mailing Remedy. My colleagues order the Respondent to mail the remedial notice to its employees. Here as well, I dissent. Notice posting is the standard remedy for advising employees of their Section 7 rights and of a respondent’s unlawful conduct. In its 1996 decision in Indian Hills Care Center, the Board modified its standard notice-posting remedy to provide for notice mailing in the event a respondent has gone out of business or closed the facility where the unfair labor practices were committed.19 But the Board does not order notice mailing outright unless the respondent has already gone out of business or closed that facility,20 or other circumstances would make notice posting futile.21 So far as the record shows, the Respondent remains in business and has not closed its Hastings, Nebraska facility, and its employees regularly report to that facility.

My colleagues say that a notice-mailing remedy is warranted because some employees may be unable to attend the meeting at which the notice is read. But it is always the case that some employees may miss a notice reading, and the fact that those employees may read the posted notice takes care of this concern. The majority also says that notice-mailing is warranted to ensure the notice reaches former employees. Again, it is always the case that there may be former employees who cannot access the facility to see the posted notice, yet the standard remedy is to require only that the notice be posted.22 In other words, the Board accepts that former employees may not—indeed, probably will not—see the notice. The Board reasonably accepts that outcome, since former employees of a wrongdoing employer are no longer at risk of being interfered with, coerced, or restrained by that employer in exercising their Section 7 rights in the future. This is equally true regardless of whether an employer’s unfair labor practices warranted a narrow or broad cease-and-desist order. Accordingly, my colleagues have no valid basis for linking notice mailing to broad orders.23

Finally, my colleagues justify notice mailing on the basis that, in cases where broad orders are appropriate, employees may be fearful of “reading a posted notice in the workplace under their employer’s scrutiny.” This is a completely unsubstantiated concern. As highlighted above, it is a standard remedy in all unfair labor practice cases for the Board to order that the employer post a notice in its workplace, and employers have been posting such notices for nearly a century.24 Never, to my knowledge, has any party ever complained to the Board that this remedy is either insufficient or ineffective because employees may be afraid to read the notice. Nor, to my knowledge, has any similar concern been raised with regard to the numerous other notices that are routinely posted in workplaces, such as Equal Employment Opportunity Commission notices or state wage and hour notices. Accordingly, my colleagues’ hypothetical possibility is not a persuasive justification for their decision to order notice mailing here.

The Explanation-of-Rights Remedies. I also dissent from the majority’s decision to order the Respondent to post, read, and mail an “explanation of rights.” Until very recently,25 the Board had ordered the posting of an explanation of rights in just three cases, in each of which the respondent had violated the Act in many and varied ways, and it had ordered the reading and mailing of an explanation of rights in only one of those cases, Pacific Beach Hotel, where the respondent’s history of unfair labor practices and defiance of prior Board and court orders was such as to render that case virtually sui generis.26 The Respondent is a recidivist, but the only Section 7 right implicated in this case is the right of employees to bargain collectively through representatives of their own choosing. The remedial notice will inform the Respondent’s employees of that right. Accordingly, there is no valid basis to require even the posting of an explanation of rights in this case, let alone a reading and mailing as well.

The Extended-Posting Remedy. The majority orders the Respondent to post the remedial notice and the explanation of rights for one year, unless the parties reach a collective-bargaining agreement before the year is up. I dissent.

The standard notice-posting period is 60 days. I have found just three cases in which the Board has ordered the remedial notice to be posted for more than 60 days. One of those cases was Pacific Beach Hotel, where the scope of the employer’s misconduct could reasonably be described as “off the charts.” A second was Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177 (2018),27 where the Board, in justifying the extended notice-posting period, explained that this was the sixth case involving this respondent, in each of which it had committed “serious and widespread violations of the Act.” Id., slip op. at 13. The third was UPMC, 366 NLRB No. 185 (2018),28 where the employer committed “wide-ranging” violations of Section 8(a)(3), (2), and (1). In that case, the Board ordered a 120-day notice-posting period. Id., slip op. at 7–8. Even assuming the Respondent’s conduct was as egregious as the respondent’s in UPMC, the majority has not shown that it was more so, or so much more so as to justify a 1-year notice posting here. Absent such a showing, the discrepancy between the 120-day posting period in UPMC and the 1-year posting period my colleagues impose here appears to be arbitrary and capricious.29

The Visitation Remedy. My colleagues also impose a visitation remedy, under which the Respondent must permit a Board agent to enter its facility to determine “whether the Respondent is in compliance with our posting and mailing requirement.” For reasons already stated, the majority should not impose those requirements in the first place. And for several reasons, they should not impose visitation, either.

To begin with, the Board already has a standard, well-established means to ensure compliance with its orders. Every order in an unfair labor practice case contains a paragraph requiring the respondent to file a sworn certification attesting to the steps it has taken to comply. Traditionally, the Board has considered the respondent’s self-reporting, under oath, of compliance to be sufficient, including in cases where the Board has imposed a broad cease-and-desist order.30 My colleagues, however, find this remedy insufficient here.31 Indeed, they take the view that the Board’s long-standing methods for ensuring parties’ compliance may be insufficient in every broad-order case, and they indicate that they will consider a visitation remedy in all such cases.32 Although they deny that they will find visitation and the other extraordinary remedies they canvass presumptively appropriate in every broad-order case, the majority deems it necessary to justify their decision not to issue certain extraordinary remedies in this case. In any event, the majority points to no evidence that the standard sworn attestation has proven inadequate to secure compliance in broad-order cases.

The standard for imposing visitation is “a likelihood that a respondent will fail to cooperate or otherwise attempt to evade compliance.” Cherokee Marine Terminal, 287 NLRB 1080, 1083 (1988). My colleagues do not base their visitation remedy on a likelihood of noncompliance. They base it on the 1-year duration of their posting remedies. They do, however, also conclude that the Cherokee Marine Terminal standard is met here, based, they say, on “the Respondent’s conduct in this case, as well as in its earlier appearances before us.” At best, this conclusion is underexplained; at worst, it suggests that recidivism will routinely entail visitation, despite the Board’s insistence that it “remain an extraordinary remedy to be used only when warranted by the facts of a particular case.” Id. at 1081.

In dissenting from this remedy, I note that not only does my colleagues’ blanket endorsement of a visitation remedy in cases involving broad orders fail to satisfy the requirements set forth in Board law, it also constitutes an unnecessary intrusion on property owners’ rights.33 Even assuming that something more than self-reporting under oath is called for, a due regard for those rights favors a less intrusive means of policing compliance than ordering respondents to grant Board agents access to a workplace. There is an obvious alternative: requiring respondents to furnish photographic evidence of compliance.34 This would be rather burdensome where, as here, mailing remedies are imposed in addition to posting remedies, but at least it would avoid needless abridgment of property rights. Importantly, it would also avoid an equally unnecessary expenditure of Agency resources. In this particular case, the closest Board office to the Respondent’s Hastings, Nebraska facility is Region 14’s subregional office in Overland Park, Kansas, 311 miles away. I cannot condone spending agency funds, not to mention taxpayers’ dollars, on the time and expense associated with that drive, especially considering that other methods for confirming compliance that do not require a 311-mile drive are available.35

For these reasons, as to the above issues, I respectfully concur in part and dissent in part.

Dated, Washington, D.C. April 20, 2023

[1] We correct certain errors in the judge’s analysis. First, the judge erroneously found that the Respondent misled the Union by stating that a claim for breach of the parties’ contract could be brought and litigated in state court if the contract did not have an arbitration provision. State and federal courts have concurrent jurisdiction to adjudicate the merits of such a claim brought under Sec. 301 of the Labor Management Relations Act. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). Second, the judge inadvertently stated that the Union modified its position on funeral leave on December 9, 2019; it is undisputed that the Union did so on November 26, 2019. Finally, the judge inadvertently included the phrase “at its Hastings, Nebraska facility” when describing the unit here. There is no record evidence that the parties ever included that phrase in the unit description, nor did the Board use it when describing the unit in Noah’s Ark Processors, LLC d/b/a WR Reserve, 370 NLRB No. 74 (2021) (NAP I), enfd. 31 F.4th 1097 (8th Cir. 2022).

[2] In addition to bargaining in bad faith, declaring impasse, and imposing a final offer without a valid impasse, the Respondent also: threatened employees with discharge for engaging in protected concerted activities; told employees they were terminated for engaging in protected concerted activities; threatened to call the police because employees engaged in protected concerted activities; coerced employees into signing preprinted forms prohibiting disclosure of their employment information without their written consent; failed and refused to deduct and remit dues to the Union pursuant to valid, unexpired, and unrevoked checkoff authorizations during the term of any collective-bargaining agreement; coercively interrogated employees about whether they had received a subpoena from the National Labor Relations Board; coercively interrogated employees about their union activities; coercively interrogated employees about their communications with agents of the National Labor Relations Board; told employees that they must meet with a company attorney before meeting with an agent of the National Labor Relations Board investigating unfair labor practices filed against the Respondent; discharged employees for engaging in protected concerted activities; bypassed the Union and dealt directly with unit employees regarding their terms and conditions of employment; changed the terms and conditions of employment of unit employees by granting wage increases and implemented a new wage system without first notifying the Union and giving it an opportunity to bargain; and changed unit employees’ hourly wage rates and paid them wages contrary to the parties’ collective-bargaining agreement without the Union’s consent. NAP I, supra.

[3] To remedy the bargaining violations, the NAP I Board ordered the Respondent to, among other things: (1) on request, bargain with the Union in good faith and at reasonable times on the terms and conditions of employment for unit employees and, if an understanding is reached, embody the understanding in a signed agreement, with bargaining sessions being held a minimum of 24 hours per month for at least 6 hours per session or, in the alternative, on another schedule to which the Union agrees, and submit written bargaining reports every 30 days to a compliance officer; and (2) hold a meeting during work hours and have the notice read in English and Spanish by a high-ranking management official in the presence of a Board Agent and an Agent of the Union if the Region or Union so desires, or, at the Respondent’s option, by a Board agent in the presence of a high-ranking management official and, if the Union so desires, the presence of a Union agent. See NAP I, supra at slip op. at 7–9.

It is not apparent from the record whether the Respondent has complied with the Board’s order.

[4] Sawyer v. Noah’s Ark Processors, LLC, 2019 U.S. Dist. LEXIS 180011 (D. Neb. 2019).

[5] The judge mistakenly cited to Atlas Guard Service, 237 NLRB 1067 (1978), as holding that an employer violates the National Labor Relations Act when it “would only reach agreement on its own terms.” Although the Board has long held that a “party who enters into bargaining negotiations with a ‘take-it-or-leave-it’ attitude violates its duty to bargain,” General Electric Co., 150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970), the case cited by the judge does not so hold or otherwise address the issue.

[6] See, e.g., Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991) (applying totality of the circumstances test to bad-faith bargaining allegation).

[7] The judge erroneously found that the Respondent’s pursuit of a wage proposal that gave it the unilateral right to increase pay without regard to definable objective procedures and criteria is unlawful in and of itself. However, the cases cited by the judge merely hold that it is the unilateral implementation of such a discretionary wage proposal, even after reaching a valid overall impasse, that is unlawful, not the proposal itself. See, e.g., McClatchy Newspapers, 321 NLRB 1386, 1390‒1391 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997). While the wage proposal is not, in and of itself, per se unlawful, “[a]n inference of bad-faith bargaining is appropriate when the employer’s proposals, taken as a whole, would leave the union and employees it represents with substantially fewer rights and less protection than provided by law without a contract.” Regency Service Carts, Inc., 345 NLRB 671, 675 (2005). In this case, as the judge found, the Respondent’s discretionary wage proposal, advanced in conjunction with the elimination of arbitration, the continuation of the no-strike clause, and insistence on a broad waiver and management rights, was part of such an unlawful bargaining effort. In any event, we also agree with the judge that even without consideration of the wage proposal, the Respondent’s bad-faith bargaining is amply demonstrated on this record.

[8] In so finding, we reject the Respondent’s single-issue impasse argument, as it is precluded by the bad faith finding.

[9] We further note that the Respondent failed to raise particularized exceptions to any of the remedies recommended by the judge. Because the Respondent failed to raise a particularized exception to the recommended affirmative bargaining order, we find it unnecessary to provide a justification for that remedy. SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007) (citing Heritage Container, 334 NLRB 455 fn. 4 (2001), and Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (noting that, in the absence of particular exceptions, the Board may issue an affirmative bargaining order without specifically stating the basis for such)).

As to the notice reading, our colleague agrees that a reading is warranted but would not order that it be done by CEO Ziegelheim or by a Board agent in Ziegelheim’s presence. We find no merit in his objections, as we explain below in Sec. B.2.

As to bargaining expenses, we agree with the judge that the Respondent’s “‘unusually aggravated misconduct’” has “‘infected the core of [the] bargaining process to such an extent that [its] effects cannot be eliminated by the application of traditional remedies[.]” Bemis Co., 370 NLRB No. 7, slip op. at 4 (2020) (quoting Frontier Hotel & Casino, 318 NLRB 857 (1995), enfd. in relevant part sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997)). Here, as in Bemis Co., “an order requiring the respondent to reimburse the charging party for negotiation expenses is warranted both to make the charging party whole for the resources that were wasted because of the unlawful conduct, and to restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.… [T]his approach reflects the direct causal relationship between the respondent’s actions in bargaining and the charging party’s losses.” Bemis Co., supra (citing Frontier Hotel, supra at 859). In reimbursing the Union, the Respondent shall include reimbursement for any lost wages the Union paid to employee bargaining committee members for bargaining conducted during working hours. See Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118, slip op. at 2 (2022), and cases cited therein. Further, to the extent any employee bargaining committee members lost earnings because of bargaining during working hours and were not reimbursed by the Union, the Respondent shall make the employees whole for those losses. See id. at slip op. at 2–3, and cases cited therein. We order these remedies because the Union and any of its employee bargaining committee members expended significant time and expense bargaining with a respondent which bargained in bad faith. Consequently, the Union was denied the benefit of the good-faith bargaining required by the Act. It expended resources and funds, and employees may have sacrificed wages, to engage in bargaining that, because of the Respondent’s unfair labor practices, was denuded of its statutory purpose. Accordingly, we find reimbursement to the Union of bargaining expenses, including any lost wages the Union paid to employees for bargaining conducted during working hours and compensation to the Union’s employee bargaining committee members for wages lost during time spent bargaining instead of working, necessary to ensure that the Union and its representatives at the bargaining table are made whole for the Respondent’s unlawful bargaining. While we agree with the judge that an order requiring bargaining expenses is warranted, we modify the duration of this remedy and order the Respondent to reimburse the Union for bargaining expenses through January 24, 2020, the date the Respondent formally declared that the parties were at impasse, and on that basis, unlawfully implemented its proposal. The Respondent’s unlawful bargaining conduct continued through that date. We leave it to compliance to determine the bargaining expenses reimbursable to the Union.

[10] The bargaining-schedule and progress-report requirements clearly go hand-in-hand, and the Board typically orders them together. See, e.g., Serenethos Care Center LLC, 371 NLRB No. 54, slip op. at 2–3 (2022); NAP I, 370 NLRB No. 74, slip op. at 7, enfd. 31 F.4th 1097 (8th Cir. 2022); Bemis Co., 370 NLRB No. 7, slip op. at 4 (2020); Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 23 (2018), enfd. 2019 WL 12276113 (D.C. Cir. 2019); UPS Supply Chain Solutions, Inc., 366 NLRB No. 111, slip op. at 4 (2018); Professional Transportation Inc., 362 NLRB 534, 536 (2015); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011), enfd. mem. 540 F. App’x 484 (6th Cir. 2013). Where the Board has ordered only one of the two remedies, it has not explained why. See, e.g., J.G. Kern Enterprises, Inc., 371 NLRB No. 91, slip op. at 9 (2022); Thermico, Inc., 364 NLRB 1830, 1833 (2016); Camelot Terrace, 357 NLRB 1934, 1942 (2011), enfd. in rel. part. 824 F.3d 1085, 1095 (D.C. Cir. 2016). Ordering the two remedies together is the better practice, which the Board intends to follow going forward.

[11] Teamsters Local 122, 334 NLRB 1190, 1195 (2001), enfd. mem. No. 01-1513 (D.C. Cir. 2003) (consent judgment); WestPac Electric, 321 NLRB 1322, 1322 (1996); Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996).

[12] See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348 (1938); Ishikawa Gasket America, 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004) (Board may impose additional remedies “where required by the particular circumstances of a case”).

[13] See Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007); see also Tiidee Products, Inc., 196 NLRB 158, 159 (1972), enfd. sub nom. International Union of Elec., Radio & Mach. Workers, AFL–CIO v. NLRB, 502 F.2d 349 (D.C. Cir. 1974), cert. denied 417 U.S. 921 (1974).

[14] While the Respondent’s actions easily satisfy the standard of misconduct that is so “egregious or widespread” as to demonstrate a “general disregard for the employees’ fundamental statutory rights,” Hickmott, above at 1357, we do not mean to suggest that only misconduct as serious as the Respondent’s will meet the standard. In considering whether a broad order is warranted, the Board will remain guided by longstanding precedent applying Hickmott.

[15] Again, while we find that the Respondent’s repeated disregard for employee rights demonstrates its clear “proclivity to violate the Act,” Hickmott, above at 1357, we do not mean to imply that a broad order is only available in cases involving the same degree of habitual recidivism at issue in this case.

[16] Thus, contrary to our colleague’s assertion, we have not made a broad order the “predicate” for any of these remedies.

[17] Our colleague objects to this portion of our decision as “serv[ing] no real purpose.” We disagree. There is value both in promoting consistency and in providing parties with notice of the remedies the Board will consider in future broad order cases. This notice gives parties multiple opportunities to advocate for (or against) certain remedies they know the Board will consider once the case is before them.

[18] Nothing in this decision should preclude the General Counsel from seeking, or the judge or Board from ordering, other remedies in addition to those described here based on the facts in a particular case.

[19] Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (citing Federated Logistics & Operations, 340 NLRB 255, 258 (2003)), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008).

[20] See generally Sunbelt Rentals, Inc., 370 NLRB No. 102, slip op. at 6 (2021) (finding a broad order appropriate based on the egregiousness of the respondent’s unfair labor practices and, “for the same reason,” ordering notice reading). See also ADT, LLC, 371 NLRB No. 67 (2022) (imposing broad order and notice reading on recidivist respondent that committed multiple serious unfair labor practices); Apex Linen Service, Inc., 370 NLRB No. 75, slip op. at 3, 48 (2021) (broad order and notice reading based in part on respondent’s recidivism); Stern Produce Co., Inc., 368 NLRB No. 31, slip op. at 5 (2019).

[21] E.g., Ozburn-Hessey Logistics, 366 NLRB No. 177, slip op. at 13–14 (2018); J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969) (“[Notice reading] is an effective but moderate way to let in a warming wind of information and, more important, reassurance”); Federated Logistics and Operations v. NLRB, 400 F.3d 920, 930 (D.C. Cir. 2005) (“[Notice reading ensures] that employees will fully perceive that [the employer] and its managers are bound by the requirements of the [Act]”).

[22] Additionally, Member Prouty believes that notice reading, and the concomitant presence of a Board agent, provides the best opportunity for employees to gain a better understanding of their rights in light of the unfair labor practices that have been found by asking clarification questions. As such, in broad order situations, where the respondent has shown itself to have a proclivity to violate the Act and/or has engaged in egregious or widespread misconduct, Member Prouty would have Board agents who are present at notice readings make themselves available, and ideally announce prior to the reading that they will be available, to answer employees’ questions after the reading. Member Prouty would also require the respondent to allow employees to have their questions answered after the reading, even if those employees are on the clock. Member Prouty finds that providing employees with the opportunity to seek a better understanding of the violations, remedies, and how it impacts their work lives from a neutral party—the Board agent, as outlined above—effectuates the policies of the Act.

[23] Ozburn-Hessey, above, slip op. at 13.

[24] Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 3 (2022); AdvancePierre Foods, 366 NLRB No. 133, slip op. at 5 (2018); Ingredion, Inc. d/b/a Penford Products co., 366 NLRB No. 74, slip op. at 1 fn. 2 (2018); Domsey Trading Corp., 310 NLRB 777, 779–780 (1993), enfd.16 F.3d 517 (2d Cir. 1994).

[25] The Board in some notice-reading cases has required the respondent to give each supervisor a copy of the notice and any explanation of rights at the reading. See Ozburn-Hessey, above at slip op. at 14; Pacific Beach, above at 716. While requiring distribution to employees is an expansion of that remedy, we find it is warranted not only to acknowledge the chill that employees face in broad order situations, but also to provide them with the reassurance and information they need in the most safe and comprehensible manner possible.

[26] This remedy is particularly appropriate where the allegations that support the broad order include surveillance or threat-based violations. Such unfair labor practices reasonably leave employees hesitant to view a posted notice where the respondent may monitor employees viewing the notice.

[27] Member Prouty would make the distribution to employees of copies of the notice at meetings where it is to be read a requirement in all instances where the Board orders a notice-reading remedy.

[28] Amerinox, above, slip op. at 4; Pacific Beach, above, at 714–715.

[29] Ozburn-Hessey, above at slip op. at 14 (requiring supervisor attendance at notice reading and observing that “the persistent repetition of the same unfair labor practices by different supervisors and managers shows that the Respondent has not sufficiently trained its managers and supervisors in their duty to abide by the Act’s requirements.”)

[30] Ozburn-Hessey, above at slip op. at 14; Pacific Beach, above at 716.

[31] E.g., Fruin-Colnon Corp., 227 NLRB 59 (1976) (ordering the union respondent’s named agent to personally sign the notice), enfd. 571 F.2d 1017 (8th Cir. 1978); S.E. Nichols, Inc., 284 NLRB 556 (1980) (ordering the notice to be signed by the employer respondent’s president, district supervisor, and the highest regional manager of the store in which the notice is posted), enfd. 862 F.2d, 952 (2d Cir. 1988); Pacific Beach, above at 716 fn. 27 (ordering the employer respondent’s president to sign the notice); Three Sisters Sportswear Co., 312 NLRB 853, 853 (1993) (affirming the judge’s recommended remedy ordering the respondent’s chief executive, who was responsible for and directly implicated in most of the violations found, personally sign the notices), enfd. 1995 U.S. App. LEXIS 12208 (D.C. Cir. Apr. 28, 1995); Fieldcrest Cannon, 318 NLRB 470, 473 (1994), enfd. in relevant part 97 F.3d 65 (4th Cir. 1996) (ordering that notice be personally signed by vice president of human resources).

[32] This directive, which does not require the signing to occur in employees’ presence, is consistent with the Board’s practice of having the notice signed by an authorized representative. It is reasonable for the Board to direct the individual involved (and considered by employees to have been involved) with the unfair labor practices, to attest to the Respondent’s commitment to righting its wrongs.

[33] Compare Avondale Industries, Inc., 329 NLRB 1064, 1068 (1999) (declining to order that the respondent’s president or vice president personally sign the notice where they did not personally commit any unfair labor practices, but noting that the Board “has imposed this personal requirement on an executive of a flagrant wrongdoer in circumstances where it is necessary to dispel the atmosphere of intimidation that the executive personally created”).

[34] Publication should be understood to include not only the print version of the publications, but also the corresponding electronic versions.

[35] See Electrical Workers Local 3 (Northern Telecom), 265 NLRB 213, 219 (1982), enfd. 730 F.2d 870, 880–881 (2d Cir. 1984) (citing cases); Haddon House Food Products, 242 NLRB 1057, 1060 (1979), enfd. in rel. part sub nom. Teamsters Local 115 v. NLRB, 640 F.2d 392 (D.C. Cir. 1981), cert. denied 454 U.S. 827 (1981), and cert. denied sub nom. Haddon House Food Products, Inc. v. NLRB, 454 U.S. 837 (1981).

[36] See Ozburn-Hessey, above slip op. at 13.

[37] We have previously ordered extended notice posting for as long as 3 years, but do not discount the possibility that a longer time may be appropriate. See Ozburn-Hessey, above slip op. at 13; Pacific Beach, above at 714. Similarly, we recognize that a shorter period may also be warranted and sufficient to remedy the violations found. E.g., UPMC, 366 NLRB No. 185, slip op. at 7–8 (2018) (ordering an extended posting period of 120 days).

[38] See, e.g., Pacific Beach, above at 717; Hilton Inn North, 279 NLRB 45 (1986), enfd. 817 F.2d 391 (6th Cir. 1987); Cherokee Marine Terminal, 287 NLRB 1080 (1988); 299 Lincoln Street, 292 NLRB 172, 175 (1988); El Mundo Corp., 301 NLRB 351 (1991). Contrary to our dissenting colleague, we do not read the Supreme Court’s decision in Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021), to suggest that the Board’s long-established visitation-clause remedy poses an issue under the Takings Clause. Id. at 2079. In addition, and importantly, the visitation remedy is not to be used to search for future independent violations and must be clearly defined to meet compliance goals of specific remedies.

[39] See also 299 Lincoln Street, above at 175 (narrow visitation clause warranted).

[40] Pacific Beach, above at 717 (ordering a three-year visitation period for the limited purpose of determining whether the respondents were in compliance with posting, distribution, and mailing requirements).

[41] Contrary to our dissenting colleague’s assertion, our discussion of the visitation remedy here does not mean that it is presumptively warranted in all broad order cases. Nor, as he claims, is it a blanket endorsement of the remedy. Rather, as with the other remedies we outline, visitation will be considered on a case-by-case basis and ordered where appropriate in light of the facts and violations in a given broad order case.

[42] This is particularly true when an extended compliance period may cover unforeseen changes in an employer’s management or a union’s leadership.

[43] The judge recommended ordering the Board’s standard remedies for the violations found in this case as well as additional remedies specifically compensating the Union for all bargaining expenses from November 11, 2019, through the date in the future when good-faith negotiations begin, and a reading of the notice to employees by CEO Fischel Ziegelheim, or at the Respondent’s option, by a Board agent in his presence. As noted above, the Respondent failed to raise particularized exceptions to the judge’s recommended remedies.

[44] For example, here we choose not to order publication because that remedy would serve no purpose not adequately addressed by the other methods of communication we order today. Nor do we order the presence of supervisors at the reading of the notice and explanation of rights, because the bad-faith bargaining violation in this case was not driven by supervisory misconduct. While we recognize—and are troubled by—the role that supervisors and managers played in the violations we found in the Respondent’s earlier cases before us, those violations are not directly a part of this case. To be clear, in listing these examples, we do not impose a requirement that subsequent broad order cases include explanations of why certain remedies are not being ordered. Nor does our explanation of why we choose not to order certain remedies mean that there is a presumption in favor of awarding other remedies in broad order cases. We are merely highlighting that remedies should fit the facts of the case and noting, as an example in this case, why we find that certain remedies are not necessary here.

[45] See, e.g., Amerinox Processing, 371 NLRB No. 105, slip op. at 6 (2022), enfd. 2023 U.S.App. LEXIS 8442, 2023 WL 2818503 (D.C. Cir. 2023); David Saxe Productions, LLC, 370 NLRB No. 103, slip op. at 6 (2021); Purple Communications, Inc., 370 NLRB No. 26, slip op. at 1 fn. 5, 57 & fn. 85 (2020); Pacific Beach, above at 714.

[46] Our colleague notes that the Board has rarely ordered an explanation of rights. It is true that this remedy may have been underutilized, but we find it well justified here. As we note, providing employees who have faced multiple rounds of violations with clear examples of unfair labor practices that are specifically relevant to the ones they experienced, which are unfair labor practices that go to the heart of the Act—collective bargaining, is another way in which the Board can ensure that employees are fully aware of their rights with an employer who failed to refrain from committing violations after being held accountable on at least one prior occasion.

Additionally, the underutilization of the explanation of rights remedy highlights an important aspect of our decision today: providing all interested parties with a reminder of the remedies that may be particularly appropriate in broad-order cases, with the goal of achieving greater consistency in the administration of the Act and the remediation of violations.

[47] See Salem Hospital Corp., 363 NLRB 515, 515 fn. 3 (2015) (“[W]e shall order that the Board’s notice be read aloud to the Respondent’s employees by the Respondent’s chief executive officer or, at the Respondent’s option, by a Board agent in that officer’s presence. We find that requiring the notice be read aloud is warranted by the serious and persistent nature of the Respondent’s unfair labor practices, especially in light of its repetition of the same type of misconduct previously found unlawful”); see also Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 3 (2022) (finding notice reading by a particular manager appropriate where the manager, to the knowledge of employees, was directly responsible for violations that justified the notice reading remedy), enfd. 2023 U.S.App. LEXIS 8442, 2023 WL 2818503 (D.C. Cir. 2023), and cases cited therein. The presence of a management official when a notice is read serves as a “minimal acknowledgment of the obligations that have been imposed by law” and provides employees with some “‘assurance that their organizational rights will be respected in the future.’” Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (quoting Federated Logistics & Operations, 340 NLRB 255, 258 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005)), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008).

While our colleague agrees that notice reading is appropriate here, he would not order the notice to be read by Ziegelheim, or by a Board agent in Ziegelheim’s presence. Our colleague cites two cases—Denton County Electric Coop., Inc. v. NLRB, 962 F.3d 161, 174–175 (5th Cir. 2020), and Sysco Grand Rapids, LLC v. NLRB, 825 Fed.Appx. 348, 350 (6th Cir. 2020)—which he asserts rejected notice reading by a named individual, even where the Board-agent option is provided. Both cases are inapposite, as neither involved a recidivist employer, and Denton did not involve a broad cease-and-desist order. In Denton County, the court rejected notice reading where the employer, contrary to the Respondent herein, was not a repeat violator and the employer’s conduct did not create a “chill atmosphere of fear.” Denton County Electric Coop, supra at 174. In Sysco Grand Rapids, the court rejected the notice reading remedy because, among other things, the employer was not “a recidivist subject to ‘broader and more stringent’ Board remedies.” 825 Fed. Appx. at 359.

[48] Member Prouty would also allow employees to seek clarification through a question-and-answer session with the Board agent present at the notice reading, as discussed in fn. 20.

[49] See generally Three Sisters Sportswear Co. 312 NLRB at 880 (citing United Dairy Farmers’ Coop, 242 NLRB 1026, 1029 (1979), enfd. in part, remanded in part on other grounds 623 F.2d 1054 (3d Cir. 1980)), enfd. 1995 U.S. App. LEXIS 12208 (D.C. Cir. Apr. 28, 1995), and ordering the employer’s chief executive, who was responsible for and directly implicated in most of the violations found, to personally sign the notices).

We disagree with our colleague’s assertion that this directive raises a First Amendment compelled speech issue. Indeed, the Board has ordered in multiple cases that the notice be personally signed by a named individual (see fn. 31, supra), and our colleague cites no decision in which a court has found it to constitute compelled speech. We find this remedy to be consistent with the Board’s longstanding practice of having the notice signed by an authorized representative of the respondent. It is reasonable for the Board to direct the individual involved (or considered by employees to have been involved) with the unfair labor practices—here, the Respondent’s chief agent—to attest to the Respondent’s commitment to righting its wrongs. Furthermore, because Ziegelheim need not sign the notice in the presence of employees, the signature requirement is far from the type of public “confession of sins” that has troubled some courts. The notice simply summarizes the violations the Board has found and the action the Respondent must take—by order of the Board—to remedy them. There is no First Amendment concern in requiring the Respondent’s chief agent to commit to honoring the Respondent’s legal obligations.

[50] See, e.g., Amerinox Processing, above, at slip op. at 4; Veritas Health Services, Inc., 363 NLRB 963, 963 (2016) (finding a notice-mailing remedy was appropriate to effectuate the policies of the Act because “former employees lack[ed] access to respondents’ facility and will not see the posted notice”), enfd. in rel. part 895 F.3d 69 (D.C. Cir. 2018); Pacific Beach, above (ordering a notice-mailing remedy where the employer’s violations were “unquestionably deliberate, targeted, and egregious” and the notice would reach individuals who no longer had access to the employer’s facility but who were affected by the violations).

[51] “The Board provides for the mailing of individual notices when posting will not adequately inform the employees of the violations that have occurred and their rights under the Act.” Bill’s Electric, 350 NLRB 292, 297 (2007).

[52] Our colleague claims that the Board “does not order notice mailing outright unless the respondent has already gone out of business or closed [the facility where the unfair labor practices were committed], or other circumstances would make notice posting futile,” and notes that the facility involved herein “remains in business… and its employees regularly report to that facility.” He states that we have “no valid basis for linking notice mailing to broad orders.” We disagree. First, we note that notice mailing is not limited to situations where the respondent has gone out of business. See Newman Livestock-11, Inc., 361 NLRB 343, 344 (2014) (citing 3E Co., 313 NLRB 12, 12 fn. 2 (1993), enfd. 26 F.3d 1 (1st Cir. 1994), and ordering notice-mailing “regardless of whether the [r]espondent remains in business”). Contrary to our colleague’s assertion, “[n]otice mailing is a well-established part of the Board’s remedial repertoire when traditional posting is insufficient to dissipate the effects of the unfair labor practices.” Pacific Beach Hotel, 361 NLRB at 714. See also Amerinox Processing, above, at slip op. at 4 fn. 10 (citing cases). Second, we find that circumstances in which a broad order is appropriate often, as here, make notice posting on its own inadequate and make the addition of notice mailing appropriate. As we have noted, broad orders involve repeat offenders or those who have engaged in egregious or widespread misconduct, including, but not limited to, surveillance, threats, and other coercive activity towards employees who exercise their Section 7 rights. Any of those circumstances create a workplace where employees, frustrated by their working conditions, reasonably would be more likely to leave. Accordingly, to fully remedy violations herein, we find it appropriate to advise former employees of the unlawful conduct they may have experienced during their time with the Respondent and how that misconduct is being addressed. Former employees, whose last experience with an employer was an unremedied violation, should know, as they navigate other workplaces, that Section 7 rights are important and will be protected. Additionally, because broad order cases are those where the respondent has demonstrated its proclivity to violate the Act or has engaged in such egregious or widespread misconduct so as to demonstrate a general disregard for employees’ statutory rights, the resultant chill to employees’ protected activity can be better dispelled by a notice mailing that allows them to read and understand the notice in private without fear of observation, rather than reading a posted notice in the workplace under their employer’s scrutiny. In this regard, we reject the dissent’s challenge to the common-sense principle that employees may be hesitant to be seen reading the posted notice. “An employee who must scan the Board’s notice hurriedly while at work, under the scrutiny of others, will not be as able to absorb its meaning and hence to understand his legal rights as one who reads it at home in a more leisurely fashion.” J.P. Stevens. Co. v. NLRB, 380 F.2d 292 (2d Cir. 1967), cert. denied 389 U.S. 1005 (1967). Of course, the concern is particularly heightened in a broad-order case where, as here, the employee will be reading the posted notice in the workplace of a respondent that has been found to have “demonstrated a general disregard for the employees’ fundamental statutory rights.” Hickmott, supra at 357. That the posting of a Board remedial notice is the result of unlawful conduct violating employees’ statutory rights, fundamentally distinguishes it from our colleague’s comparison of it to “numerous other notices that are routinely posted in workplaces,” such as “[EEOC] notices or state wage and hour notices.”

[53] By setting out his “back-of-the envelope” calculations, our colleague appears to take issue with the potential cost of the notice mailing remedy. But the fact that this remedy will cause the Respondent to incur postal charges is not a reason to refrain from ordering it. As we have noted above, mailing the notice, a remedy the Board has ordered for decades in various situations, will help to ensure that all employees (current and former) are able to receive and review the notices away from their workplace (in a setting free from observation).

[54] We disagree with our colleague that photographic evidence of a notice posting would be an adequate alternative. A respondent willing to flout Board and court orders could easily circumvent such a requirement by posting the notice long enough to snap a photograph and then removing it.

[55] See Cherokee Marine Terminal, above at 1081–1082; Pacific Beach, above, at 717.

[56] If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

[57] If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted and read within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted and read within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].”

1 Based on the totality of the circumstances, I join my colleagues in finding that the Respondent bargained in bad faith from November 11, 2019, until January 13, 2020. See, e.g., Overnite Transportation Co., 296 NLRB 669, 671 (1989) (applying totality-of-circumstances test to bad-faith bargaining allegation), enfd. 938 F.2d 815 (7th Cir. 1991). I also agree that the judge erred in finding that the Respondent’s pursuit of a wage proposal giving it the unilateral right to increase pay without regard to definable objective procedures and criteria was unlawful in and of itself. See McClatchy Newspapers, 321 NLRB 1386, 1391 (1996) (rejecting Board’s prior finding that the employer’s bargaining proposal seeking to retain discretion over wage increases was a violation, finding that the proposal itself was “not inimical to the policies of the Act”), enfd. 131 F.3d 1026 (D.C. Cir. 1997).

2 A broad cease-and-desist order is warranted when a respondent is shown to “have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees’ fundamental statutory rights.” Hickmott Foods, 242 NLRB 1357, 1357 (1979). I agree that this standard is satisfied here.

3 See, e.g., Teamsters Local 122, 334 NLRB 1190, 1195 (2001) (ordering the respondent to reimburse negotiation expenses, where no party excepted to the judge’s failure to include such a remedy in the recommended order); WestPac Electric, 321 NLRB 1322, 1322 (1996) (observing that “the Board has broad discretion in determining the appropriate remedies to dissipate the effects of unlawful conduct” and awarding remedy not recommended by the judge or sought by any party); Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996) (noting that “the Board has broad discretionary authority under Sec. 10(c) to fashion appropriate remedies that will best effectuate the policies of the Act” and that “remedial matters . . . may be addressed by the Board in the absence of exceptions”) (internal quotation marks omitted). Accordingly, apart from the recommended affirmative bargaining order, the majority’s repeated observation that the Respondent did not except to the judge’s recommended remedies is entirely irrelevant.

4 See James M. Casida, 152 NLRB 526 (1965); Broward County Port Authority, 144 NLRB 1539 (1963).

5 By statute, the General Counsel has “final authority” not only “in respect of the investigation of charges and issuance of complaints,” but also “in respect of the prosecution of such complaints before the Board.” 29 U.S.C. § 153(d). The choice of remedies to recommend for violations alleged is an aspect of, and within, the General Counsel’s exclusive prosecutorial authority.

6 The Board has expressed a willingness to consider ordering a particular remedy in a future appropriate case. See HTH Corp. d/b/a Pacific Beach Hotel, 361 NLRB 709, 719 (2014) (signaling openness to considering whether the Board may and, if so, should order a front-pay remedy in appropriate cases), enfd. in part HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016). Individual Board members also sometimes indicate an interest in reconsidering extant precedent in a future case should occasion arise to do so. Neither situation compares with what my colleagues do here.

7 My colleagues hinge their consideration of extraordinary remedies to issuance of a broad cease-and-desist order, and they signal their intention to continue doing so in any case in which they deem a broad order warranted. Historically, the Board has been sparing in its use of broad orders. Recently, broad orders have become more frequent. The Board has issued four such orders just since the middle of last year. See Grill Concepts Services, Inc. d/b/a The Daily Grill, 372 NLRB No. 30, slip op. at 5 (2022); North Texas Investment Group d/b/a Whitehawk Worldwide, 371 NLRB No. 122, slip op. at 3 (2022); Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118, slip op. at 3 (2022); Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 3 (2022), enfd. 2023 U.S.App. LEXIS 8442, 2023 WL 2818503 (D.C. Cir. 2023). Although I agreed that a broad order was warranted in some of these cases, the trend is noteworthy. With today’s decision, it seems likely that extraordinary remedies are about to become far less extraordinary. It bears watching whether my colleagues’ deployment of such remedies becomes punitive and thus exceeds the powers granted them under Sec. 10(c). See, e.g., Republic Steel Corp. v. NLRB, 311 U.S. 7, 11–12 (1940) (holding that the Board’s “power to command affirmative action is remedial, not punitive”).

8 My colleagues fail to cite a single case where a court of appeals has faulted the Board for failing to order any particular extraordinary remedy, nor am I aware of any.

9 I disagree with the majority that employees should be made whole for any direct or foreseeable pecuniary harms incurred as a result of the Respondent’s unlawful implementation of its final offer. Consistent with my partial dissent in Thryv, Inc., 372 NLRB No. 22 (2022), I would require the Respondent to compensate employees for other pecuniary harms only insofar as the losses were directly caused by the unlawful implementation of the final offer, or indirectly caused by that act where the causal link between the loss and the implementation of the final offer is sufficiently clear.

10 The judge recommended that the Respondent be required to reimburse the Union for negotiating expenses incurred from the date it began to bargain in bad faith “until such time as [the Respondent] begins bargaining in good faith.” My colleagues amend the judge’s decision to terminate the period during which the Respondent must compensate the Union for its bargaining expenses on January 24, 2020, the date the Respondent declared impasse. The record indicates that no bargaining took place after January 13. But even if ending the bargaining-expenses-reimbursement period on January 24 is error, it is harmless error: if no bargaining took place between January 13 and January 24, there are no expenses to reimburse during that interval.

More generally, however, I agree with my colleagues’ decision to cabin the judge’s recommended bargaining-expenses remedy. This is not the first time this wording has been used. See, e.g., Richfield Hospitality, Inc., 369 NLRB No. 111, slip op. at 5 (2020). And it is problematic. On its face, the judge’s wording would have required the Respondent to compensate the Union for additional bargaining expenses incurred after January 24th (or 13th), should the Respondent once again engage in bad-faith bargaining, until such time as the Respondent begins to bargain in good faith. The determination of whether the Respondent bargained in bad faith once again apparently would be left to compliance. That is clearly improper; whether or not a party has engaged in bad-faith bargaining is a question of law, and the Board’s compliance officers do not have the authority to decide issues of law. Unfair labor practice issues are litigated in merits hearings, not in compliance proceedings. See, e.g., Neoprene Craftsmen Union Local 788 v. NLRB, 187 Fed. Appx. 477, 480 (6th Cir. 2006) (“[A]ll specific unfair labor practices claims for which remedial relief is sought must be litigated on the merits during the initial Board proceeding.”).

11 Here, as in Nexstar, there is no evidence that the Union had decided to reimburse employee members of the bargaining committee prior to the commencement of bargaining. Therefore, I need not pass on whether this remedy would be appropriate under those circumstances.

12 I acknowledge that the Court of Appeals for the District of Columbia Circuit—after reviewing the long, colorful, and not entirely coherent line of circuit precedent addressing the Board’s extraordinary notice-reading remedy—upheld an order requiring that a notice be read by a named individual, where the Board provided the employer the option of “punting the task to a Board employee.” HTH Corp. v. NLRB, 823 F.3d 668, 675–678 (D.C. Cir. 2016). More recently, however, the Courts of Appeals for the Fifth and Sixth Circuits have disagreed with their sister circuit and rejected such a remedy even where the Board-agent option is provided. Denton County Electric Coop., Inc. v. NLRB, 962 F.3d 161, 174–175 (5th Cir. 2020) (“The option to have the notice read by a board member [sic] does not assuage our concerns.”); Sysco Grand Rapids, LLC v. NLRB, 825 Fed. Appx. 348, 350 (6th Cir. 2020) (reasoning that the option of having a Board agent read the notice while “named individuals . . . stand at attention as human demonstratives in the employer’s confession of sins” does not save the order from unenforceability). Although I have not previously embraced the position adopted by the Fifth and Sixth Circuits, I may consider doing so in a future appropriate case.

13 Noah’s Ark Processors, LLC d/b/a WR Reserve, 370 NLRB No. 74 (2021) (NAP I), slip op. at 8–9, enfd. 31 F.4th 1097 (8th Cir. 2022).

14 The first mention of a potential notice-distribution remedy appears to be Member Prouty’s personal footnote—i.e., expressing his views, not the Board’s—in Johnston Fire Services, LLC, 371 NLRB No. 56, slip op. at 7 fn. 24 (2022).

15 Although I disagree, below, with the majority’s requirement that the notice be mailed to the employees, the fact that my colleagues so require makes their notice-distribution remedy clearly superfluous.

16 Although courts of appeals have enforced Board decisions in which notice-signing by a named individual was ordered, in none of them was the notice-signing issue placed before the court for review. See Fieldcrest Cannon v. NLRB, 97 F.3d 65 (4th Cir. 1996); Three Sisters Sportswear Co. v. NLRB, 1995 U.S. App. LEXIS 12208 (D.C. Cir. Apr. 28, 1995); NLRB v. S.E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988); Fruin-Colnon Corp. v. NLRB, 571 F.2d 1017 (8th Cir. 1978).

17 My colleagues reply that Ziegelheim will not have to sign the notice in the presence of employees. This is beside the point. Ziegelheim will be virtually present in and through his signature.

18 As discussed below, I disagree that an explanation-of-rights posting (let alone mailing) is warranted here. But even if I agreed that such a remedy is called for in this case, I would not order Ziegelheim to sign it (as the majority does), on First Amendment grounds. Even assuming that my colleagues have valid policy reasons for adopting this remedy, those policy reasons do not, and cannot, outweigh individuals’ First Amendment rights. Furthermore, to the extent my colleagues’ purpose in ordering Ziegelheim to sign the posting is to embarrass, burden, or otherwise punish him, their “signing” remedies are impermissible. See Republic Steel Corp. v. NLRB, 311 U.S. at 11–12.

19 Indian Hills Care Center, 321 NLRB at 144 (“[W]e shall modify our standard notice-posting provision to state that if the respondent’s facility has closed, the respondent shall mail the notice to employees.”).

20 Id. (“If the record indicates that the respondent’s facility has closed, the Board routinely provides for mailing of the notice to employees.”).

21 See, e.g., Bud Antle, Inc., 359 NLRB 1257, 1257 (2013) (ordering notice mailing where “the work force move[d] from place to place harvesting various crops throughout the year,” and the respondent “[did] not maintain any facilities to which all unit employees report”), affirmed by and incorporated by reference in 361 NLRB 873 (2014); Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 5 (2020) (“We have stressed that, like other extraordinary relief, notice mailing not conditioned on a plant closing is rarely granted.”) (internal quotation marks and emphasis omitted), enfd. 5 F.4th 759 (7th Cir. 2021); Consolidated Edison Company of New York, Inc., 323 NLRB 910, 912 (1997) (finding that notice mailing was unnecessary where there was no evidence that traditional notice posting was insufficient to inform employees of their rights and of the employer’s unfair labor practices). Newman Livestock-11, Inc., 361 NLRB 343 (2014), cited by my colleagues, does not support ordering notice mailing here. Although the Board did not expressly rely on this fact, the respondent in Newman Livestock-11 had gone out of business. See id. at 347 (“The record shows that the [r]espondent was no longer in business after May 2012.”).

22 Delta Sandblasting Co., 367 NLRB No. 17, slip op. at 1 fn. 3 (2018) (“[I]t is always the case that employees who worked for an employer at the time it committed an unfair labor practice may no longer be working for that employer when the remedial notice is posted, and the Board rarely orders notice mailing.”) (emphasis in original), enfd. 969 F.3d 957 (9th Cir. 2020).

23 Making matters even worse, the majority requires the Respondent to “maintain and make available for inspection proofs of mailings and receipts.” In other words, they order the Respondent to send the notices by certified mail, return receipt requested. I take judicial notice of the fact that, in 2023, a letter sent by certified mail costs $4.15, and the green-card return receipt costs an additional $3.35. This is in addition to the regular cost of first-class mail, which is $.63 for the first ounce and $.24 for each additional ounce. At minimum, then, the majority’s notice-mailing order will cost the Respondent $8.13 per bargaining-unit employee—and considering that it must mail the remedial notice and the explanation of rights in both English and Spanish, it will almost certainly cost more than that. As a rough back-of-envelope calculation, for between 250 and 300 employees at $8.50 a letter, compliance with the mailing remedy will cost the Respondent anywhere from $2,125 to $2,550.

24 See, e.g., In re Carbola Chem. Co., 3 NLRB 947, 949 (1937).

25 See Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 6.

26 See David Saxe Productions, 370 NLRB No. 103, slip op. at 6 (2021) (finding employer committed egregious and pervasive violations of Sec. 8(a)(3) and 8(a)(1)); Purple Communications, Inc. and Its Successor and Joint Employer CSDVRS, LLC, 370 NLRB No. 26 (2020) (finding employer committed extensive violations of Sec. 8(a)(5), 8(a)(3), and 8(a)(1)); HTH Corp. d/b/a Pacific Beach Hotel, 361 NLRB at 713–714 (finding employer committed severe, pervasive, and repeated violations of Sec. 8(a)(5), 8(a)(3), and 8(a)(1) over the course of more than a decade, multiple injunctions under Sec. 10(j), and a district court order holding the employer in civil contempt).

27 Enfd. mem. in relevant part 803 Fed. Appx. 876 (6th Cir. 2020).

28 Petitions for review dismissed upon joint motion of the parties No. 18-1237, 2021 WL 1439791 (D.C. Cir. 2021).

29 I further note that, more than 11 years ago, the Board promulgated a rule requiring employers to post an explanation-of-rights notice, but the courts rejected it. See Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013) (holding that the Board lacked authority under the Act to issue the rule); National Assn. of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) (vacating the rule on the basis that its means of enforcement were invalid). It could be argued that, to the extent that my colleagues aim to make posting an explanation-of-rights notice for a full year a standard remedy, the majority is improperly attempting to accomplish through remedial means what the Board tried and failed to accomplish through rulemaking.

30 Of course, if a respondent does not comply with a Board order, the Board has methods for addressing such non-compliance, up to and including civil contempt proceedings.

31 According to my colleagues, the Respondent’s misconduct “has undermined any reasonable expectation that we can rely on it to accurately and sufficiently self-report its compliance.” Yet in Ozburn-Hessey Logistics, the Board, including then-Member McFerran, ordered the standard sworn self-report of compliance, see 366 NLRB No. 177, slip op. at 15, and did not order visitation by a Board agent, even though the respondent had been found to have violated the Act in five previous decisions, each of which had been enforced by a court of appeals. See id., slip op. at 1 fn. 3.

Furthermore, it is puzzling that the majority orders the Respondent to file a sworn report of compliance, despite its declaration that the Respondent cannot be relied upon to accurately report its compliance with the Board’s order.

32 I note that my colleagues have sought public input on several cases, including another case that addressed a change in the scope of Board remedies. See, e.g., Thryv, Inc., 372 NLRB No. 22, slip. op at 6 fn. 8 (2022) (listing the numerous briefs received in response to the Board’s notice and invitation to file briefs addressing whether the Board should order compensatory damages as a remedy). It is not clear why my colleagues chose not to seek public comment in this case as well.

33 Not only is the intrusion unnecessary, but the recent Supreme Court decision in Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021), suggests that the intrusion may violate the Takings Clause of the Constitution as well. Id. at 2077 (indicating that the Court’s finding that the California Agricultural Labor Board’s access regulations violate the Takings Clause is not inconsistent with the Court’s holding in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), because takings issues were not litigated in the latter case).

34 The majority rejects this alternative, speculating that the Respondent might post the notice, photograph it, and take it down again. Of course, this possibility would apply whenever the Board orders a notice-posting remedy, yet my colleagues fail to cite any relevant precedent in which the Board has failed to trust Respondents’ compliance based on this concern. My colleagues’ position is especially curious given that the Respondent must file a sworn attestation of the steps that it has taken to comply. Based on this remedy, the Region’s compliance officer, a year from now, could require the Respondent to file a sworn statement that the notice was posted and remained posted throughout the 1-year posting period. Does the majority really believe that the Respondent would post the notice, photograph it, take it down, and then commit a felony under the False Statements Act, 18 U.S.C. § 1001, by lying to the federal government under oath, particularly when such a lie could be exposed by any and every employee willing to inform on the Respondent to the Region?

To be clear, I would not order a photographic-evidence remedy here, or in any case where the standard self-report under oath suffices. To go beyond the standard remedy, I would at the very least require the General Counsel to demonstrate a likelihood of noncompliance under Cherokee Marine Terminal.

35 The majority’s opinion may raise yet another, and graver, concern. Although my colleagues, in this case, order “narrowly tailored” visitation “for the limited purpose of determining whether the Respondent is in compliance with our posting and mailing requirement[s],” their general discussion suggests a potentially broader scope for this remedy. “Visitation,” they say, “permits the Board to inspect the records of a respondent, and to take statements from its officers and employees (and others) for the purpose of determining or securing compliance with our orders
. . . .” Statements taken by visiting Board agents for this purpose could include statements taken to determine whether a respondent is complying with an order to cease and desist from violating the Act. This would constitute investigation of potential violations absent an unfair labor practice charge, which would exceed the Board’s statutory powers. See Nash v. Florida Industrial Commission, 389 U.S. 235, 235 (1967) (“Section 10 of the National Labor Relations Act authorizes the National Labor Relations Board to initiate unfair labor practice proceedings whenever some person charges that another person has committed such practices. The Board cannot start a proceeding without such a charge being filed with it.”); National Assn. of Manufacturers v. NLRB, 717 F.3d 947, 951 (D.C. Cir. 2013) (stating that the Board cannot enforce the Act unless “outside actors” file an unfair labor practice charge, and “‘neither the Board nor its agents are authorized to institute charges sua sponte’”) (quoting Robert A. Gorman & Matthew W. Finkin, BASIC TEXT ON LABOR LAW, at 10 (2d ed. 2004)).

Labor Law (Spring 2024)

An introduction to U.S. private-sector labor law and policy

8 Employer Speech in Union Representation Campaigns; Remedies 8 Employer Speech in Union Representation Campaigns; Remedies

8.1 GC Memo 22-04, “The Right to Refrain from Captive Audience and Other Mandatory Meetings" 8.1 GC Memo 22-04, “The Right to Refrain from Captive Audience and Other Mandatory Meetings"

MEMORANDUM GC 22-04 April 7, 2022

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Jennifer A. Abruzzo, General Counsel

SUBJECT: The Right to Refrain from Captive Audience and other Mandatory Meetings

8.2 National Labor Relations Board v. Gissel Packing Co. 8.2 National Labor Relations Board v. Gissel Packing Co.

NATIONAL LABOR RELATIONS BOARD v. GISSEL PACKING CO., INC., et al.

8.3 Hoffman Plastic Compounds, Inc. v. National Labor Relations Board 8.3 Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL LABOR RELATIONS BOARD

8.4 Thryv, Inc., 372 NLRB No. 22 (2022) 8.4 Thryv, Inc., 372 NLRB No. 22 (2022)

Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269. Cases 20–CA–250250 and 20–CA–251105

December 13, 2022

DECISION AND ORDER

Background

I. Respondent’s Unfair Labor Practices

A. Information Requests

B. Unilateral Layoffs

II. Remedial Issues

A. The Board’s Statutory Authority

B. Implementation of the Remedy

III. Application of the Remedy to the Instant Case

Amended Remedy

ORDER

Cease and desist from

Take the following affirmative action necessary to effectuate the policies of the Act.

A. The Respondent Violated the Act by Laying Off Employees

B. The Respondent Is Required to Make Affected Employees Whole

Conclusion

8.5 Noah's Ark Processors, LLC, 372 NLRB No. 80 (2023) 8.5 Noah's Ark Processors, LLC, 372 NLRB No. 80 (2023)

Noah’s Ark Processors, LLC d/b/a WR Reserve and United Food and Commercial Workers Local Union No. 293. Case 14–CA–255658

April 20, 2023

DECISION AND ORDER

Background

Analysis

Amended Remedy

ORDER