372 NLRB No. 80 Noah's Ark Processors, LLC d/b/a WR Reserve

372 NLRB No. 80

NOTICE: This opinion is subject to formal revision before publication in the

bound volumes of NLRB decisions. Readers are requested to notify the Ex-

ecutive Secretary, National Labor Relations Board, Washington, D.C.

20570, of any typographical or other formal errors so that corrections can

be included in the bound volumes.

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

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

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 Rela-

tions Act. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).

Second, the judge inadvertently stated that the Union modified its posi-

tion on funeral leave on December 9, 2019; it is undisputed that the Un-

ion did so on November 26, 2019. Finally, the judge inadvertently in-

cluded 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 describ-

ing 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).

In addition to bargaining in bad faith, declaring impasse, and im-

posing a final offer without a valid impasse, the Respondent also: threat-

ened employees with discharge for engaging in protected concerted ac-

tivities; told employees they were terminated for engaging in protected

concerted activities; threatened to call the police because employees en-

gaged 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 au-

thorizations during the term of any collective-bargaining agreement; co-

ercively interrogated employees about whether they had received a sub-

poena from the National Labor Relations Board; coercively interrogated

employees about their union activities; coercively interrogated employ-

ees about their communications with agents of the National Labor Rela-

tions Board; told employees that they must meet with a company attorney

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 administra-

tive 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.

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).

As a result of a May 10, 2019 Section 10(j) injunction

related to the 2018 to 2019 round of negotiations, the par-

ties met for court-ordered bargaining on three occasions in

July and August 2019. With very little progress made dur-

ing 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 Re-

spondent in contempt and,

on November 1, 2019, im-

posed 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 No-

vember and December 2019 and once in January 2020.

before meeting with an agent of the National Labor Relations Board in-

vestigating unfair labor practices filed against the Respondent; dis-

charged employees for engaging in protected concerted activities; by-

passed 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 imple-

mented 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.

To remedy the bargaining violations, the NAP I Board ordered the

Respondent to, among other things: (1) on request, bargain with the Un-

ion in good faith and at reasonable times on the terms and conditions of

employment for unit employees and, if an understanding is reached, em-

body 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 compli-

ance officer; and (2) hold a meeting during work hours and have the no-

tice 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–

It is not apparent from the record whether the Respondent has com-

plied with the Board’s order.

Sawyer v. Noah’s Ark Processors, LLC, 2019 U.S. Dist. LEXIS

180011 (D. Neb. 2019).

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

During the November 11, 2019 session, in which the Re-

spondent 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 em-

ployee 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 de-

clared to be its last, best, and final offer. The proposal

included a final offer the Respondent had proposed in Jan-

uary 2019, to which the Union had objected, and language

allowing management to unilaterally increase pay rates

during the contract. The proposal also included the re-

moval of binding arbitration from the grievance provision;

additional cuts to various types of paid time off; the elim-

ination of multiple articles related to safety; and the crea-

tion 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 Janu-

ary 14, 2020, the Respondent advised the Union that it

would consider the parties to be at impasse if the final of-

fer was not accepted. The Union replied that it was willing

and able, and desired, to continue negotiations. Ulti-

mately, 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 there-

after, 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 un-

lawfully declaring impasse and unlawfully implementing

its last, best, and final offer.

The judge found that, looking at the totality of the cir-

cumstances, 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) unwillingness to wait

for the Union to make all of its proposals; and (6) the Re-

spondent’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

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 negoti-

ations 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

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 pos-

sible attendance, at which the notice will be read to em-

ployees 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 cor-

rectly 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 frus-

trate the possibility of arriving at any agreement. In deter-

mining 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.

In doing so, we emphasize that alt-

hough the Board does not evaluate whether particular pro-

posals are acceptable or unacceptable, the Board will ex-

amine 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), un-

willingness to consider most of the Union’s proposals, ad-

herence to most of its initial proposals without modifica-

tion, unwillingness to wait for the Union to even make all

of its proposals, and its discretionary wage proposal are,

(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.

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).

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 3

taken together, evidence of bad faith.

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 find-

ings that the Respondent unlawfully declared impasse and

implemented a last, best, and final offer in the absence of

a valid impasse.

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

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 bar-

gaining 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, ad-

vanced in conjunction with the elimination of arbitration, the continua-

tion of the no-strike clause, and insistence on a broad waiver and man-

agement 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.

In so finding, we reject the Respondent’s single-issue impasse ar-

gument, as it is precluded by the bad faith finding.

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 recom-

mended 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 affirma-

tive bargaining order without specifically stating the basis for such)).

As to the notice reading, our colleague agrees that a reading is war-

ranted 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 objec-

tions, as we explain below in Sec. B.2.

As to bargaining expenses, we agree with the judge that the Respond-

ent’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

made plain its open hostility toward its responsibilities un-

der 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 neces-

sary and appropriate to remedy the Respondent’s miscon-

duct 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 vi-

olations found in this case, the judge has recommended

and justified additional remedies, specifically compensat-

ing 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 employ-

ees 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.

We have also modified the judge’s recommended rem-

edy to include the same bargaining-schedule, progress-

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 re-

sources 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 em-

ployee bargaining committee members lost earnings because of bargain-

ing 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 ex-

pended 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 bar-

gaining that, because of the Respondent’s unfair labor practices, was de-

nuded 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, neces-

sary 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 Respond-

ent 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 reim-

bursable to the Union.

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

report, and bilingual requirements as our remedy in NAP

I. See Noah’s Ark Processors, LLC, above at slip op. at

7–8.

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 recom-

mended order to provide that the Respondent shall also

compensate the employees for any other direct or foresee-

able pecuniary harms incurred as a result of the Respond-

ent’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 dis-

cretion 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 addi-

tional forms of relief.

That statutory provision directs

us, upon finding a violation, to require “such affirmative

action including reinstatement of employees with or with-

out backpay, as will effectuate the policies of th[e] Act.”

We tailor the remedies to the violations, including their

nature, severity, and extent.

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.

Today, as further discussed below, we explain the po-

tential 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 mis-

conduct. 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

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

encourage compliance with the Act and offer better pro-

tection of employees’ Section 7 rights.

To begin, we modify the judge’s recommended order to

include a broad cease-and-desist provision, which, in ad-

dition to the cease-and-desist provisions directed at spe-

cific violations of the Act, prohibits the Respondent from

“in any other manner interfering with, restraining, or co-

ercing 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 re-

spondent is shown to have a proclivity to violate the Act

or has engaged in such egregious or widespread miscon-

duct as to demonstrate a general disregard for the employ-

ees’ 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’ fun-

damental statutory rights.” Id.

First, the record shows that the Respondent violated the

Section 10(j) injunction related to the 2018–2019 negoti-

ations, 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 con-

sider even minor changes or the Union’s proposals, ad-

hered largely to its initial positions, and implemented its

final offer without a lawful impasse. These violations se-

riously affected the entire unit by undermining their cho-

sen 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 will-

ing 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

together is the better practice, which the Board intends to follow going

forward.

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).

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”).

See Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in rele-

vant 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).

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 5

demonstrate a “general disregard for the employees’ fun-

damental statutory rights.” Id.

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 viola-

tions here, we note that, as detailed in NAP I, the Respond-

ent committed numerous serious violations in 2018 and

2019. These include bargaining in bad faith, declaring im-

passe, unlawfully imposing a final offer, threats to em-

ployees, coercion, failure to process union dues, interro-

gations (including about communications with the Board),

unilateral changes to terms and conditions of employment,

discharges for protected activity, and failure to pay em-

ployees 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.

As described above, where a respondent’s conduct

meets the standard for a broad order—i.e., where a pro-

clivity to violate the Act has been established or where

widespread or egregious misconduct demonstrates a gen-

eral disregard for employees’ Section 7 rights—the Board

must order commensurate remedies to “effectuate the pol-

icies of th[e] Act” (in the words of Section 10(c) of the

Act). Cases in which the broad order standard is met nec-

essarily involve circumstances that would lead employees

to reasonably believe that the respondent does not respect

their rights. In such circumstances, employees will rea-

sonably 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 as-

surances 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 appro-

priate 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

While the Respondent’s actions easily satisfy the standard of mis-

conduct 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.

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.

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.

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.

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 addi-

tion 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, espe-

cially when ordered together.

Explanation of Rights: In cases “involving egregious

and pervasive unfair labor practices,” we have at times or-

dered an explanation of rights that “ensures that employ-

ees are fully informed of their rights, mitigates the chilling

effect of past unlawful conduct, and may help prevent fur-

ther 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

Thus, contrary to our colleague’s assertion, we have not made a

broad order the “predicate” for any of these remedies.

Our colleague objects to this portion of our decision as “serv[ing]

no real purpose.” We disagree. There is value both in promoting con-

sistency and in providing parties with notice of the remedies the Board

will consider in future broad order cases. This notice gives parties mul-

tiple opportunities to advocate for (or against) certain remedies they

know the Board will consider once the case is before them.

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.

6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 infor-

mation because they involve respondents that have been

found to violate and disregard employees’ rights in numer-

ous, egregious, or repeated ways. Mitigating the chilling

effect of the unfair labor practices on employees and en-

suring that they understand their rights is a part of making

them whole after the widespread violations they have ex-

perienced. The explanation of rights does this in an acces-

sible manner.

Notice/Explanation of Rights reading: The Board has

ordered the notice-reading remedy in cases where the re-

spondent’s unlawful conduct has been “sufficiently seri-

ous and widespread” to ensure that the content of the no-

tice is disseminated to all employees.

The same consid-

erations are present in broad order cases.

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.

Reading the

notice (and any explanation of rights) aloud disseminates

that information through the work force in a clear and ef-

fective way. This awareness, in turn, means that respond-

ents will be less able to violate the Act unnoticed as a mat-

ter of course. By the nature of their violations, broad-or-

der 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

Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (citing Feder-

ated Logistics & Operations, 340 NLRB 255, 258 (2003)), enfd.

mem. 273 Fed. Appx. 32 (2d Cir. 2008).

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,” or-

dering 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).

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 Lo-

gistics 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]”).

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 ques-

tions. 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

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.

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 representa-

tive.

In cases where a particular high-ranking manager

or corporate official was directly responsible for viola-

tions 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 counter-

weight to the significant chill they have created by their

unlawful conduct.

If warranted, that provision should

also be considered in broad order cases for the same rea-

son.

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 expla-

nation of rights to employees at the meeting before the

reading.

Such distribution will facilitate employee com-

prehension as employees will be able to follow along as

the notice and explanation of rights are read aloud. Lastly,

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 an-

swer employees’ questions after the reading. Member Prouty would also

require the respondent to allow employees to have their questions an-

swered after the reading, even if those employees are on the clock. Mem-

ber 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.

Ozburn-Hessey, above, slip op. at 13.

Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 3 (2022);

AdvancePierre Foods, 366 NLRB No. 133, slip op. at 5 (2018); In-

gredion, 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).

The Board in some notice-reading cases has required the respond-

ent 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.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 7

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.

A copy of the notice and explana-

tion of rights distributed by the Board agent to all at-

tendees is a neutral method of providing them with the in-

formation they need to understand their rights and the of-

fending party’s obligations.

Notice/Explanation of Rights mailing: Similarly, mail-

ing 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 neces-

sary 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 multi-

ple types of violations, violations that pervade a work-

place, 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 explana-

tion 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.

Presence of supervisors/managers at the notice/Expla-

nation of Rights reading: In cases where supervisors have

been directly involved in the unfair labor practices that ne-

cessitate a broad order, the Board will consider also re-

quiring 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’ confi-

dence in their rights under the Act—and their

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.

Member Prouty would make the distribution to employees of cop-

ies of the notice at meetings where it is to be read a requirement in all

instances where the Board orders a notice-reading remedy.

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

Ozburn-Hessey, above at slip op. at 14 (requiring supervisor at-

tendance at notice reading and observing that “the persistent repetition

of the same unfair labor practices by different supervisors and managers

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 do-

ing so. Therefore, their attendance at the notice reading

not only “convey[s] a message to employees that their su-

pervisors are just as responsible as upper management for

adhering to the law, it also exposes the supervisors to in-

formation 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 di-

rectly 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 in-

fringing on those rights in other ways in the future.

After

the kinds of violations that prompt a broad order, this in-

formation 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 igno-

rance or non-involvement with infringements on employ-

ees’ 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 re-

spondent to retain sign-in sheets recording the presence of

each supervisor at the reading. The Board may also in-

clude a requirement that the respondent give each super-

visor a copy of the notice and any explanation of rights at

the reading, and that it maintain proof that this has been

done.

Notice signing: We have previously ordered a responsi-

ble representative of both union and employer respondents

to sign the notice to underscore their obligation to cease

their unlawful conduct and respect employees’ rights un-

der the Act.

In broad order cases, a notice signed by a

person who bears significant responsibility in the

shows that the Respondent has not sufficiently trained its managers and

supervisors in their duty to abide by the Act’s requirements.”)

Ozburn-Hessey, above at slip op. at 14; Pacific Beach, above at

716.

E.g., Fruin-Colnon Corp., 227 NLRB 59 (1976) (ordering the un-

ion 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) (or-

dering 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

8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 re-

storative component when systematic egregious or re-

peated violations reasonably leave employees with the im-

pression of a culture of hostility toward protected activ-

ity.

Moreover, we find this remedy particularly appro-

priate where the individual ordered to sign either commit-

ted the unfair labor practice found or is viewed by employ-

ees as the face of the conduct underlying the violations.

Publication: A publication remedy requires a respond-

ent to publish the notice and any explanation-of-rights

document in “local publications of broad circulation and

local appeal.”

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 consid-

eration in broad order situations where there may be many

employees affected by any number of unfair labor prac-

tices over a potentially lengthy period of time by an em-

ployer 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.

Extended posting of the notice and Explanation of

Rights: Although the Board’s standard notice posting pe-

riod is 60 days, we have ordered extended posting periods

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).

This directive, which does not require the signing to occur in em-

ployees’ 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 Re-

spondent’s commitment to righting its wrongs.

Compare Avondale Industries, Inc., 329 NLRB 1064, 1068 (1999)

(declining to order that the respondent’s president or vice president per-

sonally sign the notice where they did not personally commit any unfair

labor practices, but noting that the Board “has imposed this personal re-

quirement on an executive of a flagrant wrongdoer in circumstances

where it is necessary to dispel the atmosphere of intimidation that the

executive personally created”).

Publication should be understood to include not only the print ver-

sion of the publications, but also the corresponding electronic versions.

to better mitigate the chill of what the Fifth Circuit de-

scribed 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 vio-

lations, 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 employ-

ees who want to warn them of the risk of infringement on

their protected rights. Even employees who were not di-

rect targets will be likely to have experienced a chill in

their willingness to exercise rights from watching cowork-

ers 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 re-

spondent’s repeated violations or because of the wide-

spread or egregious nature of the conduct.

The length of

time for the extended posting will necessarily vary de-

pending on the facts of each case.

Visitation: Visitation permits the Board to inspect a re-

spondent’s bulletin board to ensure that the notice is

posted in accordance with our order. Visitation also per-

mits 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 compli-

ance with our orders, including, where appropriate, com-

pliance with the procedures we herein establish for notice

readings, including distribution of the materials to be read

and attendance by supervisors (where ordered).

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).

See Ozburn-Hessey, above slip op. at 13.

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).

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 Termi-

nal, 287 NLRB 1080 (1988); 299 Lincoln Street, 292 NLRB 172, 175

(1988); El Mundo Corp., 301 NLRB 351 (1991). Contrary to our dis-

senting 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

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 9

Although the Board has rejected so-called standard visita-

tion clauses, it will grant narrowly tailored visitation on a

case-by-case basis “when the equities demonstrate a like-

lihood 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.

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.

In broad order cases

where the often egregious or widespread nature of the vi-

olations may reasonably be found to justify a longer post-

ing 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.

The visitation remedy, then, is a form of support for em-

ployees to better ensure they continue to have consistent

access to the information that the Board has ordered for

them.

It will further “relieve employees of the onus of a

watchdog role with respect to the Respondents’ compli-

ance, 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

the Takings Clause. Id. at 2079. In addition, and importantly, the visita-

tion remedy is not to be used to search for future independent violations

and must be clearly defined to meet compliance goals of specific reme-

dies.

See also 299 Lincoln Street, above at 175 (narrow visitation clause

warranted).

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).

Contrary to our dissenting colleague’s assertion, our discussion of

the visitation remedy here does not mean that it is presumptively war-

ranted in all broad order cases. Nor, as he claims, is it a blanket endorse-

ment of the remedy. Rather, as with the other remedies we outline, vis-

itation will be considered on a case-by-case basis and ordered where ap-

propriate in light of the facts and violations in a given broad order case.

This is particularly true when an extended compliance period may

cover unforeseen changes in an employer’s management or a union’s

leadership.

The judge recommended ordering the Board’s standard remedies

for the violations found in this case as well as additional remedies spe-

cifically compensating the Union for all bargaining expenses from No-

vember 11, 2019, through the date in the future when good-faith negoti-

ations 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

reasons below, in addition to those ordered by the judge,

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) mail-

ing 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, differ-

ent combinations of remedies or additional remedies may

be appropriate under the particular circumstances.

1. An explanation of rights. In cases (like this one) in-

volving 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 ef-

fect of the Respondent’s violations, and may help prevent

further unlawful conduct.

Thus, we have attached an ex-

planation of rights as Appendix B to this Decision and Or-

der.

We order the Respondent to post the explanation of

presence. As noted above, the Respondent failed to raise particularized

exceptions to the judge’s recommended remedies.

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 pres-

ence 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 expla-

nations 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.

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.

Our colleague notes that the Board has rarely ordered an explana-

tion of rights. It is true that this remedy may have been underutilized,

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 ex-

planation 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.

2. 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.

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 com-

mitted widespread or egregious violations, a public read-

ing 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 no-

tice and explanation of rights at the notice reading to

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 inter-

ested parties with a reminder of the remedies that may be particularly

appropriate in broad-order cases, with the goal of achieving greater con-

sistency in the administration of the Act and the remediation of viola-

tions.

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 em-

ployees by the Respondent’s chief executive officer or, at the Respond-

ent’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 persis-

tent nature of the Respondent’s unfair labor practices, especially in light

of its repetition of the same type of misconduct previously found unlaw-

ful”); 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 respon-

sible 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 Logis-

tics & 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

facilitate employee comprehension of both documents as

they hear them read.

3. 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 sig-

nificantly involved in the creation and approval of the Re-

spondent’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 Re-

spondent’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 be-

cause the Respondent’s unlawful conduct emanated from

the top, and so too should the reassurances that the unlaw-

ful conduct will end.

Doing so will help restore employ-

ees’ confidence in the Respondent’s commitment, from its

most senior representative, to respect the bargaining

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 cre-

ate a “chill atmosphere of fear.” Denton County Electric Coop, supra at

174. In Sysco Grand Rapids, the court rejected the notice reading rem-

edy because, among other things, the employer was not “a recidivist sub-

ject to ‘broader and more stringent’ Board remedies.” 825 Fed. Appx. at

359.

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.

See generally Three Sisters Sportswear Co. 312 NLRB at 880 (cit-

ing 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 or-

dering the employer’s chief executive, who was responsible for and di-

rectly 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 indi-

vidual (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 no-

tice signed by an authorized representative of the respondent. It is rea-

sonable 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.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 11

process as well as its assumption of the remedial obliga-

tions imposed by law.

4. Mailing of the notice and the explanation of rights.

Mailing the notice and explanation of rights to each em-

ployee will reach individuals who would not otherwise see

the posted and distributed documents but who were af-

fected by the Respondent’s unlawful conduct. This in-

cludes individuals who, because of the significant length

of time that has passed between the violations and this de-

cision, such as former employees, now lack access to the

facility,

and those unable to attend the meeting at which

the documents are to be read and distributed.

In addition,

a mailing remedy will give employees who do attend the

meeting a chance to review the documents in private, par-

ticularly if they are uncomfortable publicly accepting and

reviewing the notice and explanation of rights in the facil-

ity 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 doc-

uments to employees in all the ways the Respondent cus-

tomarily communicates with its employees.

The

See, e.g., Amerinox Processing, above, at slip op. at 4; Veritas

Health Services, Inc., 363 NLRB 963, 963 (2016) (finding a notice-mail-

ing 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 em-

ployer’s violations were “unquestionably deliberate, targeted, and egre-

gious” and the notice would reach individuals who no longer had access

to the employer’s facility but who were affected by the violations).

“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).

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 fa-

cility 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]espond-

ent remains in business”). Contrary to our colleague’s assertion,

“[n]otice mailing is a well-established part of the Board’s remedial rep-

ertoire 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

Respondent shall mail copies of the signed notice and ex-

planation 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 Re-

spondent must maintain and make available for inspection

proofs of mailings and receipts in connection with this

mailing obligation.

5. Extended posting periods for the notice and explana-

tion 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 exer-

cise their rights years after the actual violations”). Ex-

tended posting “also serves as a constant reminder of the

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 re-

sultant chill to employees’ protected activity can be better dispelled by a

notice mailing that allows them to read and understand the notice in pri-

vate 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 under-

stand 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’ fun-

damental statutory rights.” Hickmott, supra at 357. That the posting of

a Board remedial notice is the result of unlawful conduct violating em-

ployees’ statutory rights, fundamentally distinguishes it from our col-

league’s comparison of it to “numerous other notices that are routinely

posted in workplaces,” such as “[EEOC] notices or state wage and hour

notices.”

By setting out his “back-of-the envelope” calculations, our col-

league 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 dec-

ades 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).

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 respon-

sibilities 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 reme-

dial notice and explanation of rights for 1 year.

6. 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 fur-

ther action to ensure that our Order is fully carried out dur-

ing 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), “demon-

strate[s] a likelihood that [it] will fail to cooperate or oth-

erwise attempt to evade compliance” and “it appears pos-

sible 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 contin-

uous misconduct and unwillingness to comply with prior

directives placed on it by the Board and the court, has un-

dermined 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.

Under our order, a duly-appointed

Board agent may enter the Respondent’s facility for a pe-

riod 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 af-

fected 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 compli-

ance. As we have explained, this is “particularly im-

portant in reducing the risk of retaliation against them and

in restoring their confidence in their statutory rights.” Pa-

cific Beach, above, at 717. Our visitation clause carries a

1-year time limit, directly corresponding with the require-

ments concerning the posting of the notice and explana-

tion of rights. The purpose of the visitation is limited and

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

clearly defined in relation to compliance with that remedy

(as opposed to general compliance or a search for new vi-

olations). 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 ex-

planation of rights in the manner and time required.

ORDER

The National Labor Relations Board orders that the Re-

spondent, Noah’s Ark Processors, LLC d/b/a WR Re-

serve, Hastings, Nebraska, its officers, agents, successors,

and assigns, shall

1. 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-bar-

gaining agreement.

coercing employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

2. 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-bar-

gaining representative of the employees in the following

appropriate unit concerning terms and conditions of em-

ployment 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 distribu-

tion employees, excluding office clerical employees,

professional employees, guards and supervisors, as de-

fined 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.

requirement by posting the notice long enough to snap a photograph and

then removing it.

See Cherokee Marine Terminal, above at 1081–1082; Pacific

Beach, above, at 717.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 13

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 earn-

ings 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 in-

curred in collective bargaining during the period begin-

ning November 11, 2019, through January 24, 2020, in-

cluding but not limited to any lost wages the Union paid

to employee bargaining committee members for bargain-

ing 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 rec-

ords, social security payment records, timecards, person-

nel 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 un-

der the terms of this Order.

(i) Post at its Hastings, Nebraska facility, copies of the

attached notice and explanation of rights marked

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

“Appendix A” and “Appendix B.”

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 pa-

per 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 custom-

arily communicates with its employees by such means.

Reasonable steps shall be taken by the Respondent to en-

sure 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 proceed-

ings, 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 Has-

tings 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 Re-

spondent’s CEO Fischel Ziegelheim, copies of the at-

tached notice marked “Appendix A” and the attached ex-

planation of rights marked “Appendix B” in both English

and Spanish to all current and former unit employees em-

ployed by the Respondent at its Hastings, Nebraska facil-

ity at any time since November 11, 2019, at their home

addresses. The Respondent shall maintain proofs of mail-

ings 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 “Ap-

pendix 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 em-

ployee in attendance before the notice is read.

United States Court of Appeals Enforcing an Order of the National Labor

Relations Board.”

If the facilities involved in these proceedings are open and staffed

by a substantial complement of employees, the notice must be posted and

14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(l) For a 1-year period, allow the Board or any of its

duly-authorized representatives to obtain, in oral and doc-

umentary forms, discovery and evidence from the Re-

spondent, its officers, agents, successors or assigns, and its

employees or former employees having knowledge con-

cerning the posting and maintenance of the notice and the

explanation of rights as well as the mailing and dissemi-

nation 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 Re-

spondents’ 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 certifi-

cation 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

______________________________________

Lauren McFerran, Chairman

______________________________________

David M. Prouty, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

read within 14 days after service by the Region. If the facilities involved

in these proceedings are closed or not staffed by a substantial comple-

ment 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 re-

turned to work. If, while closed or not staffed by a substantial comple-

ment of employees due to the pandemic, the Respondent is communi-

cating with its employees by electronic means, the notice must also be

posted by such electronic means within 14 days after service by the Re-

gion. 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].”

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 re-

gard 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

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.

I also agree that a broad cease-and-desist

order is warranted here.

And like my colleagues, I would

order the Respondent to reimburse the Union for its bar-

gaining expenses and to read the remedial notice to its em-

ployees, 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 addi-

tional extraordinary remedies but also to engage in an ex-

tended 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 partic-

ular case is not limited by the General Counsel’s or

judge’s recommendations or the parties’ exceptions.

Ac-

cordingly, the majority easily could have written a deci-

sion 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

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).

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 disre-

gard for the employees’ fundamental statutory rights.” Hickmott Foods,

242 NLRB 1357, 1357 (1979). I agree that this standard is satisfied here.

See, e.g., Teamsters Local 122, 334 NLRB 1190, 1195 (2001) (or-

dering the respondent to reimburse negotiation expenses, where no party

excepted to the judge’s failure to include such a remedy in the recom-

mended order); WestPac Electric, 321 NLRB 1322, 1322 (1996) (ob-

serving that “the Board has broad discretion in determining the appropri-

ate 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 ap-

propriate 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 re-

peated observation that the Respondent did not except to the judge’s rec-

ommended remedies is entirely irrelevant.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 15

reminder of the remedies that may be particularly appro-

priate in broad-order cases.” But the Board does not issue

advisory opinions (except in narrow circumstances not

present here).

And, because the Board has never previ-

ously said that a broad cease-and-desist order may make

other remedies “particularly appropriate,” let alone enu-

merated 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 unmistaka-

bly) even encouraging her to seek them. And by making

broad cease-and-desist orders the predicate for these ex-

traordinary 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.

I have

not found any other case in which the Board has directly

advised the General Counsel how to litigate future cases,

with good reason. In addition to the fact that doing so

constitutes an improper intrusion into the General Coun-

sel’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 be-

cause 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

See James M. Casida, 152 NLRB 526 (1965); Broward County Port

Authority, 144 NLRB 1539 (1963).

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 pros-

ecutorial authority.

The Board has expressed a willingness to consider ordering a par-

ticular remedy in a future appropriate case. See HTH Corp. d/b/a Pacific

Beach Hotel, 361 NLRB 709, 719 (2014) (signaling openness to consid-

ering 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 occa-

sion arise to do so. Neither situation compares with what my colleagues

do here.

My colleagues hinge their consideration of extraordinary remedies

to issuance of a broad cease-and-desist order, and they signal their

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 col-

leagues’ discussion of remedies that may be appropriate

whenever they deem a broad cease-and-desist order war-

ranted is unnecessary to decide what remedies are war-

ranted here.

That decision is based on the facts and cir-

cumstances presented in this case. Indeed, my colleagues

acknowledge as much. They do not hold that certain rem-

edies must be ordered whenever a broad order issues, nor

do they hold that certain remedies cannot be ordered ex-

cept in tandem with a broad order, or that remedies they

do not discuss are precluded. In fact, they state to the con-

trary 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 rem-

edies 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 ad-

mit that the decision whether to order one or more extraor-

dinary 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 to-

day’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 rem-

edies, and will not inadvertently stop short . . . in

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 Broadcast-

ing, Inc. d/b/a KOIN-TV, 371 NLRB No. 118, slip op. at 3 (2022); Ameri-

nox 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 extraor-

dinary 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) (hold-

ing that the Board’s “power to command affirmative action is remedial,

not punitive”).

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

determining which remedies to order.” But, again, as my

colleagues themselves recognize, the Board has complete

authority—subject to judicial review and within the con-

straints 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 col-

leagues’ estimation, it will have the authority to do so, un-

constrained by anything in the majority’s remedial dis-

course, which serves no real purpose other than as a pre-

view of coming attractions under the Board’s current ma-

jority.

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.

For the reasons explained below, I believe most of

those remedies are unwarranted.

The Bargaining-Expenses Remedy. I agree with my col-

leagues, for the reasons they state, that the Respondent

should be required to compensate the Union for its bar-

gaining expenses.

I disagree with my colleagues bargaining-expenses

remedy in one respect, however. Contrary to my col-

leagues, 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

My colleagues fail to cite a single case where a court of appeals has

faulted the Board for failing to order any particular extraordinary rem-

edy, nor am I aware of any.

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 re-

quire 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.

The judge recommended that the Respondent be required to reim-

burse the Union for negotiating expenses incurred from the date it began

to bargain in bad faith “until such time as [the Respondent] begins bar-

gaining 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 Re-

spondent declared impasse. The record indicates that no bargaining took

place after January 13. But even if ending the bargaining-expenses-re-

imbursement 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 Hospi-

tality, Inc., 369 NLRB No. 111, slip op. at 5 (2020). And it is problem-

atic. On its face, the judge’s wording would have required the Respond-

ent 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 bar-

gain in good faith. The determination of whether the Respondent bar-

gained in bad faith once again apparently would be left to compliance.

the extent those earnings were not reimbursed by the Un-

ion. See Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371

NLRB No. 118, slip op. at 2–3 fn. 6 (Member Kaplan, dis-

senting in part). Neither would I include, in calculating

the reimbursement of the Union’s bargaining expenses,

amounts spent by the Union to reimburse employee mem-

bers of the Union’s bargaining committee. Id.

The Notice-Reading Remedy. I agree with the judge and

the majority that the facts and circumstances warrant or-

dering 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.

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 Respond-

ent’s option, by a Board agent in the official’s presence.

Second, contrary to my colleagues, I would not order

the Respondent to distribute copies of the notice to em-

ployees at the meeting where the remedial notice is read.

The majority cites no precedent for ordering this remedy,

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 is-

sues 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.”).

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.

I acknowledge that the Court of Appeals for the District of Colum-

bia 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 individ-

uals . . . stand at attention as human demonstratives in the employer’s

confession of sins” does not save the order from unenforceability). Alt-

hough I have not previously embraced the position adopted by the Fifth

and Sixth Circuits, I may consider doing so in a future appropriate case.

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).

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 17

and I am not aware of any.

Nor do I believe that my

colleagues’ novel remedy is justified in this case. The ma-

jority 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 man-

ner” thereafter. This rationale is untethered from the real-

ities of this case. The meat of the remedial notice is read-

ily 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 be-

lieve 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 em-

ployees are customarily posted, and it will also be distrib-

uted to employees by electronic means if the Respondent

customarily communicates with its employees by such

means. These standard remedies provide ample oppor-

tunity for employees to absorb its content.

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 en-

forcing such a remedy, and I am not aware of any.

Alt-

hough 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 objection-

able 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 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).

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.

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 Field-

crest Cannon v. NLRB, 97 F.3d 65 (4th Cir. 1996); Three Sisters Sports-

wear 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).

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.

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

the obvious, there is and can be no saving option of having

a Board agent sign the notice instead of Ziegelheim.

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.

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 rem-

edy 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 stand-

ard 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 commit-

ted.

But the Board does not order notice mailing outright

unless the respondent has already gone out of business or

closed that facility,

or other circumstances would make

notice posting futile.

So far as the record shows, the Re-

spondent remains in business and has not closed its Has-

tings, Nebraska facility, and its employees regularly report

to that facility.

otherwise punish him, their “signing” remedies are impermissible. See

Republic Steel Corp. v. NLRB, 311 U.S. at 11–12.

Indian Hills Care Center, 321 NLRB at 144 (“[W]e shall modify

our standard notice-posting provision to state that if the respondent’s fa-

cility has closed, the respondent shall mail the notice to employees.”).

Id. (“If the record indicates that the respondent’s facility has closed,

the Board routinely provides for mailing of the notice to employees.”).

See, e.g., Bud Antle, Inc., 359 NLRB 1257, 1257 (2013) (ordering

notice mailing where “the work force move[d] from place to place har-

vesting 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 Com-

pany 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 order-

ing notice mailing here. Although the Board did not expressly rely on

this fact, the respondent in Newman Livestock-11 had gone out of busi-

ness. See id. at 347 (“The record shows that the [r]espondent was no

longer in business after May 2012.”).

18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

My colleagues say that a notice-mailing remedy is war-

ranted 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 no-

tice 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 re-

quire only that the notice be posted.

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 wrong-

doing 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. Ac-

cordingly, my colleagues have no valid basis for linking

notice mailing to broad orders.

Finally, my colleagues justify notice mailing on the ba-

sis that, in cases where broad orders are appropriate, em-

ployees 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.

Never, to my knowledge,

has any party ever complained to the Board that this rem-

edy 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 nu-

merous other notices that are routinely posted in work-

places, such as Equal Employment Opportunity Commis-

sion notices or state wage and hour notices. Accordingly,

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).

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-mail-

ing 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

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,

the Board had ordered the posting of an expla-

nation 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 explana-

tion of rights in only one of those cases, Pacific Beach

Hotel, where the respondent’s history of unfair labor prac-

tices and defiance of prior Board and court orders was

such as to render that case virtually sui generis.

The Re-

spondent is a recidivist, but the only Section 7 right impli-

cated in this case is the right of employees to bargain col-

lectively through representatives of their own choosing.

The remedial notice will inform the Respondent’s em-

ployees 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 explana-

tion of rights for one year, unless the parties reach a col-

lective-bargaining agreement before the year is up. I dis-

sent.

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 de-

scribed as “off the charts.” A second was Ozburn-Hessey

Logistics, LLC, 366 NLRB No. 177 (2018),

where the

Board, in justifying the extended notice-posting period,

explained that this was the sixth case involving this re-

spondent, 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),

where the

300 employees at $8.50 a letter, compliance with the mailing remedy will

cost the Respondent anywhere from $2,125 to $2,550.

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

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

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 Suc-

cessor 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).

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

Petitions for review dismissed upon joint motion of the parties No.

18-1237, 2021 WL 1439791 (D.C. Cir. 2021).

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 19

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 as-

suming 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 discrep-

ancy between the 120-day posting period in UPMC and

the 1-year posting period my colleagues impose here ap-

pears to be arbitrary and capricious.

The Visitation Remedy. My colleagues also impose a

visitation remedy, under which the Respondent must per-

mit a Board agent to enter its facility to determine

“whether the Respondent is in compliance with our post-

ing 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 im-

pose 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 par-

agraph requiring the respondent to file a sworn certifica-

tion attesting to the steps it has taken to comply. Tradi-

tionally, the Board has considered the respondent’s self-

reporting, under oath, of compliance to be sufficient, in-

cluding in cases where the Board has imposed a broad

cease-and-desist order.

My colleagues, however, find

this remedy insufficient here.

Indeed, they take the view

that the Board’s long-standing methods for ensuring par-

ties’ compliance may be insufficient in every broad-order

case, and they indicate that they will consider a visitation

remedy in all such cases.

Although they deny that they

will find visitation and the other extraordinary remedies

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 enforce-

ment were invalid). It could be argued that, to the extent that my col-

leagues aim to make posting an explanation-of-rights notice for a full

year a standard remedy, the majority is improperly attempting to accom-

plish through remedial means what the Board tried and failed to accom-

plish through rulemaking.

Of course, if a respondent does not comply with a Board order, the

Board has methods for addressing such non-compliance, up to and in-

cluding civil contempt proceedings.

According to my colleagues, the Respondent’s misconduct “has

undermined any reasonable expectation that we can rely on it to accu-

rately 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 de-

cisions, each of which had been enforced by a court of appeals. See id.,

slip op. at 1 fn. 3.

they canvass presumptively appropriate in every broad-or-

der 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 at-

tempt 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 reme-

dies. 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 rem-

edy in cases involving broad orders fail to satisfy the re-

quirements set forth in Board law, it also constitutes an

unnecessary intrusion on property owners’ rights.

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 re-

spondents to grant Board agents access to a workplace.

There is an obvious alternative: requiring respondents to

furnish photographic evidence of compliance.

This

would be rather burdensome where, as here, mailing

Furthermore, it is puzzling that the majority orders the Respondent to

file a sworn report of compliance, despite its declaration that the Re-

spondent cannot be relied upon to accurately report its compliance with

the Board’s order.

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 col-

leagues chose not to seek public comment in this case as well.

Not only is the intrusion unnecessary, but the recent Supreme Court

decision in Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021), sug-

gests that the intrusion may violate the Takings Clause of the Constitu-

tion as well. Id. at 2077 (indicating that the Court’s finding that the Cal-

ifornia 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 lit-

igated in the latter case).

The majority rejects this alternative, speculating that the Respond-

ent 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

20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 unnec-

essary expenditure of Agency resources. In this particular

case, the closest Board office to the Respondent’s Has-

tings, Nebraska facility is Region 14’s subregional office

in Overland Park, Kansas, 311 miles away. I cannot con-

done 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 avail-

able.

For these reasons, as to the above issues, I respectfully

concur in part and dissent in part.

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

______________________________________

Marvin E. Kaplan, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX A

NOTICE TO EMPLOYEES

POSTED, READ, AND MAILED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vi-

olated Federal labor law and has ordered us to post and

obey this notice.

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 gov-

ernment under oath, particularly when such a lie could be exposed by

any and every employee willing to inform on the Respondent to the Re-

gion?

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.

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your

behalf

Act together with other employees for your bene-

fit and protection

Choose not to engage in any of these protected ac-

tivities.

WE WILL NOT fail and refuse to bargain in good faith

with United Food and Commercial Workers Local Union

No. 293 (the Union) as the exclusive collective-bargaining

representative of our employees in the bargaining unit.

WE WILL NOT change your terms and conditions of em-

ployment by implementing a collective-bargaining pro-

posal without first bargaining with the Union to an overall

good-faith impasse for a successor collective-bargaining

agreement.

WE WILL NOT in any other manner interfere with, re-

strain, or coerce you in the exercise of the rights listed

above.

WE WILL, on request, bargain with the Union in good

faith and at reasonable times as the exclusive collective-

bargaining representative of our employees in the follow-

ing appropriate unit concerning terms and conditions of

employment and, if an understanding is reached, embody

it in a signed agreement:

All production, maintenance, shag drivers and distribu-

tion employees, excluding office clerical employees,

professional employees, guards and supervisors, as de-

fined in the Act.

WE WILL, on request by the Union, hold bargaining ses-

sions for a minimum of 24 hours per month, at least 6

discussion suggests a potentially broader scope for this remedy. “Visit-

ation,” they say, “permits the Board to inspect the records of a respond-

ent, 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) (“Sec-

tion 10 of the National Labor Relations Act authorizes the National La-

bor Relations Board to initiate unfair labor practice proceedings when-

ever some person charges that another person has committed such prac-

tices. 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 un-

less “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)).

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 21

hours per bargaining session, or, in the alternative, on an-

other schedule to which the Union agrees, and WE WILL

submit written bargaining progress reports to the compli-

ance officer for Region 14, with a copy served on the Un-

ion.

WE WILL rescind the changes in the terms and condi-

tions of employment for our unit employees that were uni-

laterally implemented under our January 13, 2020 final of-

fer.

WE WILL make whole, with interest, eligible employees

in the above-described unit for any loss of earnings and

benefits resulting from our unilateral implementation of

our January 13, 2020 final offer, and WE WILL also make

them whole for any other direct or foreseeable pecuniary

harms suffered as a result of our unilateral implementation

of our January 13, 2020 final offer.

WE WILL make whole any affected employee bargain-

ing committee members for any earnings lost while at-

tending bargaining sessions, plus interest, to the extent

those earnings were not reimbursed by the Union.

WE WILL compensate affected employees for the ad-

verse tax consequences, if any, of receiving a lump-sum

backpay awards, and WE WILL file with the Regional Di-

rector 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.

WE WILL 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 the backpay award.

WE WILL reimburse the Union for all bargaining ex-

penses, that it incurred from 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.

WE WILL post this notice and an Explanation of Rights

at our facility in Hastings, Nebraska, for a period of 1 year.

In addition, WE WILL post the notice and the Explanation

of Rights on our intranet and any other electronic message

area, including email, where we generally communicate

with you.

WE WILL, within 14 days from the date of the Board’s

order, mail a copy of this notice and the Explanation of

Rights to the homes of all current and former employees

employed by use at any time since November 11, 2019.

WE WILL maintain proofs of mailing as required by the

Board.

WE WILL hold a meeting or meetings during working

hours and have this notice and the Board’s Explanation of

Rights read to you and your fellow workers 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 our 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 by CEO Fischel Ziegelheim.

WE WILL, 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 Re-

spondent, its officers, agents, successors or assigns, and its

employees or former employees having knowledge con-

cerning the posting and maintenance of the notice and Ex-

planation of Rights as well as the mailing and dissemina-

tion of those documents in all the ways set forth in the

Amended Remedy section of this Decision to all the indi-

viduals identified in the Amended Remedy section of this

decision and WE WILL make available for inspection

proofs of mailings and receipts as required.

NOAH’S ARK PROCESSORS, LLC D/B/A WR

RESERVE

The Board’s decision can be found at

http://www.nlrb.gov/case/14-CA-255658 or by using the QR

code below. Alternatively, you can obtain a copy of the de-

cision from the Executive Secretary, National Labor Rela-

tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,

or by calling (202) 273–1940.

APPENDIX B

EXPLANATION OF RIGHTS

POSTED, READ, AND MAILED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

Employees covered by the National Labor Relations

Act have the right to join together to improve their wages

and working conditions, including by organizing a union

and bargaining collectively with their employer, and also

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the right to choose not to do so. This Explanation of

Rights contains important information about your rights

under this Federal law. The National Labor Relations

Board has ordered Noah’s Ark to provide you with the Ex-

planation of Rights to describe your rights and provide ex-

amples of illegal behavior.

Under the National Labor Relations Act, you have

the right to:

• Contact a union and, if they become your repre-

sentative, have them negotiate with your employer

concerning your wages, hours, and working condi-

tions.

• Support your union in negotiations.

• Discuss your wages, benefits, other terms and con-

ditions of employment, and negotiations between

the union and your employer with your coworkers

or your union.

• Take action with one or more coworkers to improve

your working conditions.

• Strike and picket, depending on the purpose or

means used.

• Choose not to do any of these activities.

It is illegal for your employer to:

• Make unilateral changes in your terms and condi-

tions of employment by implementing a collective-

bargaining proposal without first bargaining with

the Union to an overall good-faith impasse for a

successor collective-bargaining agreement.

There are rules that govern your employer’s con-

duct during collective bargaining with your union:

• Your employer must meet with your union at rea-

sonable times to bargain in good faith about wages,

hours, vacation time, insurance, safety practices,

and other mandatory subjects.

• Your employer must participate actively in the ne-

gotiations with a sincere intent to reach an agree-

ment.

• Your employer must not change existing working

terms and conditions while bargaining is ongoing.

• Your employer must honor any collective-bargain-

ing agreement that it reaches with your union.

• Your employer cannot retaliate against you if you

participate or assist your union in collective bar-

gaining.

Illegal conduct will not be permitted. The National

Labor Relations Board enforces the Act by prosecuting vi-

olations. If you believe your rights or the rights of others

Unless otherwise stated, factual findings arise from joint exhibits,

stipulations, and undisputed evidence.

have been violated, you should contact the NLRB

promptly to protect your rights, generally within 6 months

of the unlawful activity. You may ask about a possible

violation without your employer or anyone else being in-

formed that you have done so. The NLRB will conduct an

investigation of possible violations if a charge is filed.

Charges may be filed by any person and need not be filed

by the employee directly affected by the violation.

You can contact the NLRB’s regional office, located at:

8600 Farley St. – Suite 100, Overland Park, KS 66212.

The Board’s decision can be found at

http://www.nlrb.gov/case/14-CA-255658 or by using the

QR code below. Alternatively, you can obtain a copy of

the decision from the Executive Secretary, National Labor

Relations Board, 1015 Half Street, S.E., Washington, D.C.

20570, or by calling (202) 273–1940.

William F. LeMaster and Julie Covel, Esqs., for the General

Counsel.

Jerry L. Pigsley, Esq. (Woods Aiken LLP), for the Respondent.

Frederick Zarate, Esq. (Blake Uhlig Pennsylvania), for the

Charging Party.

DECISION

STATEMENT OF THE CASE

ROBERT A. RINGLER, Administrative Law Judge. This case

was heard in December 2020 and January 2021. The complaint

alleged that Noah’s Ark Processors, LLC d/b/a WR Reserve

(NAP or the Respondent) violated §§8(a)(1) and (5) of the Na-

tional Labor Relations Act (the Act) by: bargaining in bad faith

while negotiating a successor contract with the United Food and

Commercial Workers Local Union No. 93 (the Union); and then

implementing a final offer, absent a valid, good-faith impasse.

On the record, I make the following

FINDINGS OF FACT

I. JURISDICTION

NAP owns and runs meat processing plant in Hastings, Ne-

braska (the plant). It annually sells and ships products worth

over $50,000 directly outside of Nebraska. It is, thus, engaged

in commerce under §2(2), (6), and (7) of the Act. The Union is

a §2(5) labor organization.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 23

II. UNFAIR LABOR PRACTICES

A. Introduction

1. Purchase of the plant

In January 2015, the Nebraska Prime Group sold the plant to

NAP, which seamlessly continued its meat processing operations

and adopted the extant collective-bargaining agreement that ran

from January 28, 2013, to January 28, 2018 (the CBA). (Jt. Exhs.

2, 33.) The CBA covered the following appropriate bargaining

unit of plant employees (the Unit):

All production, maintenance, shag drivers and distribution em-

ployees employed at the Hastings, Nebraska plant, excluding

office clerical employees, professional employees, guards and

supervisors, as defined in the Act.

(Jt Exh. 2.)

2. Prior litigation

Following the January 28, 2018 expiration of the CBA, NAP

and the Union met for negotiations. NAP sabotaged these nego-

tiations by bargaining in bad faith and unlawfully implementing

a final offer absent a valid impasse. These actions prompted a

round of Board and Federal Court litigation, where NAP was re-

peatedly found to have violated the Act.

i. §10(j) Injunction, Contempt Order, and Sanctions

On May 10, 2019, the U.S. District Court of Nebraska issued

a §10(j) injunction, which ordered NAP to, inter alia, cease: fir-

ing workers for their Union activities; refusing to provide infor-

mation to the Union; making unilateral changes; bargaining in

bad faith; and imposing a final offer absent a valid impasse. NAP

was, accordingly, ordered to: make reinstatement offers; supply

the requested information; bargain in good faith according to a

set schedule; give the Union notice and an opportunity to bargain

over contemplated changes to the Unit’s terms and conditions of

employment; and, upon request, rescind the unilateral changes

implemented under its unlawful final offer dated January 2, 2019

(the first final offer). (Jt. Exhs. 4, 8.)

Somewhat surprisingly, the §10(j) injunction was insufficient

to move NAP to bargain in good faith. Its recalcitrance prompted

the General Counsel (the GC) to pursue a contempt finding and

connected sanctions. On October 17, 2019, NAP was found in

contempt of the §10(j) Order and, on November 1, 2019, sanc-

tions were imposed. (Jt. Exhs. 9–10.)

ii. Board Order

On January 27, 2021, the Board issued a Decision and Order

in Noah’s Ark Processors, LLC d/b/a WR Processors, 370 NLRB

No. 74 (2021) (NAP I), and held, inter alia, that NAP violated

§§8(a)(1), (3), and (5) and 8(d) by: failing to provide infor-

mation; failing to deduct and remit Union dues; making unilat-

eral changes; firing workers for their Union activities; bargaining

in bad faith; and declaring impasse and imposing a final offer

The parties previously met for bargaining for less than an hour on

August 6, 2019. (GC Exh. 4.) Very little, if any, progress was made at

that time; NAP mostly reiterated its earlier bargaining stance. (Id.); see

also (Jt. Exh. 4).

ER 1 stands for NAP bargaining proposal 1, whereas U 1 stands for

Union bargaining proposal 1.

absent a valid impasse.

B. Collective Bargaining

On November 5, 2019, following the U.S. District Court’s is-

suance of sanctions, NAP solicited the Union to continue bar-

gaining. (Jt. Exh. 15.) The parties held seven bargaining ses-

sions, before NAP again prematurely declared impasse and im-

plemented an invalid final offer.

1. November 11, 2019 meeting

The Union was represented by these officers and business

agents: Eric Reeder, April Guerrero, Rodney Brejcha, and Car-

men Perez. NAP was represented by Chief Executive Officer

Fischel Ziegelheim and attorney Jerry Pigsley. Their meeting is

summarized below:

Article Parties’ Positions

Art. 1, Recog-

nition (ER 1)

NAP proposed deleting “maintenance em-

ployees and shag drivers” from the CBA’s

unit description. This article remained

open.

Art. 2, Mainte-

nance of

Memb./Dues

(ER 2, U 1)

NAP proposed adding, “Union agrees that

an employee may at any time contact the

Company's HR Department to withdraw

from the Union and cease having Union

dues withheld from the employee's pay.”

The Union proposed adding that NAP

would provide a weekly membership list

and other related data. This article re-

mained open.

Art. 3, Mgmt.

Rights (U 2, 3)

The Union proposed moving, “employees

must pass probation to enjoy benefits,” to

Art. 17, and rephrasing it to, “employees

must pass probation to be eligible for

health benefits.” This article remained

open.

Art. 4, Griev-

ance Proce-

dure (ER 3)

NAP proposed deleting grievance steps 3

and 4, and binding arbitration; the Union

countered with a streamlined grievance

procedure retaining arbitration. This arti-

cle remained open.

Art. 5, Bulletin

Bd. (ER 4)

NAP proposed removing the Union’s

“glassed-in” bulletin board enclosure.

This article remained open.

Art. 6, Injury

(ER 5)

NAP proposed deleting the article, which

gave notice to the Union about workplace

injuries and deaths. This article remained

open.

Art. 7, Safety

(ER 6, U 4, 5)

NAP proposed deleting the entire article.

The Union proposed adding that a worker,

who ident

ifies an unsafe condition, can

ER 3 was more regressive than the first final offer, which did seek

to not eliminate arbitration. Although NAP cited some difficulty finding

local arbitrators, this unavailability was not a new issue and it otherwise

failed to explain the motivation behind this proposal.

ER 4 was more regressive than the first final offer, which did not

seek to remove the glass enclosure. NAP failed to explain its rationale.

24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

refuse their assignment until it is remedied.

This article remained open.

Art. 8, Vaca-

tion

(E 7, U 6

–

NAP proposed deleting leave days, while

Union proposed adding days. This article

remained open.

Art. 9, Holi-

days

(ER 8, U 9–14)

NAP proposed eliminating holiday over-

time pay and other benefits, while the Un-

ion sought increases. This article re-

mained open.

Article Parties’ Positions

Art. 10, Hours

(ER 9, U 15–17)

NAP proposed eliminating call-in and

temporary job transfer benefits. The Un-

ion proposed, inter alia, increasing mini-

mum call-in hours. This article remained

open.

Art. 11, Military

Service

No changes to this article were proposed

at this

session by either party

Art. 12, Rates of

Pay Provision

(ER 10)

NAP sought to eliminate all language set-

ting pay rates, and replacing it with, “Un-

ion recognizes management's right to in-

crease pay without the agreement of the

Union.” The Union stated that its wage

proposal would be later provided. This

article remained open.

Art. 13, Subcon-

tracting

(ER 11)

NAP proposed deleting the Union’s sub-

contracting protections, and replacing it

with, “Union recognizes management's

right to subcontract any existing opera-

tions.”

This article remained open.

Art. 14, Extra

Work (ER 12)

NAP proposed eliminating the equitable

distribution of extra work opportunities,

and replacing it with, “Union recognizes

management's right to assign extra work

opportunities.” The Union did not pro-

pose any changes. This article remained

open.

Art. 15, Non-

discrimination

(U 18, 19)

The Union proposed an update to include

sexual preference, sexual identity and ge-

netic information. This article remained

open.

Art. 16, Co. and

Union Resp.

No changes to the no-strike, no-lockout

provision were proposed.

Art. 17, Senior-

ity (ER 13, U

–

22)

NAP sought to eliminate bargaining unit

seniority, which factored into job bids.

The Union proposed to shorten probation

ER 7 was more regressive than the first final offer, which did not

cut vacation benefits. NAP failed to explain its new position.

ER 8 was more regressive than the first final offer, which cut holiday

overtime. NAP failed to explain its new position.

ER 9 was more regressive than then first final offer, which never

reduced these benefits. NAP failed to explain its new position.

The strikethrough denotes resolved issues, agreements to leave the

CBA unchanged, or tentative agreements.

ER 11 was more regressive than the first final offer, which never

ended subcontracting rights. NAP failed to explain its new position.

and change the application of seniority.

This article remained open.

Art. 18, Rest

Periods (U 23‒

24)

The Union proposed creating a paid 15-

minute break and timing breaks during

set daily windows. This article remained

open.

Art 19, Funeral

Leave (U 25)

The Union proposed changing funeral

leave from 7.5 to 8 hours. This article re-

mained open.

Art. 20, Leave

of Absence (ER

14)

NAP proposed eliminating leaves of ab-

sence for the Union convention. This ar-

ticle remained open.

Art. 21, Plant

Visitation (ER

15)

NAP proposed eliminating the article,

which gave the Union the right to visit the

plant and replacing it with, “Union recog-

nizes management's right to allow Union

officers and representatives to visit loca-

tions designated by Company manage-

ment.”

This article remained open.

Art. 22, Safety

Equip. and

Knives

No changes to this article were proposed

at this session by either party.

Art. 23, Misc.

(ER 16)

NAP proposed deleting the 12-hour

workday cap and replacing it with the

“Union recognizes management's right to

assign work in excess of twelve (12)

hours a day.” This article remained

open.

Contract Dura-

tion (ER 17, U

26)

NAP proposed a 5-year term, while the

Union stated that its proposal would be

submitted at a later session. This article

remained open.

Job Listings and

Pay Rates (U

27)

The Union stated that its job listings and

rates of pay proposal would be submitted

at a later session. This issue remained

open.

401K Plan

(U 28)

The Union proposed creating a 401(K)

plan, with an employer match. It reserved

its right, however, to offer plan details at

a later session. This issue remained

open.

Seniority Lists

(U 29)

The Union proposed that NAP would

provide a weekly new hire and termina-

tion list, and monthly seniority list. This

issue remained open.

Article Parties’ Positions

ER 12 was more regressive than the first final offer, which never

changed extra work procedures. NAP failed to explain its new position.

ER 13 was more regressive than the first final offer, which never

eliminated bargaining unit seniority. NAP failed to explain its new posi-

tion.

ER 14 was more regressive than the first final offer, which never

ended such leaves. NAP failed to explain its new position.

ER 16 was more regressive than the first final offer, which never

remove this hourly limitation. NAP failed to explain its new position.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 25

Temp. Va-

cancies (U

30)

The Union proposed a revised temporary

vacancy procedure. This issue remained

open.

Hours of

Work

(U 31)

The Union proposed a guaranteed 36-hour

workweek. This issue remained open.

Plant Studies

(U 32)

The Union sought to perform plant studies

with advanced notice. This issue remained

open.

(Jt. 26.)

In sum, although the parties agreed to leave articles 11 and 22

unchanged, all other proposals (i.e., ER 1–17 and U 1–32) re-

mained open at the end of the session. NAP’s opening proposal

was noteworthy because 10 of 17 its proposals were substantially

more regressive than the proposals contained in its unlawful first

final offer from less than a year before. Given that NAP never

explained the changed circumstances that warranted it seeking

greater cutbacks, it is difficult to see how it rationally believed

that its opener might induce fruitful bargaining.

2. November 18, 2019 meeting

The Union was represented by Reeder, Guerrero, Brejcha and

Perez. NAP was represented by Ziegelheim and Pigsley. Their

discussions are summarized below:

Article Parties’ Positions

Art. 1, Recognition (ER

No change in position;

article re-

mained open.

Art. 2, Maint. of

Memb./Dues (ER 2, U

No change in position;

article re-

mained open.

Art. 3, Mgmt. Rights (U

2, 3)

No change in position;

article re-

mained open.

Art. 4, Grievance Pro-

cedure (ER 3)

The Union countered NAP’s pro-

posal to delete grievance steps 3 to

4 and arbitration, with a stream-

lined grievance and arbitration

procedure. Following NAP’s re-

jection of this counter, the Union

countered with retaining the status

quo, which NAP rejected.

This

article remained open.

Art. 5, Bulletin Bd. (ER

NAP withdrew its proposal.

Art. 6, Injury (ER 5) No change in position;

article re-

mained open.

Art. 7, Safety (ER 6, U

4, 5)

NAP countered with creating a

safety committee; the Union fur-

ther modified its position. This ar-

ticle remained open.

The Union protested that, because the CBA had a no-strike, no-

lockout provision, it needed arbitration because it would be otherwise

powerless to strike during the CBA’s term to redress unilateral changes.

Although NAP replied that the Union could seek redress by filing a

breach of contract action in state court (Jt. Exh. 27), its position was

Art. 8, Vacation (E 7,

U 6

–

No change in position;

article re-

mained open.

Art. 9, Holidays (ER 8,

U 9

–

14)

No change in position;

articl

e re-

mained open.

Art. 10, Hours of Work

(ER 9, U 15

–

17)

No change in position;

article re-

mained open.

Art. 12, Rates of Pay

Provision

(ER 10)

No change in position;

article re-

mained open.

Art. 13, Subcontracting

(ER 11)

No change in position;

article re-

mained open.

Art. 14, Extra Work

(ER 12)

No change in position;

article re-

mained open.

Art. 15, Non-discrimi-

nation

(U 18, 19)

No change in position;

article re-

mained open.

Art. 17, Seniority (ER

13, U 20–22)

No change in position;

article re-

mained open.

Art. 18, Rest Periods

(U 23

‒24)

No change in position;

article re-

mained open.

Art 19, Funeral Leave

(U 25)

No change in position;

article re-

mained open.

Article Parties’ Positions

Art. 20, Leave of Ab-

sence (ER 14)

No change in position;

article re-

mained open.

Art. 21, Plant Visita-

tion

(ER 15)

No change in position;

article re-

mained open.

Art. 23, Misc. (ER

16)

No change in position;

article re-

mained open.

Contract Duration

(ER 17, U 26)

No change in position;

article re-

mained open.

Job Listings and Pay

Rates (U 27)

Union’s wage proposal to be subse-

quently submitted; article remained

open.

401K Plan (U 28) Union’s 401K proposal to be subse-

quently submitted; article remained

open.

Seniority Lists (U

29)

No change in position;

article re-

mained open.

Temp. Vacancies (U

30)

No change in position;

article re-

mained open.

Hours of Work (U

31)

No change in position;

article re-

mained open.

Plant Studies (U 32) No change in position;

article re-

mained open.

(Jt. Exhs. 26–27.)

In sum, at the close of the session, with the exception of

NAP’s withdrawal of ER 4, the number of open proposals re-

mained unchanged. Other proposals were mostly flatly rejected

with little discussion. The parties solely exchanged ideas and

modified their positions on Article 4, Grievance Procedure, Ar-

ticle 5, Bulletin Board and Article 7, Safety. They left with an

misleading, given that such a state suit would be preempted under estab-

lished precedent. See, e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985).

NAP responded to a question about this proposal, but, no obvious

bargaining occurred.

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

agreement on a single easy item, i.e., leaving the union bulletin

board locked.

3. November 26, 2019 meeting

The Union was represented by Reeder, Guerrero, and Perez.

NAP was represented by Pigsley. Their discussions are summa-

rized below:

Article Parties’ Positions

Art. 1, Recognition

(ER 1)

No change in position;

article re-

mained open.

Art. 2, Maint. of

Memb./Dues (ER 2, U

Union proposed another change;

article remained open.

Art. 3, Mgmt. Rights (U

2, 3)

NAP made a counter, which

sought to grant it the right to assign

Unit work to non-unit foremen and

afford it more control to change

work rules.

The Union’s pro-

posals were unchanged; article re-

mained open

Art. 4, Grievance Pro-

cedure

(ER 3)

No change in position;

article re-

mained open.

Art. 6, Injury (ER 5) No change in position;

article re-

mained open.

Art. 7, Safety (ER 6, U

4, 5)

No change in position;

article re-

mained open.

Art. 8, Vacation Pro-

ced.

(E 7, U 6

–

No change in position;

article re-

mained open.

Art. 9, Holidays (ER 8,

U 9

–

14)

No change in position;

article re-

mained open.

Art. 10, Hours of Work

(ER 9, U 15

–

17)

No change in position;

article re-

mained open.

Art. 12, Rates of Pay

Provision

(ER 10)

No change in position;

article re-

mained open.

Art. 13, Subcontracting

(ER 11)

No change in position;

article re-

mained open.

Art. 14, Extra Work

(ER 12)

No change in position;

article re-

mained open.

Art. 15, Non-discrimi-

nation (U 18, 19)

Some progress was made, with

both NAP and the Union offering

reasonable counters; article re-

mained open.

Art. 17, Seniority (ER

13, U 20

–

22)

No change in position;

article re-

mained open.

Art. 18, Rest Periods

(U 23

‒24)

No change in position;

article re-

mained open.

Art 19, Funeral Leave

(U 25)

No change in position;

article re-

mained open.

Art. 20, Leave of Ab-

sence

(ER 14)

No change in position;

article re-

mained open.

Art. 21, Plant Visita-

tion

(ER 15)

No change in position;

article re-

mained open.

NAP never sought to reduce these benefits in its first final offer. It

failed to explain the necessity or timing of this deeper cutback.

Art. 23, Misc. (ER 16) No change in position;

article re-

mained open.

Contract Duration (ER

, U 26)

No change in position;

article re-

mained open.

Job Listings and Pay

Rates (U 27)

Union’s wage proposal to be sub-

sequently submitted; article re-

mained open.

401K Plan (U 28) Union’s 401K proposal to be sub-

sequently submitted; article re-

mained open.

Article Parties’ Positions

Seniority Lists (U 29) No change in position;

article re-

mained open.

Temp. Vacancies (U

30)

No change in position;

article re-

mained open.

Hours of Work (U 31) No change in position;

article re-

mained open.

Plant Studies (U 32) No change in position;

article re-

mained open.

Misc. – Waiver NAP proposed a new article,

Waiver, Entire Agreement and

Severability,

and the Union coun-

tered that the, “general waiver is

null and void with respect to any

mandatory subject of bargaining.”

This article remained open.

Misc. – Respect for

Workers (U 33)

Union proposed a new article, Re-

spect for Workers, which re-

mained open.

Misc. – Health Insur-

ance Coverage (U 35)

Union proposed a health insurance

plan with details to be supplied at

a later session; article remained

open.

Misc. – Walk-Around

Steward (U 36)

Union proposed a full-time walk

around steward; article remained

open.

(Jt. Exhs. 26–28.)

In sum, although the parties made some limited progress on

Art. 15, Non-discrimination, they made little progress on any-

thing else. It is unclear if they discussed their other proposals

beyond reiterating earlier rejections. There is no evidence of the

parties offering counterproposals, even on seemingly de minimis

items. NAP even went in the opposite direction of progress, and

added two newly regressive proposals (i.e., management rights

and waiver proposals).

4. December 9, 2019 meeting

F.M.C.S. Commissioner Ron Morrison attended. The Union

was led by Reeder, Perez, and Brejcha. NAP was led by Pigsley

and Prager. Their discussions are summarized below:

NAP never sought to reduce these benefits in its first final offer. It

failed to explain the necessity or timing of this deeper cutback.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 27

Article Parties’ Positions

Art. 1, Recognition

(ER 1)

The parties reached a tentative

agreement (TA) to exclude shag

drivers from the Unit.

Art. 2, Maint. of

Memb./Dues (ER 2, U

Union proposed an added change,

while the parties’ prior positions

remained unchanged; article re-

mained open.

Art. 3, Mgmt. Rights (U

2, 3)

No change in position;

article re-

mained open.

Art. 4, Grievance Pro-

cedure

(ER 3)

No change in position;

article re-

mained open.

Art. 6, Injury (ER 5) No change in position;

article re-

mained open.

Art. 7, Safety (ER 6, U

4, 5)

No change in position;

article re-

mained open.

Art. 8, Vacation Pro-

ced.

(E 7, U 6

–

No change in position;

article re-

mained open.

Art. 9, Holidays (ER 8,

U 9

–

14)

Union withdrew U 9;

article oth-

erwise remained open.

Art. 10, Hours of Work

(ER 9, U 15

–

17)

No change in position;

article re-

mained open.

Art. 12, Rates of Pay

Provision (ER 10)

No change in position;

article re-

mained open.

Art. 13, Subcontracting

(ER 11)

No change in position;

article re-

mained open.

Art. 14, Extra Work

(ER 12)

No change in position;

article re-

mained open.

Art. 15, Non-discrimi-

nation (U 18, 19)

The parties reached a TA on a re-

vised article.

Art. 17, Seniority (ER

13, U 20

–

22)

No change in position;

article re-

mained open.

Art. 18, Rest Periods

(U 23

‒24)

No change in position;

article re-

mained open.

Art 19, Funeral Leave

(U 25)

Union modified its position;

arti-

cle remained open.

Art. 20, Leave of Ab-

sence

(ER 14)

No change in position;

article re-

mained open.

Art. 21, Plant Visita-

tion

(ER 15)

No change in position;

article re-

mained open.

Art. 23, Misc. (ER 16) No change in position;

article re-

mained open.

Contract Duration (ER

17, U 26)

No change in position;

article re-

mained open.

Article Parties’ Positions

Job Listings and Pay

Rates (U 27)

Union’s wage proposal to be sub-

sequently submitted; article re-

mained open.

401K Plan (U 28) Union’s 401K proposal to be sub-

sequently submitted; article re-

mained open.

Seniority Lists (U 29) No change in position;

article re-

mained open.

Temp. Vacancies (U

30)

No change in position;

article re-

mained open.

Hours of Work (U 31) No change in position;

article re-

mained open.

Plant Studies (U 32) No change in position;

article re-

mained open.

Misc. – Waiver No change in position;

article re-

mained open.

Misc. – Respect for

Workers (U 33)

No change in position;

article re-

mained open.

Misc. – Health Insur-

ance Coverage (U 35)

No change in position;

article re-

mained open.

Misc. – Walk-Around

Steward (U 36)

No change in position;

article re-

mained open.

(Jt. Exhs. 26–29.)

In sum, although the parties resolved Articles 1 and 15, they

made little progress on anything else. Agreements on Articles 1

and 15 were expected, given that the parties only agreed to ex-

clude shag drivers from a Unit where they no longer existed and

agreed to incorporate nondiscrimination legislation that NAP

was already required to follow. The parties left this session with

a whopping 50 open proposals and an ongoing parade of flat re-

jections.

5. December 10, 2019 meeting

The Union was represented by Reeder, Perez, and Brejcha.

NAP was represented by Pigsley and Junker. These negotiations

are summarized below:

Article

Parties’ Positions

Art. 2, Maint. of

Memb./Dues (ER 2, U

No change in position;

article remained open.

Art. 3, Mgmt. Rights (U

2, 3)

No change in position;

article remained open.

Art. 4, Grievance Pro-

cedure (ER 3)

No change in position;

article remained open.

Art. 6, Injury (ER 5) No change in position;

article remained open.

Art. 7, Safety (ER 6, U

4, 5)

No change in position;

article remained open.

Art. 8, Vacation Pro-

ced. (E 7, U 6–8)

No change in position;

article remained open.

Art. 9, Holidays (ER 8,

U 9

–

14)

No change in position;

article remained open.

Art. 10, Hours of Work

(ER 9, U 15

–

17)

No change in position;

article remained open.

Art. 12, Rates of Pay

Provision (ER 10)

NAP proposed dividing Unit jobs

into these categories: light

($12/hour); medium ($13/hour);

medium/heavy ($14/hour); heavy

($15/hour); and super heavy

($16/hour). The Union rejected

this proposal. There were no addi-

tional changes in the parties’ posi-

tions;

article remained open.

Art. 13, Subcontracting

(ER 11)

No change in position;

article remained open.

28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Art. 14, Extra Work

(ER 12)

No change in position;

article remained open.

Art. 17, Seniority (ER

13, U 20

–

22)

No change in position;

article remained open.

Art. 18, Rest Periods

(U 23

‒24)

The parties reached a

TA on a revised article.

Art 19, Funeral Leave

(U 25)

No change in position;

article remained open.

Art. 20, Leave of Ab-

sence

(ER 14)

No change in position;

article remained open.

Art. 21, Plant Visita-

tion

(ER 15)

No change in position;

article remained open.

Art. 23, Misc. (ER 16) No change in position;

article remained open.

Contract Duration (ER

17, U 26)

No change in position;

article remained open.

Job Listings and Pay

Rates (U 27)

Union’s wage proposal

to be later submitted; ar-

ticle remained open.

401K Plan (U 28) Union’s 401K proposal

to be later submitted; ar-

ticle remained open.

Seniority Lists (U 29) No change in position;

article remained open.

Temp. Vacancies (U

30)

No change in position;

article remained open.

Article Parties’ Positions

Hours of Work (U 31) No change in position;

article remained open.

Plant Studies (U 32) No change in position;

article remained open.

Misc. – Waiver No change in position;

article remained open.

Misc. – Respect for

Workers (U 33)

No change in position;

article remained open.

Misc. – Health Insur-

ance Coverage (U 35)

No change in position;

article remained

open.

Misc. – Walk-Around

Steward (U 36)

No change in position;

article remained open.

(Jt. Exhs. 26–30.)

In sum, while the parties reached a TA on the Rest Periods

article, a host of major labor relations issues (e.g., wages, health

insurance, retirement benefits, contract duration, and grievance-

arbitration) remained. Once again, there was little to no accom-

panying discussion on these bargaining subjects.

6. December 17, 2019 meeting

The Union was represented by Schwisow and Perez. NAP was

represented by Pigsley. These negotiations are summarized be-

low:

At this session, the Union reported that is International affiliate

could provide health insurance coverage for the unit.

Article Parties’ Positions

Art. 2, Maint. of

Memb./Dues (ER 2, U

No change in position;

article remained open.

Art. 3, Mgmt. Rights

(U 2, 3)

No change in position;

article remained open.

Art. 4, Grievance Pro-

cedure

(ER 3)

No change in position;

article remained open.

Art. 6, Injury (ER 5) No change in position;

article remained open.

Art. 7, Safety (ER 6, U

4, 5)

No change in position;

article remained open.

Art. 8, Vacation Pro-

ced.

(E 7, U 6

–

No change in position;

article remained open.

Art. 9, Holidays (ER

8, U 9

–

14)

No change in position;

article remained open.

Art. 10, Hours of

Work

(ER 9, U 15

–

17)

No change in position;

article remained open.

Art. 12, Rates of Pay

Provision

(ER 10)

No change in position;

article re-

mained open.

Art. 13, Subcontract-

ing

(ER 11)

No change in position;

article remained open.

Art. 14, Extra Work

(ER 12)

No change in position;

article remained open.

Art. 17, Seniority (ER

13, U 20

–

22)

No change in position;

article remained open.

Art 19, Funeral Leave

(U 25)

No change in position;

article remained open.

Art. 20, Leave of Ab-

sence

(ER 14)

The parties reached a TA;

this article was resolved.

Art. 21, Plant Visita-

tion

(ER 15)

No change in position;

article remained open.

Art. 23, Misc. (ER 16) No change in position;

article remained open.

Contract Duration

(ER 17, U 26)

No change in position;

article remained open.

Job Listings and Pay

Rates (U 27)

Union’s wage proposal to

be later submitted; article

remained open.

401K Plan (U 28) Union’s 401K proposal to

be later submitted; article

remained open.

Seniority Lists (U 29) No change in position;

article remained open.

Temp. Vacancies (U

30)

No change in position;

article remained open.

Hours of Work (U 31) No change in position;

article remained open.

Plant Studies (U 32) No change in position;

article remained open.

Misc. – Waiver No change in position;

article remained open.

Misc. – Respect for

Workers (U 33)

No change in position;

article remained open.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 29

Misc. – Health Insur-

ance Coverage (U 35)

No change in position;

article remained open.

Misc. – Walk-Around

Steward (U 36)

No change in position;

article remained open.

It is notable that NAP presented the Union with an unmarked copy

of its final offer, which appeared as a draft contract. Its version made it

(Jt. Exhs. 26–31.) In sum, this session solely yielded the resolu-

tion of Art. 20, Leave of Absence.

7. January 13, 2020 meeting

The Union was led by Brejcha, while NAP was led by Pigsley.

After some limited discussion, NAP declared impasse and pre-

sented a final offer (the second final offer):

extremely difficult to pinpoint and appreciate its exact CBA modifica-

tions.

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Clause Final Offer

Art. 1,

Recognition

The TA was included; the rest of the article was left unchanged.

Art. 2, Maintenance

of Memb./Dues

ER 2 (i.e., adding that the, “Union agrees that an employee may at any time contact the Company's HR

Department to withdraw from the Union and cease having Union dues withheld from the employee's pay.”)

was added; U 1 and 34 were rejected; and the rest of the article was unchanged.

Art. 3, Mgmt. Rights The status quo was retained; U 2 (i.e., “Employees must pass probation to be eligible for benefits.)” was

incorporated in the

Seniority

article; and U 3, which was not withdrawn, was rejected.

Art. 4, Grievance

Procedure

ER 3 (i.e., deleting grievance steps 3 and 4, and binding arbitration) was implemented, while the rest of the

article was left unchanged.

Art. 5, Bulletin Bd. ER 4 was withdrawn, and the article was left unchanged in accordance with the parties’ prior agreement.

Art. 6, Injury ER 5 (i.e., which deleted the article, including the Union’s right to be notified of workplace injuries and

deaths, and right to inve

stigate) was implemented.

Art. 7,

Safety

ER 6 (i.e., which deleted the entire article) was implemented, while U 4 and 5 were rejected.

Art. 8, Vacation ER 7 (i.e., which deleted additional vacation for 4 and 5 years of service) was implemented, while U 6 through

8, which were not withdrawn, were rejected.

Art. 9, Holidays ER 8 (i.e., which eliminated overtime for holiday hours worked and other holiday benefits) was implemented,

while U 10 through 14, which were not withdrawn, were rejected.

Art. 10, Hours of

Work

ER 9 (i.e., which deleted the entire article, including minimum call-in hours and premium pay for temporary

transfers) was implemented, while U 15 through 17, which were not withdrawn, were rejected.

Art. 11,

Mil. Serv.

The current article was retained,

as per the parties’ prior agreement.

Art. 12, Rates of Pay

Provision

ER 10 (i.e., which provided, inter alia, that the “Union recognizes management's right to increase pay without

the agreement of the Union” and set these rates/job categories: light ($12/hour), medium ($13/hour), me-

dium/heavy ($14/hour), heavy ($15/hour) and super/heavy jobs ($16/hour)) was implemented. The Union

was never given the opportunity to advance a wage proposal, although it had previously stated that it intended

to at a later se

ssion, after lesser issues and non

economic matters were first addressed.

Art. 13, Subcon-

tracting

ER 11 (i.e., which deleted the article and replaced it with the, “Union recognizes management's right to sub-

contract any existing operations”) was implemented.

Art. 14, Extra Work ER 12 (i.e., which deleted the article and replaced it with the, “Union recognizes management's right to assign

extra work opportunities”) was implemented.

Art. 15, Non-dis-

crimination

The TA was implemented.

Art. 16, Co. and Un-

ion Resp.

The status quo article was retained in the final offer.

Art. 17, Seniority Although ER 13 initially proposed deleting the entire article, the final offer only deleted the second paragraph

of the article, which, inter alia, used department seniority for awarding vacancies. The final offer added this

sentence, "employees must pass probation to be eligible for benefits," which the parties had agreed-upon.

The final offer rejected U 20 to 22, which proposed, inter alia, changing the probationary period and bid

procedures, and was not withdrawn.

Art. 18,

Rest Per.

The TA was incorporated in the final offer.

Art 19, Funeral Lv. The status quo article was retained in the final offer; U 25 (i.e., which proposed changing the funeral leave

benefit from 7.5 to 8 hours, and was never withdrawn) was rejected.

Clause

Final Offer

Art. 20, Lv. of Ab-

sence

The TA was implemented.

Art. 21, Plant Visit. ER 15 (i.e., which deleted the Union’s right to visit the plant for, inter alia, grievances and safety, and replaced

it with the, “Union recognizes management's right to allow Union officers and representatives to visit loca-

tions designated by Company mana

gement”) was implemented.

Art. 22, Safety

Equip. and Knives

The TA was implemented.

Art. 23, Misc. ER 16 (i.e., which deleted the employees’ rights to not work over 12 hours per day and replaced it with the

“Union recognizes management's right to assign work in excess of twelve (12) hours a day”) was imple-

mented.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 31

Art. 24, Term of the

Agreement

ER 17 (i.e., which created a 5-year contract) was implemented. The Union never advanced a contract duration

proposal; it stated that it intended to advance a duration proposal in tandem with its wage proposal at a later

bargaining session, after various lesser

issues and non

economic matters were addressed.

Misc. – Job Listings

and Pay Rates

U 27 (i.e., which sought to propose revised job listings and wages at a later session) was rejected.

Misc.

–

401K Plan

U 28 (i.e., which sought to propose the creation of a 401K plan for the unit at a later session) was rejected.

Misc. – Seniority

List

U 29 (i.e., which sought Noah’s Ark’s commitment to provide the Union with a weekly new hire and termi-

nation list, and m

onthly seniority list) was rejected.

Misc. – Temporary

Vacancies

U 30 (i.e., which sought to revise the process for filling temporary vacancies) was rejected.

Misc. – 36-Hour

Workweek

U 31 (i.e., where the Union proposed that full-time employees be guaranteed 36 hours of work per week) was

rejected.

Misc. – Plant Stud-

ies

U 32 (i.e., where the Union proposed conducting studies at the plant) was rejected.

Misc. – Waiver ER 18 (i.e., which added a Waiver, Entire Agreement and Severability article) was implemented, while the

Union’s counterproposal was rejected.

Misc. – Respect for

Workers

U 33 (i.e., which proposed creating a new article legislating respect for workers) was rejected.

Misc. – Health In-

surance Coverage

U 35 (i.e., which proposed granting health insurance coverage to the unit, but, was never discussed because

it was tabled to a later point in bargaining) was rejected.

Misc. – Walk-

Around Steward

U 36 (i.e., which sought to create a full-time, walk-around steward) was rejected.

(Jt. Exhs. 26‒32); see also (GC Exh. 5).

III. ANALYSIS

A. Bad-Faith Bargaining over the Successor CBA

NAP bargained in bad faith over the successor CBA. The Act

requires an employer to meet with a union “at reasonable times,”

and confer in good faith over the bargaining unit’s “wages, hours

and other terms and conditions of employment.” Good faith

means negotiating with the “sincere purpose to find a basis of

agreement,” which includes reasonable efforts to compromise.

Regency Service Carts, Inc., 345 NLRB 671 (2005); Atlanta Hil-

ton & Tower, 271 NLRB 1600, 1603 (1984). Although good

faith does not require capitulation, it does require an obvious and

ongoing effort “to settle differences and arrive at an agreement.”

NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965).

The “mere pretense at negotiations with a completely closed

mind and without a spirit of cooperation” does not suffice (i.e.,

just going through the motions). Id. The Board employs a “total-

ity of the circumstances” test to gauge a good faith, which weighs

these factors: the reasonableness of bargaining demands; delays;

efforts to bypass the union; refusals to provide information; uni-

lateral changes; failing to designate an agent with bargaining au-

thority; withdrawing prior agreements; arbitrary scheduling; and

For example, the combined effect of ER 12’s granting to NAP of

the right “to increase pay without the agreement of the Union,” ER 3’s

deletion of arbitration, the continuation of the no-strike clause, and ER

18’s comprehensive Waiver, Entire Agreement and Severability article,

meant that the Union would be powerless to challenge NAP’s decision

to adjust wages during the contract’s term. This scenario is vastly worse

than having no CBA at all because, absent a contract, the Union would

still be entitled to pre-implementation notice and bargaining over wages.

By way of further example, without a contract, the Union would retain

the right to pre-implementation notice and bargaining over most

other unlawful conduct. Atlanta Hilton & Tower, supra. I find

that several bad-faith factors are present herein.

1. Factor 1—Deeply regressive proposals

The consistently regressive nature of NAP’s proposals

strongly suggests bad faith. Or put another way, NAP’s bargain-

ing demands were unreasonable. First, it demonstrated bad faith

when it sought to slash virtually every benefit and workplace

protection contained in the CBA. Its second final offer deleted,

inter alia, binding arbitration, workplace injury investigation

rights, the whole Safety article, greater leave for senior workers,

premium pay for call-ins, subcontracting protections, extra work

procedures, plant visitation rights, a 12-hour workday cap and,

perhaps most importantly, the Union’s right to negotiate over,

and consent to, mid-contract pay adjustments. It effectively of-

fered the Union a deal that no self-respecting labor organization

could take. Second, it further demonstrated bad faith because,

when taken as a whole, it was really offering the Union a worse

landscape with a contract than it would have possessed without

a contract.

Third, the egregiousness of its position was magni-

fied by its consistent failure to even offer a rationale for its

instances of subcontracting. See generally Fibreboard Corp. v. NLRB,

379 U.S. 203, 215 (1964); Dubuque Packing Co., 303 NLRB 386, 391

(1991), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. denied 511 U.S. 1138

(1994). The combined effect, however, of ER 11’s express grant “to

subcontract any existing operations, ER 3’s elimination of arbitration,

and ER 18’s comprehensive Waiver, Entire Agreement and Severability

article meant that the Union would now be powerless to stop NAP from

subcontracting and eviscerating the entire Unit at will. Without exercis-

ing a great deal of creativity, many additional examples of this principle

could be listed, with each eviscerating the Union in a unique way.

32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

deeply regressive slate of proposals.

See, e.g., Mid-Conti-

nent Concrete, 336 NLRB 258, 260 (2001), enfd. 308 F.3d 859

(8th Cir. 2002) (where a proponent of a regressive proposal fails

to provide a legitimate explanation for such a proposal, it is in-

dicative of a failure to bargain in good faith); John Asquaga’s

Nugget, 298 NLRB 524, 527 (1990), enfd. in pertinent part sub

nom. Sparks Nugget v. NLRB, 968 F.2d 991 (9th Cir. 1992).

Fourth, its second final offer was even more regressive than its

first final offer, which was held to have been made in bad faith;

once again no explanation was offered for this anomaly.

At-

lanta Hilton & Tower, supra; Houston County Electric Cooper-

ative, 285 NLRB 1213, 1214 (1987) (tactics “designed to frus-

trate bargaining” are “an indicium of bad-faith bargaining”).

2. Factor 2—Unwillingness to consider even minor changes

NAP’s ongoing refusal to consider even the Union’s most in-

nocuous proposals, without explanation, reveals bad faith. The

Board considers an employer’s refusal to consider a union’s pro-

posals, without explanation, to be a factor demonstrating bad

faith. Mid-Continent Concrete, supra, 336 NLRB at 260. In this

case, NAP flatly rejected U 1, even though it only sought a mem-

bership list and related data, which was readily available at little

expense and an abundantly reasonable demand, and U 33, even

though the Union only wanted a pro forma pledge about work-

place respect. Agreeing to U 1 and U 33 would have been cost-

free gestures of good will, without any actual labor relations im-

pact; NAP’s rejection of easy giveaways suggested bad faith.

3. Factor 3—General unwillingness to consider most

other union proposals

NAP’s refusal to consider the Union’s other proposals, with-

out discussion, supports a bad-faith finding. Although the Union

made proposals on a range of key Unit issues (e.g., safety (U 4–

5), vacation (U 6–8), holiday (U 9–14), hours of work (U 15–17)

and seniority (U 20–22)), NAP flatly dismissed these issues,

without a single counter. Although NAP was never obligated to

capitulate to any specific demands, its decision to cursorily dis-

miss these proposals, without even a reasonable exploration of

the Union’s goals, its priorities and the potential common

ground, demonstrated bad faith.

4. Factor 4—Adoption of most of its own initial proposals

without modification

NAP’s implementation of so many of its own highly regres-

sive proposals, without any discourse or retreat from its original

position, demonstrated bad faith. NAP repeatedly advanced its

highly regressive slate without alteration, compromise or

As a threshold matter, beyond NAP saying that it was unable to

procure a local Nebraska arbitrator, it wholly failed to justify why it

needed to completely end arbitration in a workplace that rarely had any

arbitrations. It’s also flatly unreasonable that the short supply of Ne-

braska arbitrators meant that NAP needed to reject the arbitral institution

in its entirety. In addition, it never explained why it needed to eliminate

the Union’s subcontracting, health and safety rights, as well as host of

other important procedures, benefits and protections for its employees.

Explanation and discussion is a key element to bargaining, and NAP’s

derogation of these duties smacked of bad faith.

As noted, even though only a year passed between NAP’s first and

second final offers, it newly sought even deeper cutbacks in Arts. 3, 7, 8,

rationale, while summarily rejecting the Union’s ideas on the

same topics. Atlas Guard Service, 237 NLRB 1067, 1079 (1978)

(violation where employer would only reach agreement on its

own terms). This “my way or the highway” approach suggested

bad faith.

5. Factor 5—Unwillingness to wait for the union to make all of

its proposals

NAP’s bad faith was also exhibited by its unwillingness to

even wait for the Union to advance its full slate of proposals.

Throughout bargaining, the Union told NAP that it intended to

advance its wage (U 27), 401K plan (U 28) and health insurance

(U 35) proposals at a later session, after the parties culled through

several more resolvable proposals with lesser economic im-

pact.

NAP’s unwillingness to hold off on declaring an impasse

before it actually heard everything that the Union had to say was

bad faith. Atlanta Hilton & Tower, supra. There was simply no

valid reason why NAP could not wait to at least hear the Union’s

position on these key issues, and gauge if there was any com-

monality in their stances.

6. Factor 6—NAP’s wage proposal

NAP’s pursuit of an unlawful wage proposal further demon-

strated bad faith. Wage proposals (e.g., merit pay proposals) that

do not contain definable objective procedures and criteria for

their application are unlawful. Royal Motor Sales, 329 NLRB

760, 779‒781 (1999), enfd., 2 Fed. Appx. 1 (D.C. Cir.

2001) (promotions and raises based on “ability and perfor-

mance” without defining objective criteria for assessing those

factors and without established maximum amounts for raises too

discretionary); McClatchy Newspapers, 321 NLRB 1386, 1390‒

91 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997) (merit raises

based on performance without defined criteria for evaluations

and parameters for amounts was unlawful); Colorado-

Ute Elec. Assn., 295 NLRB 607, 609‒610 (1989), enf. de-

nied, 939 F.2d 1392 (10th Cir. 1991) (merit raises based on per-

formance without defined criteria for assessment and parameters

for amounts are too discretionary). In the instant case, the wage

proposal that NAP implemented lacked any objective criteria for

assessing the factors that warranted a raise and lacked parameters

for such raises (e.g., it broadly stated, “Union recognizes man-

agement's right to increase pay without the agreement of the Un-

ion” without providing any connected criteria). It was, as a result,

9, 10, 13, 14, 17, 20, and 23, even though its first final offer never previ-

ously sought to amend the same portions of these articles.

“Regressive bargaining . . . is not unlawful in itself; rather it is

unlawful if it is for the purpose of frustrating the possibility of agree-

ment.” U.S. Ecology Corp., 331 NLRB 223, 225 (2000), enfd. 26

Fed.Appx. 435 (6th Cir. 2001), citing McAllister Bros., 312 NLRB 1121

(1993).

Collective bargainers often categorize proposals into economic and

non-economic categories, in an effort to try to first resolve non-economic

matters before tackling more difficult economic ones that might be bar-

gained over in the context of an overall labor relations budget. The Un-

ion’s efforts to try to work through bargaining in this manner was ra-

tional.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 33

too discretionary and unlawful. NAP’s prosecution of this un-

lawful wage proposal further demonstrated bad faith.

7. Synthesis

I find, accordingly, that NAP bargained in bad faith. Public

Service Co. of Oklahoma, 334 NLRB 487, 488‒490 (2001),

enfd. 318 F.3d 1173 (10th Cir. 2003); Mid-Continent Concrete,

supra at 261 (relying upon the several bad-faith factors present

herein). Although NAP argues that its willingness to reach a few

tentative agreements demonstrated good faith, this argument is

misplaced. Its tentative agreements involved “low-hanging

fruit” (e.g., agreeing to leave a bulletin board locked, incorporat-

ing anti-discrimination laws into the contract, moving previously

agreed-upon language around, etc.), which hardly exculpated

NAP’s other instances of bad faith.

B. Unlawful Impasse

NAP’s bad-faith bargaining during contract negotiations pre-

cluded it from reaching a valid impasse with the Union. The

absence of a valid, good-faith impasse estopped NAP from law-

fully implementing its second final offer. In Taft Broadcasting

Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Television Art-

ists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), the Board

held that a valid bargaining impasse occurs when, “good-faith

negotiations have exhausted the prospects of concluding an

agreement.” In Hi-Way Billboards, Inc., 206 NLRB 22, 23

(1973), enf. denied on other grounds, 500 F.2d 181 (5th Cir.

1974), the Board added that:

[A] genuine impasse in negotiations is synonymous with a

deadlock [where] the parties have discussed the … subjects in

good faith, and, despite their best efforts to achieve agreement

with respect to such, neither party is willing to move from its

respective position.

The question of whether a valid impasse exists is a “matter of

judgment,” where these factors are relevant: “bargaining history,

good faith of the parties in negotiations, the length of negotia-

tions, the importance of the issue or issues as to which there is

disagreement, [and] the contemporaneous understanding of the

parties as to the state of negotiations.” Taft Broadcasting Co.,

supra at 478. It is insufficient that the party asserting impasse

believes that it has been reached; there must be a “contempora-

neous understanding” by both that further bargaining would be

futile. Newcor Bay City Div., 345 NLRB 1229, 1238 (2005),

enfd. mem. 219 Fed. Appx. 390 (6th Cir. 2007). The burden of

demonstrating a good-faith impasse rests with the party, who

claims its existence. Serramonte Oldsmobile Inc., 318 NLRB 80,

97 (1995), enfd. in pert. part 86 F.3d 227 (D.C. Cir. 1996). An

employer, consequently, violates §8(a)(5), when it implements

its final bargaining offer in the absence of a valid good-faith im-

passe. Cotter & Co., 331 NLRB 787 (2000).

In the instant case, NAP failed to meet its burden of

This factor supplements the already strong conclusion that NAP

bargained in bad faith, but, is not outcome determinative. Thus, even if

this wage issue were not considered, a bad faith finding would be per-

suasively supported by the several other bad faith factors cited herein.

NAP’s contention that a valid impasse was reached in the face of

its ongoing pattern of bad faith and recent quadfecta of losses on the very

demonstrating the existence of a valid, good-faith impasse. First,

as noted in detail in the bad-faith bargaining analysis above, its

declaration of impasse was preceded by a pattern of bad-faith

negotiations, which precluded the parties from reaching a valid,

good-faith, impasse. Second, the parties’ bargaining history un-

dercuts NAP’s assertion of a good-faith impasse. This is a case,

where NAP previously bargained in bad faith, unlawfully imple-

mented its first final offer, and then had to be forced to return to

the bargaining table via an injunction and contempt action (i.e.,

it really only went back to the table kicking and screaming). Fi-

nally, NAP failed to show that there was a “contemporaneous

understanding” of impasse by both parties. The Union never be-

lieved that the parties were at impasse. And, really, how could

there have been an impasse, when NAP failed to even wait for

the Union to submit its most important proposals on wages,

health insurance and retirement benefits? In sum, NAP failed to

meet its burden of proof on this subject; its contention regarding

the reaching of a valid impasse is a sham.

The absence of a

valid impasse, consequently, rendered NAP’s imposition of the

second final offer unlawful.

CONCLUSIONS OF LAW

1. NAP is an employer engaged in commerce within the

meaning of §2(2), (6), and (7) of the Act.

2. The Union is a §2(5) labor organization.

3. At all times material herein, the Union has been the desig-

nated bargaining representative of NAP’s employees in the fol-

lowing appropriate unit:

All production, maintenance, shag drivers and distribution em-

ployees employed at its Hastings, Nebraska facility, but, ex-

cluding office clerical employees, professional employees,

guards and supervisors, as defined in the Act.

4. At all material times, NAP has recognized the Union as the

exclusive bargaining representative of the employees in the unit

described above.

5. NAP violated §8(a)(5) by:

(a) By failing and refusing to bargain in good faith with the

Union while negotiating a successor agreement.

(b) Implementing a last, best and final offer in negotiations

without reaching a valid, good-faith, bargaining impasse with the

Union.

6. These unfair labor practices affect commerce within the

meaning of §2(6) and (7).

REMEDY

Having found that NAP committed unfair labor practices, it

must be ordered to cease and desist and to take certain affirma-

tive action designed to effectuate the policies of the Act. Specif-

ically, having found that NAP violated §8(a)(5) by refusing to

bargain in good faith, it shall meet, on request, with the Union

and bargain in good faith over the terms and conditions of

same issues before the Board and the U.S. District Court exhibits an al-

most comical level of chutzpah. Chutzpah is eloquently defined as “that

quality enshrined in a man who, having killed his mother and father,

throws himself on the mercy of the court because he is an orphan.” LEO

ROSTEN, THE JOYS OF YIDDISH (1968).

34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

employment of the bargaining unit employees and, if an agree-

ment is reached, embody such agreement in a signed contract. In

addition, having found that NAP unlawfully implemented its fi-

nal offer on January 13, 2020, in the absence of a valid impasse,

NAP is directed to reinstitute the terms and conditions of em-

ployment that existed before its unlawful changes. It shall also

make employees whole for any loss of earnings and other bene-

fits resulting from its unlawful unilateral changes as prescribed

in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444

F.2d 502 (6th Cir. 1971), plus 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 AdvoServ of New Jersey, Inc., 363

NLRB 1324 (2016), NAP shall compensate affected 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 back-

pay award to the appropriate calendar years for each employee.

In light of NAP’s bad-faith bargaining recidivism, it shall hold

a meeting or meetings, scheduled to ensure the widest possible

attendance, at which time the attached notice, Appendix, is to be

read to the employees in both English and Spanish by CEO

Fischel Ziegelheim or, at NAP’s option, by a Board agent in his

presence. Given that Ziegelheim took an active role in bargain-

ing, his presence will promote the message that NAP will now

comply with the Act and bargain in good faith, which will help

assure workers that their §7 activities are not an act of futility.

NAP shall reimburse the Union for its negotiating expenses

that were incurred from November 11, 2019, until such time as

NAP begins bargaining in good faith, upon submission by the

Union of a verified statement of costs and expenses. Visiting

Nurse Services of Western Massachusetts, Inc., 325 NLRB 1125

(1998) (an order requiring a respondent to reimburse a charging

party for negotiation expenses is warranted in cases of unusually

aggravated misconduct, where it may fairly be said that a re-

spondent’s substantial unfair labor practices have infected the

core of the bargaining process to such an extent that their effects

cannot be eliminated by the application of traditional remedies).

Finally, for the reasons set forth in Caterair International, 322

NLRB 64 (1996), an affirmative bargaining order is warranted

herein, as the “traditional, appropriate” remedy for NAP’s un-

lawful failure and refusal to bargain in good faith. Id. at 68. An

affirmative bargaining order “must be justified by a reasoned

analysis that includes an explicit balancing of three considera-

tions: (1) the employees’ §7 rights; (2) whether other purposes

of the Act override the rights of employees to choose their bar-

gaining representatives; and (3) whether alternative remedies are

adequate to remedy the violations of the Act.” Vincent Industrial

Plastics v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000).

Regarding factor 1, an affirmative bargaining order would

vindicate the §7 rights of the Unit employees who have been re-

peatedly denied the benefits of collective bargaining by NAP’s

unlawful conduct. NAP’s surface bargaining, repeated efforts to

frustrate the negotiating process and unlawful implementation of

If no exceptions are filed as provided by §102.46 of the Board’s

Rules and Regulations, the findings, conclusions, and recommended

the second final offer has unlawfully deprived the Unit of the

chance to secure the stability of a collective-bargaining agree-

ment. An affirmative bargaining order, with its attendant bar to

raising a question concerning the Union’s continuing majority

status for a reasonable time, will advance the §7 rights of em-

ployees who have been deprived of the benefits of the collective-

bargaining process, without undue prejudice to the §7 rights of

employees who may oppose continued union representation be-

cause the duration of the order is no longer than is reasonably

necessary to remedy the ill effects of the violation. Factor 1, ac-

cordingly, weighs heavily in favor of an affirmative bargaining

order.

Regarding factor 2, an affirmative bargaining order would ad-

vance the Act’s policies by fostering meaningful collective bar-

gaining and industrial peace. It would remove NAP’s incentive

to delay bargaining and foster greater Union disenfranchisement.

It would ensure that the Union will not be pressured by NAP’s

failure to bargain in good faith to achieve immediate results at

the bargaining table following the Board’s resolution of its unfair

labor practice charges and issuance of a cease-and-desist order.

Regarding factor 3, a cease-and-desist order, in isolation,

would be inadequate to remedy NAP’s unlawful surface bargain-

ing because it would permit a challenge to the Union’s majority

status before the taint of the unlawful conduct has dissipated, and

before the employees have had a reasonable time to regroup and

bargain through their representative in an effort to reach a suc-

cessor collective-bargaining agreement. Such a result would be

particularly unjust in the instant case because the unlawful sur-

face bargaining has caused an undue and prolonged delay in the

parties’ progress toward achieving a successor agreement. Given

that Unit employees may errantly blame the Union, at least in

part, for the present situation, an affirmative bargaining order

would insulate the Union from a consequence that NAP has sin-

glehandedly caused, and, ideally, prevent disaffection on this ba-

sis for a sufficient period. Or put another way, an affirmative

bargaining order is necessary to prevent NAP from benefiting

from the fruits of its unlawful actions. The imposition of a bar-

gaining order would signal to employees that their rights guar-

anteed under the Act will be protected. This circumstance out-

weighs the temporary impact the affirmative bargaining order

will have on the rights of employees, who may oppose continued

union representation.

For all the foregoing reasons, an affirmative bargaining order

with its temporary decertification bar is necessary to fully rem-

edy NAP’s bad-faith surface bargaining in this case.

On these findings of fact and conclusions of law, and on the

entire record, I issue the following recommended

ORDER

Noah’s Ark Processors, LLC d/b/a WR Reserve its officers,

agents, successors, and assigns, shall

1. Cease and desist from

(a) Bargaining in bad faith with the Union while negotiating

a successor agreement.

Order shall, as provided in §102.48 of the Rules, be adopted by the Board

and all objections to them shall be deemed waived for all purposes.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE 35

(b) Implementing a last, best and final offer in negotiations

without reaching a valid, good-faith bargaining impasse with the

Union.

or coercing employees in the exercise of the rights guaranteed by

§7 of the Act.

2. Take the following affirmative action necessary to effectu-

ate the Act’s policies

(a) On request, bargain with the Union as the exclusive col-

lective-bargaining representative of the employees in this appro-

priate unit concerning terms and conditions of employment and,

if an understanding is reached, embody it in a signed agreement:

All production, maintenance, shag drivers and distribution em-

ployees employed at the Hastings, Nebraska facility, but, ex-

cluding office clerical employees, professional employees,

guards and supervisors, as defined in the Act.

(b) Rescind the changes in the terms and conditions of em-

ployment for its unit employees, which were unilaterally imple-

mented under the January 13, 2020 final offer.

unit for any loss of earnings and benefits resulting from imple-

menting the January 13, 2020 final offer in the absence of a valid

impasse, as described in the remedy section.

(d) Compensate affected employees for the adverse tax con-

sequences, if any, of receiving a lumpsum awards and file with

the Regional Director for Region 14, within 21 days of the date

the amount of backpay liability is fixed, either by agreement or

Board order, a report allocating the backpay award to the appro-

priate calendar years for each employee.

(e) Compensate the Union for all bargaining expenses in-

curred, or to be incurred, from November 11, 2019, through the

date that good-faith negotiations ultimately begin. Upon receipt

of a verified statement of costs and expenses from the Union,

NAP shall promptly submit reimbursement to the compliance of-

ficer for Region 14 of the National Labor Relations Board, who

will document its receipt and forward payment to the Union.

(f) Preserve and, within 14 days of a request, or such addi-

tional 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 elec-

tronic form, necessary to analyze the amount of backpay due un-

der the terms of the Board’s order.

(g) Within 14 days after service by the Region, post at its

Hastings, Nebraska facility copies of the attached notice marked

“Appendix.”

Copies of the notice, on forms provided by the

Regional Director for Region 14, after being signed by the Re-

spondent’s authorized representative, shall be posted by the Re-

spondent and maintained for 60 consecutive days in conspicuous

places, including all places where notices to employees are cus-

tomarily posted. In addition to physical posting of paper notices,

notices shall be distributed electronically, such as by email,

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

posting on an intranet or an internet site, and/or other electronic

means, if the Respondent customarily communicates with its em-

ployees 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,

it shall duplicate and mail, at its own expense, a copy of the no-

tice to all current employees and former employees employed by

the Respondent at any time since November 11, 2019.

(h) Within 14 days after service by the Region, hold a meeting

or meetings, scheduled to ensure the widest possible attendance,

at which the attached notice, Appendix, is to be read to the em-

ployees in both English and Spanish by CEO Fischel Ziegelheim

or, at NAP’s option, by a Board agent in his presence.

(i) Within 21 days after service by the Region, file with the

Regional Director for Region 14 a sworn certification of a re-

sponsible official on a form provided by the Region attesting to

the steps the Respondent has taken to comply.

Dated Washington, D.C. May 27, 2021

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT bargain in bad faith with the Union while nego-

tiating a successor agreement.

WE WILL NOT implement a last, best and final offer in negoti-

ations without reaching a valid, good-faith, bargaining impasse

with the Union.

WE WILL NOT in any like or related manner interfere with, re-

strain or coerce you in the exercise of the rights guaranteed you

by Section 7 of the Act.

WE WILL, on request, bargain with the Union as the exclusive

collective-bargaining representative of the employees in this ap-

propriate unit concerning terms and conditions of employment

and, if an understanding is reached, embody it in a signed agree-

ment:

All production, maintenance, shag drivers and distribution em-

ployees employed at the Hastings, Nebraska facility, but,

United States Court of Appeals Enforcing an Order of the National Labor

Relations Board.”

36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

excluding office clerical employees, professional employees,

guards and supervisors, as defined in the Act.

WE WILL rescind the changes in the terms and conditions of

employment for our unit employees, which were unilaterally im-

plemented under our January 13, 2020 final offer.

WE WILL make whole, with interest, eligible employees in the

above-described unit for any loss of earnings and benefits caused

by the unlawful imposition of our January 13, 2020 final offer.

WE WILL compensate unit employees for the adverse tax con-

sequences, if any, of receiving a lumpsum award associated with

our unlawful implementation of our January 13, 2020 final offer,

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 award to the ap-

propriate calendar years for each employee.

WE WILL reimburse the Union for their negotiating expenses

from November 11, 2019, until such time as we begin bargaining

in good faith, upon submission by the Union of a verified state-

ment of costs and expenses.

NOAH’S ARK PROCESSORS, LLC D/B/A WR RESERVE

The Administrative Law Judge’s decision can be found at

http://www.nlrb.gov/case/14-CA-255658 or by using the QR

code below. Alternatively, you can obtain a copy of the decision

from the Executive Secretary, National Labor Relations Board,

1015 Half Street, S.E., Washington, D.C. 20570, or by calling

(202) 273–1940.