Nat'l Labor Relations Bd. v. Noah's Ark Processors, LLC
| Decision Date | 22 April 2022 |
| Docket Number | 21-2188 |
| Citation | 31 F.4th 1097 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner United Food & Commercial Workers’ Union, Local No. 293, Intervenor v. NOAH'S ARK PROCESSORS, LLC, doing business as WR, Reserve Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ruth E. Burdick, Deputy Assistant General Counsel, National Labor Relations Board, Washington, DC, William B. Cowen, National Labor Relations Board, Region 17, Overland Park, KS, Barbara Ann Sheehy, National Labor Relations Board, Appellate and Supreme Court Litigation Branch, Washington, DC, for Petitioner.
Matthew J. Ginsburg, AFL-CIO United Food & Commercial Workers, Washington, DC, Nathan A. Kakazu, Frederick Zarate, Blake & Uhlig, Kansas City, KS, for Intervenor.
Jerry Lee Pigsley, Woods & Aitken, Lincoln, NE, for Respondent.
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
Noah's Ark Processors, LLC ("Noah's Ark"), is a limited liability company that purchased meat processing facilities in Hastings, Nebraska in 2015. After the purchase, Noah's Ark continued to operate the facilities under a five-year collective bargaining agreement ("CBA") with United Food and Commercial Workers Local Union No. 293 (the "Union"), representing a largely Spanish speaking 250-300 employee bargaining unit. The CBA expired in January 2018 with the parties engaged in what became lengthy, unsuccessful negotiations for a new contract. The Union filed an unfair labor practice charge in March 2018 alleging failure to bargain in good faith. That charge was settled in June, but the Union filed a new charge in July, and additional charges in the ensuing months, alleging failure to bargain in good faith and other unlawful anti-Union activities. The General Counsel of the National Labor Relations Board (the "Board") filed a Complaint, and the consolidated charges were tried before an Administrative Law Judge ("ALJ") in March 2019.
Largely adopting the ALJ's findings, the Board entered an order that Noah's Ark committed multiple unfair labor practice violations of Sections 8(a)(1) and (5) of the National Labor Relations Act (the "NLRA"), 29 U.S.C. §§ 158(a)(1) and (5), including failure to bargain in good faith for a successor CBA, withholding relevant bargaining information, and unlawfully declaring an impasse and unilaterally implementing altered terms and conditions of employment.1 With one dissenting member, the Board also concluded that Noah's Ark unlawfully threatened and terminated ten workers who engaged in an unauthorized work stoppage on March 27, 2018. The Board imposed the ALJ's recommended remedies, including a special remedy of notice reading, along with additional remedies of an affirmative bargaining order and repayment of the union's negotiation expenses. Noah's Ark Processors, Inc. d/b/a WR Reserve, 370 N.L.R.B. No. 74 (Jan. 27, 2021).
The Board petitions to enforce its order under Section 10(e), 29 U.S.C. § 160(e). In opposition, Noah's Ark argues (i) the dissenting board member correctly concluded that the ten employees terminated for an unauthorized work stoppage were not engaged in collective activity protected by Section 7 and therefore the terminations did not violate Section 8(a)(1); (ii) Noah's Ark did not violate Section 8(a)(5) in unilaterally implementing portions of its last, best, and final offer because the parties had bargained to an impasse; and (iii) the Board imposed unwarranted extraordinary remedies, as the dissenting member concluded.2 After petitioning for enforcement, the Board moved for temporary injunctive relief under Section 10(e). "We will enforce the Board's order if the Board has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole ... even if we might have reached a different decision on de novo review." Bolivar-Tees, Inc., 551 F.3d at 727 (quotations omitted). Applying this standard, we enforce the Board's order in full and deny the Section 10(e) motion as moot.
In November 2017, the Union sent Noah's Ark multiple letters requesting relevant bargaining information and attempting to schedule sessions to negotiate a successor CBA. Noah's Ark did not respond, and the existing CBA expired January 28, 2018. Noah's Ark first met with the Union in March 2018; the ten employees’ unauthorized work stoppage occurred on March 27, five days later. Noah's Ark continued to withhold requested information and did not provide an initial contract proposal until May. After informal settlement of the Union's initial unfair labor practices charge, there were intermittent meetings throughout 2018, but Noah's Ark continued to withhold information, rejected Union proposals without comment, and sent representatives who lacked decision making authority to the scheduled bargaining sessions. In January 2019, Noah's Ark presented a last, best, and final offer, declared an impasse, and unilaterally implemented its terms.
The Union ultimately filed five unfair labor practices charges, which the Board's Regional Counsel consolidated into a single amended complaint filed on February 22, 2019. With these administrative proceedings pending, the Union sued for and was granted a Section 10(j) temporary injunction to restore the status quo ante in which the district court ordered Noah's Ark to rehire the ten employees terminated after the March 2018 work stoppage. Perez v. Noah's Ark Processors, LLC, No. 4:19-CV-3016, 2019 WL 2076793 (D. Neb. May 10, 2019). The court subsequently held Noah's Ark in contempt for violating this injunction by its ongoing failure to negotiate in good faith. Sawyer v. Noah's Ark Processors, LLC, No. 4:19-CV-3016, 2019 WL 5268639 (D. Neb. Oct. 17, 2019).
After a five-day hearing, the ALJ issued a decision and recommended order, finding that Noah's Ark committed multiple Section 8(a)(1) and (5) violations including unjustifiably declaring an impasse and unilaterally implementing its final offer in January 2019. The ALJ also found the March 27, 2018 work stoppage was NLRA-protected collective activity and therefore Noah's Ark violated Section 8(a)(1) when it terminated ten participants. The ALJ recommended remedies that included orders to cease and desist from further NLRA violations, repay improperly withheld union dues, rescind the unilateral changes, and make whole the terminated employees. The ALJ also imposed an affirmative bargaining schedule of a "minimum of 24 hours per month ... until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining," and a special remedy of a notice reading "to reassure employees" that Noah's Ark is bound by the NLRA.
A three-member panel of the NLRB affirmed most of the ALJ's findings and conclusions. The Board focused its opinion on the March 27, 2018 work stoppage, analyzing whether this "wildcat strike" was protected collective activity under the Board's decision in Silver State Disposal Service, 326 N.L.R.B. 84 (1998), an issue the ALJ did not address. Over Member Emanuel's dissent, the majority ruled this was Section 7 protected activity; thus, Noah's Ark's terminations violated Section 8(a)(1). The majority largely adopted the ALJ's remedies, including the special remedy of a notice reading, and it imposed special remedies of an affirmative bargaining order and a requirement that Noah's Ark repay the Union's negotiating expenses between March 22, 2018 and January 25, 2019. Member Emanuel dissented from the special remedies of notice reading and reimbursement of bargaining expenses.
On the morning of March 27, 2018, five days after the parties’ first bargaining session, approximately twenty workers gathered in Noah's Ark's cafeteria rather than starting their shift on the production line. They asked to speak with their supervisor, seeking answers about rumors that Noah's Ark was paying newer workers higher wages than senior workers, in violation of the holdover CBA's pay scale.3 Operations Manager Paul Hernandez met with the workers. Bilingual Union Steward Guadalupe Ortiz spoke for the workers. Hernandez told the workers "you guys either go to work, leave now, or you're terminated." Some returned to work. Ten went to the parking lot, where plant manager Mike Helzer told them they could work the rest of their shift and discuss their concerns with him at the end of the day. The workers refused to return to work. Helzer threatened to call the police and Hernandez asked them to turn in their ID badges. Some workers went to the Union hall and filed a grievance, which the Union supported. Three days later, Noah's Ark submitted separation notices for the ten employees, citing voluntary resignation ("Job Abandonment") and involuntary termination ("Violation of company policy") as reasons for separation.
Citing Atlantic Scaffolding Co., 356 N.L.R.B. 835 (2011), a case involving a work stoppage by employees not represented by a union , as "directly on point," the ALJ found that the ten employees’ "concerted work stoppage to protest wage disparities and demand increases to address the disparities" was protected activity, and therefore Noah's Ark violated Section 8(a)(1) when it threatened and then terminated them. In its exceptions to the ALJ's finding, Noah's Ark proffered three alternative arguments, two of which are briefly repeated in opposing the Board's Application to Enforce. Those two arguments require little discussion.
First, Noah's Ark argues the workers were not fired at all; they voluntarily abandoned their jobs. However, substantial evidence supports the Board's finding the workers were fired. Noah's Ark managers told the employees to go home if they would not work, required them to turn in their ID badges, and threatened to call the police if they did not leave. "It is sufficient if the words or action of the employer would logically lead a prudent person to believe his or her tenure has...
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NLRB Follows The General Counsel's Lead: Enhanced Remedies May Now Apply To Bad-Faith Bargaining
...part. 2. These remedies were upheld by the Board in 2021. See Noah's Ark Processors, LLC d/b/a WR Reserve, 370 NLRB No. 74 (2021), enfd. 31 F.4th 1097 (8th Cir. 3. Kaplan did agree that the employer should have to pay the bargaining expenses of the union. Kaplan disagreed, however, with the......