NLRB announces enhanced remedies in cases of repeat or egregious violations of the NLRA

In its continuing effort to impose enhanced remedies for violations of the NLRA by employers, the NLRB announced that it has expanded the remedies available in the event of repeat or egregious violations of the NLRA, which the NLRB has summarized in its press release, as follows:

  • Adding an Explanation of Rights to the remedial order that informs employees of their rights in a more comprehensive manner;
  • Requiring a reading and distribution of the Notice and any Explanation of Rights to employees, including potentially requiring supervisors or particular officials involved in the violations to participate in or be present for the reading and/or allowing presence of a union agent during the reading;
  • Mailing the Notice and any Explanation of Rights to the employees’ homes;
  • Requiring a person who bears significant responsibility in the Respondent’s organization to sign the Notice;
  • Publication of the Notice in local publications of broad circulation and local appeal;
  • Requiring that the Notice/Explanation be posted for an extended period of time;
  • Visitation requirement, permitting representatives of the Board to inspect the Respondent’s bulletin boards and records to determine and secure compliance with the Board’s order;
  • Reimbursement of Union’s bargaining expenses, including making whole any employees who lost wages by attending bargaining sessions.

This development was implemented by the Board in its recent decision entitled Noah’s Ark Processors, LLC D/B/A WR Reserve, which the Board summarized in its press release, as follows:

Applying these principles to the facts of the case, the Board upheld the Administrative Law Judge’s decision that the employer bargained in bad faith with the union and determined that—because the employer had also previously been found in violation of the Act, as well as in contempt of a U.S. District Court injunction ordering it to bargain in good faith—the employer’s open hostility toward its responsibilities under Act warranted a broad order and appropriate remedies. In addition to traditional remedies for refusal to bargain, such as rescission of unilateral changes and make-whole relief, and in addition to additional remedies ordered by the judge—including reimbursement of bargaining expenses and a reading of the Board’s notice to employees—the Board ordered: the addition of an Explanation of Rights to the remedial order, a bargaining schedule with written progress reports, reimbursement of the union’s bargaining expenses and earnings lost by individual employees while attending bargaining sessions, extended posting of the Notice and Explanation of Rights for one year, electronic distribution of the Notice and Explanation of Rights, mailing of the Notice and Explanation of Rights, reading of the Notice and Explanation of Rights in English and Spanish by the Respondent’s CEO or by a Board agent in the CEO’s presence, union presence at the Notice reading upon request, distribution of the Notice and Explanation of Rights to employees at the reading, and authorizing a Board agent to enter the Respondent’s facility for a period of one year at reasonable times for the purpose of determining whether the Respondent is in compliance with its posting and mailing requirements under the Board’s order.

As previously noted, the Board’s continuing efforts to expand remedies available under the NLRA is likely to draw continued litigation and appeals.

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Seventh Circuit rejects request not to use preferred pronouns as religious accommodation

In Kluge v. Brownsburg Community School Corp., the Fifth Circuit rejected as unreasonable an employee’s refusal to use preferred pronouns as a religious accommodation under Title VII. The employee claimed that his religious beliefs required him to use instead pronouns associated with gender as recorded on birth certificates. Several other employees joined him in the request for religious accommodation from use of pronouns that, in their minds, were inconsistent with gender as recorded on birth certificates. The Fifth Circuit held that accommodating such a request would have constituted an undue hardship.

The employee and employer had attempted, unsuccessfully, a prior middle-ground of allowing him to use only last names, but this was also found to be inappropriate as his use of last names was targeted at individuals who preferred pronouns that he believed were not consistent with birth records. The court agreed that was stigmatizing and humiliating and, therefore, disruptive to the employer’s business. Indeed, the use of last names quickly became, according to the Court, so disruptive and offensive that others who witnessed it complained as well. He then attempted to call everyone by last name only, which, according to the Court, only caused more disruption and offense in the workplace.

The employee then refused to resign saying that continuing his employment was, he believed, part of a religious ministry that he was accomplishing at the non-religious employer’s workplace. Disciplinary action commenced, resulting in his termination, which was upheld by the Court.

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