This National Labor Relations Board (NLRB) decision concerns the appropriate remedy for an employer’s refusal to bargain with a certified union, specifically when that refusal is intended to challenge the union's certification.
The Board had previously issued a Decision and Order finding that Longmont United Hospital (the Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to recognize and bargain with the National Nurses Organizing Committee/National Nurses United (the Union). The Board ordered the Respondent to bargain with the Union. However, the issue of whether the Board should grant the General Counsel's request to overrule Ex-Cell-O Corp., 185 NLRB 107 (1970), and adopt a remedy requiring employers to compensate employees for the lost opportunity to engage in collective bargaining in test-of-certification cases, was severed and retained for further consideration.
In this supplemental decision, a majority of the Board (Members Prouty, Murphy, and Mayer) declined to depart from its established remedial practice for employers who defend their refusal to bargain by challenging a union's certification. The majority reasoned that an employer can only obtain judicial review of a Board certification by refusing to bargain, as certifications are not directly reviewable by courts. Imposing compensatory damages in such cases would interfere with this established scheme for judicial review and impermissibly burden the right to seek such review. The majority emphasized that the Act does not authorize the Board to compel parties to reach an agreement, and therefore, ordering an employer to pay damages in lieu of reaching an agreement would be speculative and hinder, rather than encourage, collective bargaining. Consequently, the Board majority affirmed its holding in Ex-Cell-O Corp. and denied the General Counsel's request to overrule it.
Member Prouty dissented, arguing that Ex-Cell-O Corp. was wrongly decided and unduly restricts the Board's remedial authority in test-of-certification cases. He contended that refusals to bargain, even those made to "test" certification, inflict real harm on a union's and employees' collective bargaining rights. Member Prouty advocated for overruling Ex-Cell-O Corp. and implementing a broader range of remedies, including non-monetary measures to protect employees' rights to be represented, requiring adherence to a bargaining schedule and progress reports, and mandating extended posting of notices and meetings to inform employees about the employer's unlawful conduct. Additionally, he proposed requiring employers to compensate unions for reasonable monetary expenditures incurred in maintaining their relationship with employees due to the delay. Crucially, Member Prouty argued for allowing the General Counsel to prove employees suffered remediable economic harm resulting from the employer's unlawful refusal to bargain, seeking to make employees whole for losses quantifiable as a result of the bargaining delay. He believed these expanded remedies would better restore the status quo ante and encourage timely collective bargaining.
Significant Cases Cited
- Ex-Cell-O Corp., 185 NLRB 107 (1970): This case established the Board's precedent that it lacks the authority to order compensatory damages for lost bargaining opportunities in refusal-to-bargain cases, as such a remedy is speculative and beyond its statutory power.
- American Federation of Labor v. NLRB, 308 U.S. 401 (1940): The Supreme Court held that Board-issued certifications are not directly reviewable by courts, but judicial review is available when an unfair labor practice order is based on a certification.
- H.K. Porter v. NLRB, 397 U.S. 99 (1970): The Supreme Court ruled that the Board cannot compel parties to agree to a specific contract term, even in an unfair labor practice remedy.
- NLRB v. Tiidee Products, Inc., 426 F.2d 1243 (1970): This case involved a make-whole remedy for past damages in a refusal-to-bargain case, with the court remanding to determine what parties would have agreed to, distinguishing it from compelling future contract terms.
- Royal Plating & Polishing Co., 148 NLRB 545 (1964): This decision emphasizes the Board's obligation to issue remedies that restore the situation as nearly as possible to what it would have been absent the unfair labor practice.
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