NLRB Updates
NLRB Reaffirms Limited Remedies under Ex-Cell-O
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APPLIES TO All Employers Subject to the NLRA |
EFFECTIVE FEB 26, 2026 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
In Longmont United Hospital, the National Labor Relations Board (NLRB) declined to expand a 56-year-old rule limiting remedies for failure to bargain when an employer refuses to bargain in order to initiate a test-of-certification. In 1970 in Ex-Cell-O, an employer refused to bargain with a union so as to initiate a challenge to the certification of the bargaining agreement. Refusal to bargain is the first step in a procedural mechanism through which employers must challenge union certifications. There, employees sought compensatory damages for a failure to bargain. The NLRB previously said that it does not have the authority to make such an award, it would chill negotiations, and damages would be too speculative to quantify.
Recently, in Longmont United Hospital, the General Counsel requested the Board to “adopt a remedy that would require employers to compensate employees ‘for the lost opportunity to engage in collective bargaining at the time and in the manner contemplated by the Act’ in test-of-certification cases.” However, the Board declined to stray from the Ex-Cell-O decision, refusing to implement damages where an employer has defended its refusal to bargain on grounds that it is challenging the union’s certification. The Board referred to the same reasoning as was presented in Ex-Cell-O as the reason for denial.
Although this ruling may keep standards to challenge certifications at status quo, it is a good reminder to review the process to challenge union certifications with legal counsel before taking action.
Action Items
- Review potential union certification challenges with legal counsel.
New NLRB Chairman Appointed
On March 27, 2026, President Trump designated Board Member James R. Murphy as Chairman of the NLRB. Mr. Murphy returned to the Board in January, bringing over 47 years of NLRB service. His term will end December 16, 2027. Although Mr. Murphy’s appointment fills an existing gap at the NLRB, no significant changes are expected to immediately result.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase