NLRB Declines to Overrule Ex‑Cell‑O: What Employers Should Know

In a closely watched development, the National Labor Relations Board has declined to overrule Ex‑Cell‑O Corp., 185 NLRB 107 (1970), preserving a 56‑year‑old framework that limits remedies when an employer refuses to bargain to test a union’s certification and an appeals court ultimately upholds the certification. The decision came in the Board’s ruling in Longmont United Hospital on February 26, 2026.

The Decision: Board Declines Request to Expand Remedies

In Longmont United Hospital, former NLRB General Counsel Jennifer Abruzzo urged the Board to overrule Ex‑Cell‑O and authorize a new monetary remedy requiring employers to compensate employees for the “lost opportunity to bargain,” a significant expansion that would have imposed economic damages in test‑of‑certification scenarios where an employer lawfully refuses to bargain to obtain judicial review of the agency’s certification of a union.¹ The Board majority comprised two Trump appointees, Members James Murphy and Scott Mayer, who rejected the attempt and reaffirmed Ex‑Cell‑O.²

Why the Board Declined to Change the Law

The Board offered four reasons for maintaining Ex‑Cell‑O:

1. Statutory structure: The NLRA’s scheme contemplates that employers must refuse to bargain to obtain judicial review of certification; imposing damages would disrupt that structure.
2. Section 8(d) limits: The NLRA bars the Board from imposing substantive contract terms, and monetary remedies would indirectly do just that.
3. Speculative damages: Calculating hypothetical lost wages or benefits would require speculation about what bargaining would have produced.
4. Impact on bargaining: Monetary remedies could improperly insert the Board into economic aspects of collective bargaining, undermining rather than supporting the process.

Member Prouty, the sole remaining Biden appointee, dissented, advocating for both monetary and non‑monetary remedies, including compensation for “any other provable, reasonably quantifiable economic harm” resulting from an employer’s unlawful refusal to bargain.³

What This Means for Employers

1. Potential increase in certification challenges

Because employers face no compensatory exposure for “the lost opportunity to bargain” some may be more inclined to pursue test‑of‑certification strategies, especially in close elections or in high employee turnover environments.

2. Firmer “good‑faith bargaining” positions

For employers that do engage in bargaining, the absence of make‑whole remedies may encourage more assertive bargaining positions without fear that extended negotiations could be converted into monetary liability.

3. Future reconsideration remains possible

Although this Board declined to overrule Ex‑Cell‑O, observers note that a future majority could take up the issue again and agree with the dissent.

Further, the continued viability of Ex-Cell-O does not change the fact that an employer acts at its peril if, in addition to refusing to sit down and bargain with the union, it implements unilateral changes to employees’ terms and conditions of employment while challenging a union’s certification.⁴ If the reviewing court upholds the certification, the employer faces a rollback of such changes and/or a more difficult bargaining position.

Footnotes

1 374 N.L.R.B. No. 52 (Feb. 26, 2026).

2 The Board’s two Republican members recently signaled in Lodi Volunteer Ambulance Rescue Squad, Inc. that they will not disturb major Biden‑Board decisions without a three‑member majority but, as in this case, have shown a willingness to reject the former GC’s agenda through cases that are just now coming before the Board.

3 Id.

4 Id. at n. 3.