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:
Police concluded that allegations that actor Kim Soo-hyun dated late actor Kim Sae-ron when she was a minor were false and partially based on AI-fabricated material, according to an arrest warrant...