An employer that refuses to bargain with a union violates NLRA §8(a)(5) — the duty to bargain in good faith. The only remedy available to a union faced with an employer’s 8(a)(5) violation is a bargaining order. But §8(a)(5) already requires the parties to bargain — a bargaining order remedies nothing. Capitalizing on the impotence of the remedy, companies like Starbucks strategically refuse to bargain with newly certified unions. This causes employees to lose wages and benefits that would have derived from a collective bargaining agreement, reduces union support and momentum, and multiplies attorney’s fees from resulting litigation.
In 2021, NLRB General Counsel Jennifer Abruzzo called on the Board to overturn the decision that established this ineffectual remedy, Ex-Cell-O v. NLRB. She argued the remedy for a §8(a)(5) violation should be a “make-whole” order, described in detail below. The Board did not act on the General Counsel’s recommendation.
Today, Board remedies — like all administrative remedies — face a new potential hurdle thanks to the Supreme Court’s holding in SEC v. Jarkesy: the Seventh Amendment. But this post argues that reasoning from a recent Ninth Circuit case instructs that overturning Ex-Cell-O would not violate the Seventh Amendment.
The rule in Ex-Cell-O stems from the 1970 Supreme Court case H.K. Porter v. NLRB. In H.K. Porter, the Court held that it exceeded the Board’s authority and violated §8(d) to impose a substantive contractual term upon...
President Donald Trump marked his first year back in office by presiding over a meandering, nearly two-hour-long press briefing to recount his accomplishments, repeating many false claims he made ...