On August 26, the NAM filed an amicus brief urging the National Labor Relations Board to reject General Counsel Jennifer Abruzzo’s radical proposal to overturn longstanding and established precedent by awarding prospective, compensatory make-whole relief for the period when an employer refuses to bargain while challenging a union’s certification in court. The traditional remedy for cases where an employer unlawfully refuses to bargain with the chosen bargaining representative of its employees is a bargaining order whereby the NLRB commands the employer to stop its unlawful refusal and bargain with the representative. Over 50 years ago, in Ex-Cell-O Corp., the Board explicitly rejected make-whole relief—in that case raises for employees—as too speculative. The Board concluded that compelling employers “to accede to terms never mutually established by the parties” would violate the plain language of the National Labor Relations Act and Supreme Court precedent.
In this case, Arrmaz Prods. And Internat’l Chem. Workers Union, GC Abruzzo asked the Board to “make the bargaining unit employees whole for the lost opportunity to engage in collective bargaining” during the period when the employer refuses to bargain in order to test the union’s certification in the courts.” As the NAM’s brief explains, this inherently speculative and arbitrary remedy would chill the protected rights of every employer to petition a court to review certification of a union as the exclusive representative of the employer’s employees. Further, section 8(d) of the National Labor Relations Act flatly states that the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.” Here, the proposed make-whole remedy cannot be calculated without presuming an agreement that the Board is not entitled to presume or to compel. Employers and employees alike rely on the Board to maintain labor relations stability. Such reliance interests are severely undermined when longstanding and established precedents are overturned without adequate justification, as is threatened in this case.
On December 8, 2022, the Board held that respondent ArrMaz Products, Inc. violated the National Labor Relations Act by refusing "to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit." The Board did not address make-whole relief. The Board has severed this issue and plans to issue a supplemental decision regarding a make-whole remedy at a later date.