NLRB Declines to Expand Remedies in Refusal-to-Bargain Cases

By Jennifer Dunn, R. Jason Patterson and Karen Villagomez - Franczek P.C.

March 5, 2026

On February 26, 2026, the National Labor Relations Board (NLRB) issued a decision in Longmont United Hospital declining to expand the remedies available in certain refusal-to-bargain cases. The Board reaffirmed its 1970 decision in Ex-Cell-O Corp., confirming that employers who refuse to bargain in order to challenge a union’s certification will not be required to pay employees for wages or benefits they might have received had bargaining begun earlier. The decision ends a Biden-era effort to broaden the Board’s authority in these cases.

Why This Issue Matters

Under the National Labor Relations Act (NLRA), employers cannot directly appeal the NLRB’s certification of a union in federal court. Instead, an employer must refuse to bargain with the union, triggering an unfair labor practice charge and eventual review of the union’s certification before the NLRB and ultimately in federal court.

For decades, the remedy in these cases has been limited. When an employer refused to bargain to challenge the certification and ultimately lost, the NLRB ordered the employer to cease and desist from the unlawful conduct, bargain with the union, and to post a notice informing employees of their rights under the NLRA. The Board did not require the employer to pay employees for the wages or benefits they might have gained if bargaining had started immediately following the certification upon request by the union. In Longmont, the Board was asked to reconsider that approach.

The Board’s Decision

In a 2–1 decision, the NLRB declined to expand the remedies available in refusal to bargain cases. The majority explained that the actual refusal to bargain is the only way an employer can obtain judicial review of the union’s certification as the exclusive bargaining representative. Imposing monetary penalties for taking that step, the NLRB found, could interfere with an employer’s ability to seek review.

The majority also noted that the NLRA does not permit the NLRB to force parties to agree to specific contract terms. Requiring employers to pay employees based on what might have been negotiated in a first contract would require the NLRB to speculate regarding the terms to which the parties would have agreed. The NLRB concluded that this type of remedy exceeds its authority under the NLRA.

As a result, the long-standing rule remains in place: if an employer unsuccessfully challenges a certification, it will be ordered to cease and desist from the unlawful conduct, to bargain, and post a notice, but it will not be subject to a back pay order based on a hypothetical agreement.

 Practical Impact for Employers

This decision confirms that employers may continue to use the established refusal-to-bargain unfair labor practice process to seek court review of union certifications without facing retroactive payments based on what a first contract might have included.

If a court ultimately upholds the certification, the employer will be required to cease and desist from the unlawful conduct, bargain and post a notice, but no additional monetary remedy will apply. Employers facing newly certified unions should evaluate potential challenges promptly and consider the legal and operational implications of pursuing court review.

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