Labor Law–Remedies–An Assessment of the Proposed “Make-Whole” Remedy in Refusal-To-Bargain Cases

The conventional National Labor Relations Board (NLRB) remedy against an employer who has violated section 8(a)(5) of the National Labor Relations Act (NLRA) by refusing to bargain with a properly certified union is a cease-and-desist order coupled with a directive ordering the employer to bargain with the union at the union’s request. However, the interval between an employer’s initial refusal to bargain and the final entry of a court of appeals’ decree enforcing the NLRB’s order to bargain has often been of such long duration that unions have complained that the conventional remedy is relatively meaningless and ineffective. The unions’ first argument is that the NLRB order is inadequate because it does not compensate employees for the “loss” of the economic benefits which they might have received from the employer if collective bargaining had taken place. The unions also argue that since the normal cease-and-desist remedy does not require the employer to make good these “losses,” many employers are actually encouraged to violate section 8(a)(5) in order to gain time during which they do not have to confer any benefits. In short, the argument is that an employer has much to gain by deliberately violating the NLRA, since all he presently risks by such conduct is a mild reprimand in the form of a cease-and-desist order. In four recent NLRB cases, including the celebrated Ex-Cell-O case, several unions have argued that a provision for restoring the “lost benefits” of collective bargaining to employees-that is, a “make-whole” order-should be included in the remedy for an employer’s unlawful refusal to bargain.