## Facts

- Ex-Cell-O Corporation operated a plant in Elwood, Indiana, where a union representation election was conducted and the UAW won.
- After administrative proceedings, the UAW was certified in 1965 as the exclusive bargaining representative for a unit of Ex-Cell-O employees at the plant.
- Ex-Cell-O refused to recognize and bargain with the UAW, stating it was refusing to bargain to obtain judicial review of the certification decision.
- A Trial Examiner found the refusal to bargain violated NLRA § 8(a)(5) and § 8(a)(1) and recommended both a bargaining order and a “make-whole” monetary remedy for employee losses from the delayed bargaining opportunity.
- On review in 1970, the Board affirmed the unfair labor practice finding but rejected the monetary make-whole remedy and issued only a traditional order requiring the employer to bargain on request.

## Issues

1. Whether an employer violates NLRA § 8(a)(5) and § 8(a)(1) by refusing to bargain with a duly certified union in order to test the certification through judicial review.
2. Whether the NLRB may order a make-whole monetary remedy for losses attributed to the “lost opportunity” to bargain (wages and benefits employees purportedly would have obtained) when an employer unlawfully refuses to bargain.

## Decision

- The Board held Ex-Cell-O violated § 8(a)(5) and § 8(a)(1) by refusing to bargain with the certified union.
- The Board ordered Ex-Cell-O to cease and desist from the refusal and to bargain with the union upon request.
- The Board declined to adopt the Trial Examiner’s recommended make-whole monetary remedy, concluding such relief exceeded the Board’s authority and required impermissible assumptions about hypothetical contract terms.

## Legal Principles

- Refusal to bargain with a lawfully certified bargaining representative constitutes an unfair labor practice under NLRA § 8(a)(5), and the resulting interference with employees’ representational rights also violates § 8(a)(1).
- The Board may not impose remedies that effectively dictate substantive contract outcomes; the statutory duty to bargain requires good-faith bargaining, not agreement to particular terms.
- A make-whole award based on the terms and timing of a hypothetical collective-bargaining agreement was treated as both (a) functionally equivalent to imposing contract terms and (b) too speculative because it depends on conjecture about what the parties would have agreed to and when.

## Conclusion

The NLRB found Ex-Cell-O’s test-of-certification refusal to bargain unlawful, but limited the remedy to a traditional bargaining order, rejecting make-whole monetary relief for employees’ alleged lost bargaining gains as beyond the Board’s remedial authority and overly speculative.


Ex-Cell-O Corp., 185 N.L.R.B. 107 (1970)