News & Commentary

June 29, 2022

Jason Vazquez

Jason Vazquez is a student at Harvard Law School.

After 18 months of negotiation, including a pro-union intervention from Boston Mayor Michelle Wu and a one-day strike, more than 200 employees at Boston’s prestigious Museum of Fine Arts ratified a collective bargaining agreement (CBA) with museum management on Tuesday, the first since the museum workers overwhelmingly voting to join the United Autoworkers Local 2110 in November 2020, making the MFA one of many cultural institutions to become unionized during the pandemic. The union represents 227 of the museum’s administrative, technical, curatorial, and conservation staff, and Tuesday’s CBA raises wages and minimum pay rates for these workers for a total estimated change in wages of 13.5 percent over the three-year term of the contract, and also improves retirement and transportation benefits. “By establishing collective bargaining rights, the MFA staff is helping to bring about necessary systemic change for museum workers in general,” declared union President Maida Rosenstein in a statement.

In exciting NLRB news, General Counsel (GC) Jennifer Abruzzo announced on Twitter yesterday that she filed a motion on Friday asking the Board to overturn its decision in the 1970 case Ex-Cell-O, a major area of caselaw that she expressed interest in revisiting in her “stunning” remedies memo released last September.

Section 10 of the NLRA confers vast discretionary authority upon the NLRB to grant relief and fashion remedies to combat unfair labor practices, and in Ex-Cell-O the Nixon Board contemplated but ultimately declined to issue a beefed-up compensatory make-whole remedy for § 8(a)(5) violations of the duty to bargain in good faith, which would have required employers to monetarily compensate employees for the losses they sustained as a result of their employers’ unlawful refusal to bargain, based upon an estimation of the wage and benefit levels that the employees would have, or might have, contractually secured had the employer dutifully bargained.

In her announcement, Abruzzo rightfully noted that current law permits employers to delay bargaining, often for a period of years, with few if any consequences, which can be immensely beneficial to an employer and equally detrimental to the union and to workers—the Board’s failure to provide a meaningful remedy thus operates to reward an employer’s refusal to bargain. As Professor Kate Andrias has explained, under current NLRB law “an employer determined to resist collective bargaining can drag out negotiations for years, making plain its refusal to enter into an agreement with the union.” As the Board declined to impose a more expansive remedial order for failures to bargain in Ex-Cell-O, the traditional remedy for an 8(a)(5) violation continues to be a bargaining order—essentially an order affirmatively mandating that the employer do what it is already statutory required to do—which does little to ameliorate the erosion of union support and consequent drainage of union strength that often occurs throughout the facility when an employer refuses to engage in bargaining and ultimately reach a contract with the union. Indeed, the Board in Ex-Cell-O expressly conceded that “current remedies of the Board designed to cure violations of Section 8(a)(5) are inadequate” because “[a] mere affirmative order that an employer bargain upon request does not eradicate the effects of an unlawful delay,” before ultimately concluding that a compensatory remedy for § 8(a)(5) violations would improperly require the Board “to engage in the most general, if not entirely speculative, inferences,” notwithstanding the fact that other areas of law impose similarly speculative damage awards. Thus, Abruzzo’s motion “urges the Board to include as part of its remedial orders a requirement that employers make employees whole with monetary relief for the lost opportunity to make gains through the collective bargaining process.”

Abruzzo’s request to overturn Ex-Cell-O is exciting and could prove highly consequential—labor law scholars have long bemoaned the paltry selection of remedies imposed by the NLRB, one of the “major flaws in the current NLRA regime.” Indeed, Professor Sachs wrote last September that “if the Board does a fraction of the things Abruzzo calls for” in her remedies memo, she would become “one of the most consequential GCs in NLRB history.” On Friday, by requesting that the Board revisit Ex-Cell-O, Abruzzo appeared to take a step in that direction. 

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