Starting with a significant doctrinal development, GC Abruzzo announced yesterday that her office has filed a motion urging the Board to overturn Ex-Cell-O Corp., a 1964 precedent that fundamentally constrains the NLRB’s remedial powers in the failure to bargain context. As any labor lawyer knows, the NLRB’s remedial limitations have long been identified as one of the regime’s core deficiencies. In Ex-Cell-O the Board held that it lacks statutory authority to issue a monetary remedy for § 8(a)(5) duty to bargain violations. Such a remedy would be calculated to compensate employees in an amount approximating the economic improvements they would have secured had the employer engaged in the good faith bargaining the Act envisions. The decision effectively confined the Board’s remedial arsenal in 8(a)(5) cases to the all but useless bargaining order — which merely instructs the employer to do something it was already legally obligated to do, that is, bargain with the union in good faith.

Abruzzo signaled interest in revisiting Ex-Cell-O in the “stunning” remedies memo she issued last September. As Professor Sachs observed at the time, she could become one of the “most consequential GCs in NLRB history” if she manages to convince the Board to do a “fraction of the things” outlined in her memo. Friday’s motion is a significant step in that direction.

In organizing news, after eighteen months of negotiations, direct intervention by the mayor, and a one day strike, over 200 employees at Boston’s renowned MFA ratified a first contract on Tuesday. The MFA was perhaps the most prestigious of the many cultural institutions that organized during the pandemic, voting in a landslide to join the UAW in 2020.