ArrMaz Products, Inc.

372 NLRB No. 12 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. ArrMaz Products Inc. and International Chemical Workers Union Council of The United Food and Commercial Workers International Union, AFL–CIO, CLC. Case 12–CA–294086 December 6, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND WILCOX This is a refusal-to-bargain case in which the Respond- ent ArrMaz Products Inc. is contesting the Union’s certi- fication as bargaining representative in the underlying rep- resentation proceeding. Pursuant to a charge filed on April 14, 2022, by the International Chemical Workers Union Council of the United Food and Commercial Work- ers International Union, AFL–CIO, CLC (the Union), the General Counsel issued a complaint on May 4, 2022, amended on June 8, 2022, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union fol- lowing the Union’s certification in Case 12–RC–255997. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982)). The Respondent filed an answer ad- mitting in part and denying in part the allegations in the complaint. On July 1, 2022, the General Counsel filed a Motion for Summary Judgment. On July 22, 2022, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the Motion for Summary Judg- ment should not be granted. The Respondent requested an extension of time to respond to the Motion for Summary Judgment on July 28, 2022. On August 1, 2022, the Re- spondent’s request for an extension of time was granted, and the extension was applied to all parties. The Respond- ent filed an Opposition to the General Counsel’s Motion for Summary Judgement on August 26, 2022, and the Un- ion filed its Response to General Counsel’s Motion for Summary Judgment on the same day. On August 29, 2022, the General Counsel was granted an extension of time to respond to the Respondent’s opposition to the 1 In its answer, the Respondent largely admits the complaint allega- tions, including the allegation that it is refusing to recognize and bargain with the Union, but denies complaint par. 5(e), which asserts that the Union is the exclusive collective-bargaining representative, and par. 7, which alleges that the Respondent’s refusal to bargain violates Sec. 8(a)(1) and (5). The Respondent’s affirmative defenses echo its Motion for Summary Judgment. On September 9, 2022, the General Counsel filed its Reply to Respondent’s Op- position to the General Counsel’s Motion for Summary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certification of representa- tive based on its contention, raised and rejected in the un- derlying representation proceeding, that the certification was improper because two challenged ballots should have been included in the tally.1 All representation issues raised by the Respondent were or could have been litigated in the prior representation pro- ceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times since about June 15, 2020, the Re- spondent ArrMaz Products Inc. has been a Delaware cor- poration with an office and place of business located in Mulberry, Florida, where it is engaged in the business of manufacturing and providing specialty chemicals used for the mining, fertilizer, phosphate, industrial ammonium ni- trate, asphalt, and oil and gas industries. At all material times prior to about June 15, 2020, the Respondent was a Delaware limited partnership, engaged in the same business described above at its Mulberry, Flor- ida facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, sold and shipped from its Mulberry, Florida facility goods valued in excess of $50,000 directly to points outside the State of Florida. representation case objections regarding the challenged ballots and it as- serts that the Regional Director and the Board erred in rejecting these objections. The challenged ballots issue, however, was fully litigated and resolved in the underlying representation proceeding. Accordingly, the Respondent’s reiteration of its objections does not raise any litigable issue in this proceeding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification A representation election was conducted manually on March 12 and 13, 2020. The Regional Director issued a Decision on Challenged Ballots and Certification of Rep- resentative on August 25, 2021, certifying the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production operators, sulfonation operators, railside operators, small blends and warehouse operators, maintenance technicians, electrical and instrumentation technicians, custodians, and parts clerks employed by the Employer at its Mul- berry, Florida facility, excluding all other employees, professional laboratory technicians, quality assurance la- boratory technicians, engineers, office clerical employ- ees, managers, guards, and supervisors as defined in the Act. On September 8, 2021, the Respondent filed a Request for Review of the Regional Director’s Decision on Challenged Ballots and Certification of Representative. On February 17, 2022, the Board denied the Respondent’s request for review of the Regional Director’s decision. The Union continues to be the exclusive collective-bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain About February 24, 2022, the Union requested that the Respondent bargain with the Union as the exclusive col- lective-bargaining representative of the unit. Since about February 24, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about February 24, 2022, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair 2 The merits of the severed and retained issue, along with the Re- spondent’s request that the Board seek public input as to those merits, are now pending at the Board. Accordingly, addressing our dissenting labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist from failing and refusing to recognize and bargain with the Union, to bargain on request with the Union and, if an understanding is reached, to embody the understand- ing in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that we adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would require overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological frame- work for calculating such a remedy. The Board has de- cided to sever this issue and retain it for further consider- ation to expedite the issuance of this decision regarding the remaining issues in this case.2 See Longmont United Hospital, 371 NLRB No. 162, slip op. at 2 (2022). The Board will issue a supplemental decision regarding a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Ken- tucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Re- spondent ArrMaz Products Inc., Mulberry, Florida, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with the International Chemical Workers Union Council of the United Food and Commercial Workers International Un- ion, AFL–CIO, CLC (the Union) as the exclusive collec- tive-bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. colleague’s arguments on the merits of the issue would be premature, and we decline to do so. ARRMAZ PRODUCTS INC. 3 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production operators, sulfonation operators, railside operators, small blends and warehouse operators, maintenance technicians, electrical and instrumentation technicians, custodians, and parts clerks employed by the Employer at its Mul- berry, Florida facility, excluding all other employees, professional laboratory technicians, quality assurance la- boratory technicians, engineers, office clerical employ- ees, managers, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Mulberry, Florida, copies of the attached no- tice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 12, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since February 24, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 12 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. 3 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work, and the notices may not be posted until a substantial complement of employees has re- turned to work. If, while closed or not staffed by a substantial comple- ment of employees due to the pandemic, the Respondent is Dated, Washington, D.C. December 6, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER RING, dissenting in part: The Respondent refused to bargain with the Union fol- lowing its certification by the Board as the representative of its unit employees. It did so for the purpose of obtaining judicial review of the Regional Director’s decision in the representation case. There is no dispute about this fact. Refusing to bargain is the only way that the Respondent could obtain judicial review of the representation-case de- cision, a procedure deliberately chosen by Congress and embodied in the National Labor Relations Act. The Re- spondent has a right to its day in court, a point the General Counsel concedes. Yet the General Counsel contends that the Respondent, and all employers that refuse to bargain in order to challenge a union’s certification in federal court, nevertheless should be required to exercise that right at the peril of significant financial liability if the court rules against them. Specifically, the General Coun- sel contends that the Board should order those employers to compensate their employees for “the lost opportunity to bargain at the time and in the manner contemplated by the Act” by paying them the amounts they purportedly would have received under “collective-bargaining agreements negotiated in comparable bargaining units or under com- parable circumstances to those that would have prevailed had the employer bargained as required.” This remedy would burden the exercise of a right to judicial review that Congress expressly provided. Moreover, it would contra- vene Section 8(d) of the Act and Supreme Court communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electroni- cally more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 precedent, particularly H. K. Porter Company, Inc. v. NLRB,1 because it would compel employers to comply with contractual terms to which they have not agreed. The remedy the General Counsel proposes is also impermissi- bly speculative and unsound on policy grounds. And as I show below, the arguments the General Counsel makes in support of her proposal are utterly unpersuasive. As the General Counsel acknowledges, this proposed remedy was squarely rejected by the Board more than 50 years ago in Ex-Cell-O Corp.2 The General Counsel asks the Board to overrule that decision, and the majority sev- ers that issue for further consideration, a step it has also taken in other cases where the General Counsel has ad- vanced this argument. Because I believe that Ex-Cell-O Corp. was correctly decided, I respectfully dissent from the decision to consider overruling it.3 Background The Board conducted a representation election in this case pursuant to a Stipulated Election Agreement. The tally of ballot showed 20 for and 18 against representation, with two determinative challenged ballots cast by Jesse Hargadine and Robert Strickland. The Regional Director ordered a hearing on the challenged ballots, and a hearing officer’s report recommending that the challenges be sus- tained was issued on January 29, 2021. After the Re- spondent filed exceptions, the Regional Director issued a Decision and Certification of Representative on August 25, 2021, affirming the hearing officer’s report. On Feb- ruary 17, 2022, the Board denied the Employer’s Request for Review of the Regional Director’s decision. Thereaf- ter, the Union requested bargaining and the Respondent refused by letter dated April 11, 2022. That letter ex- plained the Respondent’s position as follows: The Company is committed to providing all affected employees with their statutory right to a secret ballot 1 397 U.S. 99 (1970). 2 185 NLRB 107, 107–110 (1970), reversed and remanded in relevant part sub nom. United Auto Workers v. NLRB, 449 F.2d 1046 (D.C. Cir. 1971), remand vacated and order enforced Ex-Cell-O Corp. v. NLRB, 449 F.2d 1058 (D.C. Cir. 1971). 3 All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and are not properly litigable in this unfair labor practice case. Accordingly, I join my colleagues in granting the General Counsel’s motion for summary judgment on the complaint allegation that the Respondent violated Sec. 8(a)(5) by failing to recognize and bargain with the Union. 4 See Sec. 9(c)(1)(B) of the Act. 5 American Federation of Labor v. NLRB, 308 U.S. 401, 411 (1940). 6 Id. at 409. 7 Sec. 9(d) relevantly states: Whenever an order of the Board made pursuant to section 10(c) is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, vote on the question of whether they desire union repre- sentation. As you know, the only way to raise these unit issues with the court is to engage in a technical refusal to bargain. Accordingly, the Company respectfully de- clines to bargain at this time so that the courts can deter- mine what voting unit is appropriate for bargaining, and specifically whether the votes of Mr. Hargadine and Mr. Strickland were improperly ignored. Discussion A. Employers Must Refuse to Bargain to Obtain Judicial Review of Union Certifications. The National Labor Relations Act directs the Board to determine questions concerning representation by con- ducting an election by secret ballot and certifying the re- sults thereof.4 Congress made a “deliberate choice” to ex- clude representation proceedings and Board certifications from direct judicial review.5 Instead, the only way an em- ployer can obtain judicial review of a certification of rep- resentative is by refusing to bargain with a certified union and then presenting its representation-case contentions to a federal court of appeals on a petition for review of the Board’s order in the ensuing unfair labor practice case.6 This procedure is expressly contemplated by Section 9(d) of the Act, which specifies the process to be followed when an order of the Board in an unfair labor practice case is “based in whole or in part upon facts certified” by the Board in a representation case.7 Congress chose this pro- cedure because allowing direct judicial review of deci- sions in representation cases would cause delays that would impair the union’s strength or result in disruptive strikes.8 An employer waives its right to challenge a union’s cer- tification in the courts of appeals if it recognizes and bar- gains with the union.9 Thus, an employer must refuse to bargain in order to exercise its right to judicial review. such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under section 10(e) or 10(f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such tran- script. 8 Boire v. Greyhound Corp., 376 U.S. 473, 478 (1964) (“[T]he union, unless an election can promptly be held to determine the choice of rep- resentation, runs the risk of impairment of strength by attrition and delay while the case is dragging on through the courts, or else is forced to call a strike to achieve recognition by its own economic power.”). 9 See Nursing Center at Vineland, 318 NLRB 901, 904 (1995), enfd. mem. sub nom. Konig v. NLRB, No. 95- 3507, 1996 WL 199152 (3d Cir. Jan. 11, 1996); Technicolor Government Services v. NLRB, 739 F.2d 323, 326 (8th Cir. 1984) (“Once an employer honors a certification and recognizes a union by entering into negotiations with it, the employer has waived the objection that the certification is invalid.”); King Radio Corp. v. NLRB, 398 F.2d 14, 20 (10th Cir. 1968) (same). ARRMAZ PRODUCTS INC. 5 The courts of appeals have therefore consistently recog- nized that refusing to bargain is the “accepted method” for an employer to obtain judicial review of a representation- case decision with which it disagrees, terming it a “tech- nical refusal to bargain.”10 The Board’s standard remedy for a technical refusal to bargain is an affirmative bargain- ing order requiring the employer to recognize and bargain with the union. That order is judicially reviewable, and that review necessarily encompasses the validity of the un- derlying certification on which the bargaining order rests. B. The Board Lacks the Authority to Award Financial Compensation for a Refusal to Bargain. The General Counsel urges the Board to supplement the standard affirmative-bargaining-order remedy for a tech- nical refusal to bargain with an order requiring the Re- spondent to compensate employees for the difference be- tween their existing terms and conditions of employment and those they purportedly would have obtained if the par- ties had bargained in good faith immediately following the union’s certification. According to the General Counsel, this remedy is necessary to give teeth to the duty to bargain and to compensate employees for the “lost opportunity to engage in collective bargaining at the time and in the man- ner contemplated by the Act.” In support, the General Counsel cites a 50-year-old decision by the United States Court of Appeals for the District of Columbia Circuit in International Union of Electrical, Radio & Machine Workers v. NLRB (Tiidee Products).11 As discussed be- low, the Tiidee Products decision has no application to certification-testing cases like this one and is, in any event, contrary to the Act and binding Supreme Court precedent. The Board recognized as much in Ex-Cell-O Corp., and the General Counsel’s arguments for overruling that well- reasoned precedent are wholly without merit. 1. The D.C. Circuit’s Tiidee Products decision Unlike this case, Tiidee Products did not involve a cer- tification-testing employer. Rather, the court found that the employer had forfeited its right to contest the union’s certification by the regional director and that its refusal to 10 Bob’s Big Boy Fam. Rests. v. NLRB, 625 F.2d 850, 851 fn. 1 (9th Cir. 1980) (“This procedure, known as a technical refusal to bargain, is the accepted method of obtaining appellate review of representation cases under section 9 of the [Act].”); see also NLRB v. Downtown Bid Services Corp., 682 F.3d 109, 112 (D.C. Cir. 2012) (refusal to bargain “sets up judicial review of an election certification that is otherwise in- sulated from direct review”). 11 426 F.2d 1243 (D.C. Cir. 1970). 12 Id. at 1248. 13 Id. at 1246–1248. 14 Id. at 1253. 15 Id. at 1256 (MacKinnon, J., concurring in part and dissenting in part). Sec. 8(d) relevantly states: bargain thereafter was therefore “palpably without merit” and a “clear and flagrant violation of the Act.”12 Moreo- ver, the refusal to bargain was accompanied by unlawful threats of plant closure, interrogations, and discriminatory layoffs, discharges, and production-quota increases imple- mented in retaliation for the employees having voted for the union.13 The Board ordered make-whole relief for the discriminatory layoffs, discharges, and production-quota increases and remedied the refusal to bargain with an af- firmative bargaining order. The charging party union con- tended that the affirmative bargaining order was insuffi- cient to fully remedy the refusal to bargain. A panel ma- jority of the D.C. Circuit agreed, urging the Board to sup- plement the standard affirmative bargaining order with an order requiring the employer to compensate employees for an amount equal to “what the parties themselves would have agreed to if they had engaged in the kind of bargain- ing process required by the Act.”14 Judge MacKinnon dissented from the bargaining-com- pensation aspect of the court’s decision. As he carefully explained, the majority’s “fundamental error” was that the proposed remedy is forbidden by Section 8(d) of the Act, which specifies that the duty to bargain under the Act “does not compel either party to agree to a proposal or re- quire the making of a concession.”15 Specifically, Judge MacKinnon wrote that the proposed remedy would authorize damages on the likelihood that certain results would be reached that the Act provides are not required to be reached. Here the cause of the alleged damage for which the Union requests reimbursement is actually the refusal of the Company to agree to a contract (not the failure to bargain collectively) but no damages can be assessed therefor because there is no legal duty upon either party to agree upon a contract. Thus, even assuming a failure to bargain, the damages here are not being assessed on that basis but upon a failure to agree, which is not a duty imposed on either party, and a failure to agree upon a specific result, which is entirely specu- lative.16 For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execu- tion of a written contract incorporating any agreement reached if requested by either party, but such obligation does not com- pel either party to agree to a proposal or require the making of a concession. 16 Id. (emphasis in original). See also H. K. Porter Company, Inc. v. NLRB, 397 U.S. at 99 (holding that Board lacked the power to remedy a refusal to bargain over dues-checkoff provision by ordering the employer to agree to it). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Judge MacKinnon further noted that even on its own terms the proposed remedy was incoherent because, in light of the employer’s open hostility to the union, “the most realistic prediction would be that the parties would not have agreed to anything. Any other conclusion is difficult to reach in light of the Company president’s ‘antiunion animus’ and the ‘pa- tently frivolous’ objections to the election.”17 The D.C. Circuit remanded Tiidee Products to the Board with instructions to apply the remedy it specified. On remand, the parties presented evidence on the re- manded issue, including the union’s proposed agreement, other collective-bargaining agreements in the employer’s geographic area, evidence of the time required to negotiate a first contract, and charts and tables depicting nationwide changes in wages and benefits. After carefully consider- ing this evidence, the Board concluded: “We know of no way by which the Board could ascertain with even approx- imate accuracy from the above what the parties ‘would have agreed to’ if they had bargained in good faith.”18 The D.C. Circuit thereafter accepted the Board’s determina- tion.19 The D.C. Circuit subsequently clarified that its decision in Tiidee Products did not require that the Tiidee Products remedy be imposed in all cases involving a refusal to bar- gain.20 In United Steelworkers v. NLRB, the court af- firmed a Board order that did not include that remedy be- cause it “[could not] say that the employer engaged in this litigation in order to delay the final resolution of the dis- pute. Instead it desired only to obtain an authoritative de- termination of the validity of the Board’s decision.”21 Un- der those circumstances, the court held that the Tiidee Products remedy was not required. 2. The Board rejected the Tiidee Products remedy in Ex-Cell-O Corp. The Board carefully considered the Tiidee Products remedy in Ex-Cell-O Corp., a full Board decision issued after oral argument and full briefing by the parties and amici. As the Board there explained, imposing the Tiidee Products remedy on a certification-testing employer “may come close to a form of punishment for having elected to pursue a representation question beyond the Board and to the courts.”22 The Ex-Cell-O Board further held that re- quiring “an employer to compensate employees for losses 17 426 F.2d at 1256 (MacKinnon, J., concurring in part and dissenting in part). 18 Tiidee Products, 194 NLRB 1234, 1235 (1972). 19 Intern. Union of Elec., Radio, and Mach. Workers, AFL–CIO v. NLRB, 502 F.2d 349 (D.C. Cir. 1974). 20 For ease of reference, I will refer to the remedy that the Tiidee Products court espoused, and the General Counsel urges the Board to adopt, as the “Tiidee Products” remedy. they incurred as a consequence of their employer’s failure to agree to a contract he would have agreed to if he had bargained in good faith” contravened the policies of the Act.23 This is so because it would require the employer to compensate the employees in the same manner as if it had agreed to a particular collective-bargaining agreement and thereafter failed to comply with it. This, the Ex-Cello-O Board reasoned, would be contrary to the policies embod- ied in Section 8(d) of the Act.24 As the Supreme Court recognized in H. K. Porter, one of the “fundamental policies” of the Act is freedom of con- tract, and “allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—pri- vate bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.”25 This limitation applies equally to the Board’s remedial powers because “[i]t would be anomalous indeed to hold that while § 8(d) pro- hibits the Board from relying on a refusal to agree as the sole evidence of bad-faith bargaining, the Act permits the Board to compel agreement in that same dispute.”26 Alt- hough H. K. Porter does not directly preclude the Tiidee Products remedy, that remedy cannot be squared with the logic of the Court’s decision, as the Ex-Cell-O Board rec- ognized. The remedy the Court held impermissible in H. K. Porter “operates prospectively to bind an employer to a specific contractual term,” whereas the Tiidee Products remedy “operates retroactively to impose financial liabil- ity upon an employer flowing from a presumed contrac- tual agreement.”27 But this is a distinction without a dif- ference because “[i]n either case the employer has not agreed to the contractual provision for which he must ac- cept full responsibility as though he had agreed to it.”28 The Ex-Cell-O Board also explained that the Tiidee Products remedy was too speculative to be applied in a defensible or equitable manner: Who is to say in a specific case how much an employer is prepared to give and how much a union is willing to take? Who is to say that a favorable contract would, in any event, result from the negotiations? And it is only the employer of such good will as to whom the Board might conclude that he, at least, would have given his employees a fair increase, who can be made subject to a 21 United Steelworkers v. NLRB, 430 F.2d 519, 521 (D.C. Cir. 1970), enfg. 178 NLRB 711 (1969). 22 185 NLRB at 109. 23 Id. at 110. 24 Id.; see also H. K. Porter Company, Inc. v. NLRB, 397 U.S. at 99. 25 397 U.S. at 108. 26 Id. at 107. 27 Ex-Cell-O Corp., 185 NLRB at 110 (emphasis in original). 28 Id. (emphasis in original). ARRMAZ PRODUCTS INC. 7 financial reparations order; should such an employer be singled out for the imposition of such an order? To an- swer these questions the Board would be required to en- gage in the most general, if not entirely speculative, in- ferences to reach the conclusion that employees were de- prived of specific benefits as a consequence of their em- ployer’s refusal to bargain.29 Although the Ex-Cell-O Board did not specifically note it, the idea of remedying the refusal to bargain in H. K. Porter by requiring the employer to agree to dues checkoff and the Tiidee Products remedy both originated with the D.C. Circuit at roughly the same time.30 That court’s ad- vocacy for the dues-checkoff remedy was decisively re- jected by the Supreme Court in H. K. Porter. Having been burned once, the Ex-Cell-O Board reasonably would have been leery of following the same advice from the same source a second time. 3. Ex-Cell-O Corp. was correctly decided and should be reaffirmed. I believe that the Board’s reasoning in Ex-Cell-O was sound and that the Board reached the correct result. The General Counsel has advanced a number of arguments in support of her request that the Board revisit that decision. None of them withstands scrutiny. First, the General Counsel asserts that imposing the Ti- idee Products remedy does not punish employers for seek- ing judicial review. The General Counsel recognizes that an employer does have the right to raise objections to an election before the Board “and eventually before a court on review in an unfair-labor-practice proceeding.” But she contends that imposing the Tiidee Products remedy would not infringe on that right, likening it to the practice of requiring that a defendant in a civil action file a super- sedeas bond as a condition of obtaining a stay pending an 29 Id. 30 See United Steelworkers of America, AFL–CIO v. NLRB (H. K. Porter), 389 F.2d 295 (D.C. Cir. 1967); H. K. Porter, 172 NLRB 996 (1968), affd. 414 F.2d 1123 (D.C. Cir. 1969); Intern. Union of Elec., Ra- dio & Mach. Workers v. NLRB (Tiidee Products), above. 31 Clark v. Universal Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974) (trial court impermissibly threatened plaintiffs with automatic reinstate- ment of defendants’ dismissed counterclaim and imposition of costs if plaintiffs appealed), cert. denied 419 U.S. 1070 (1974). Under Federal Rule of Appellate Procedure 7, a district court may require an appellant to file a bond or provide other security in any amount necessary to ensure payment of costs on appeal. See, e.g., Adsani v. Miller, 139 F.3d 67, 70 fn. 2 (2d Cir. 1998) (“[A] ‘supersedeas bond’ is retrospective covering sums related to the merits of the underlying judgment (and stay of its execution), whereas a ‘cost bond’ is prospective relating to the potential expenses of litigating an appeal.”), cert. denied 525 U.S. 875 (1998). But the Tiidee Products remedy has no relationship to an appeal bond. 32 See Sec. 10(g) of the Act (“The commencement of proceedings under subsection (e) or (f) of this section shall not, unless specifically ordered by the court, operate as a stay of the Board’s order.”). appeal of adverse judgment in favor of the plaintiff. That analogy fails for multiple reasons. To begin, a super- sedeas bond is required only when a party seeks a stay of the judgment it is appealing. It is not a condition of the appeal itself. To the contrary, “any attempt by a court at preventing an appeal is unwarranted and cannot be toler- ated.”31 Board orders are not stayed by the filing of a pe- tition for review or enforcement unless the court specifi- cally so orders.32 And a federal court has no power to im- pose a supersedeas bond absent a stay.33 It is fanciful to suppose that the Board would have such a power when a federal court would not. To the contrary, unlike a federal court, the Board lacks the power to require a party to post any sort of bond for any reason, including as a condition of seeking judicial review of a Board decision. Accord- ingly, the Board cannot accomplish the same result indi- rectly through the Tiidee Products remedy. The filing of a petition for review with a court of appeals is also the first opportunity the opposing party has to ob- tain judicial review. It is therefore unlike an appeal from an adverse judgment in a civil case, in which a party who has lost before the trial court seeks review from a second, appellate, court.34 Even if an appeal may permissibly be burdened by a bond requirement, it does not follow that the right to a day in court in the first instance may be sim- ilarly burdened.35 The General Counsel concedes that a certification-testing employer has the right to seek review of an adverse Board decision in the representation case, and it would impermissibly burden that right to impose the Tiidee Products remedy on an employer who exercises it. In any event, the D.C. Circuit has squarely held that the Tiidee Products remedy is not required in a case where the employer “desired only to obtain an authoritative determi- nation of the validity of the Board’s decision.”36 That 33 United States ex rel. Terry Inv. Co. v. United Funding & Investors, Inc., 800 F. Supp. 879, 881 (E.D. Cal. 1992) (“[T]he district court does not have the power to grant a supersedeas bond, except pursuant to an appellant’s motion to stay.”). 34 See Lindsey v. Normet, 405 U.S. 56, 77 (1972) (“[I]f a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review.”). 35 But see Lindsey v. Normet, 405 U.S. at 77–79 (holding statute con- ditioning appeal on posting of double bond unconstitutional under Four- teenth Amendment’s Equal Protection Clause); Clark v. Universal Build- ers, Inc., supra, 501 F.2d at 324. 36 United Steelworkers v. NLRB, 430 F.2d at 521. In that case, the employer refused to recognize the union after the union presented au- thorization cards from a majority of unit employees, not after a Board- conducted election. The Board’s bargaining order was based on that card majority and the employer’s other, serious unfair labor practices, which “caused an election to be a less reliable guide to the employees’ free choice than the signed cards by which they designated the Union to rep- resent them.” 178 NLRB at 711. The court’s agreement that the Tiidee Products remedy was not required in that setting applies with even greater force to an employer, like the Respondent, that refused to bargain DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 precisely describes the Respondent in this case. Accord- ingly, no precedent supports the General Counsel’s argu- ment for extending the proposed remedy to cases like this one. Second, the General Counsel contends that the Tiidee Products remedy is supported by Board decisions holding that an employer acts at its peril if it implements unilateral changes to employees’ terms and conditions of employ- ment while it is challenging a union’s certification.37 The General Counsel argues that there is nothing unfair about providing that an employer similarly acts at its peril when refusing to bargain while it challenges a Board certifica- tion, but the differences between the two situations are ob- vious. A certification-testing employer must refuse to bar- gain in order to obtain judicial review, but there is no re- quirement that it make unilateral changes to obtain judicial review or for any other reason. Further, an employer has a due process right to seek judicial review but has no due process right to make unilateral changes. For these rea- sons, requiring an employer to make employees whole for losses suffered as a result of unilateral changes unlawfully implemented while the employer unsuccessfully chal- lenged a union’s certification does not burden its right to seek judicial review. Imposing the Tiidee Products rem- edy for a certification-testing refusal to bargain does. Although the General Counsel neglects to note it, the dilemma that a certification-testing employer would face under the Tiidee Products remedy is similar to the di- lemma faced by a certification-testing employer in re- sponding to union information requests that raise confi- dentiality concerns. Normally, employers are required to engage in accommodative bargaining when a union re- quests confidential information, but a certification-testing employer forfeits its right to challenge the certification if it recognizes and bargains with the union.38 If the em- ployer fails to respond to the information request by offer- ing to engage in accommodative bargaining, on the other hand, it normally forfeits its confidentiality defense. In NP Palace, LLC,39 the Board resolved this dilemma by modifying its remedy for certification-testing employ- ers that fail to provide requested relevant but confidential information, so that the employer does not forfeit either its confidentiality defense or its right to challenge the union’s certification. Rather than unconditionally require the em- ployer to provide the information, the Board held that in solely to challenge a certification in court and has not committed other unfair labor practices. 37 See, e.g., Adair Standish Corp., 290 NLRB 317, 329 (1988), enfd. in relevant part 912 F.2d 854, 863 (6th Cir. 1990); Mike O’Connor Chev- rolet, 209 NLRB 701, 703 fn. 20 (1974), remanded on other grounds 512 F.2d 684 (8th Cir. 1975). 38 See cases cited in fn. 9, above. those circumstances it would order the employer to engage in accommodative bargaining after its challenge to the un- ion’s certification was resolved. Rejecting the contention that such employers should be required to challenge the union’s certification at the peril of forfeiting their confi- dentiality defense if the employer loses, the Board ex- plained that the policies of the Act were best served by preserving both the employer’s right to secure judicial review of the underlying repre- sentation case and, if the union’s certification is upheld by a court of appeals, [its right] to engage in accommo- dative bargaining with respect to information as to which it has raised a legitimate defense, such as confi- dentiality, that would normally require such bargain- ing.40 The D.C. Circuit unanimously upheld this determination as “both reasonable and consistent with the Act.”41 In so hold- ing, the court specifically rejected the view that this remedy altered the basic duty to bargain or was impermissible be- cause an employer is held to act at its peril when making uni- lateral changes to terms and conditions of employment.42 In my view, the D.C. Circuit’s unanimous affirmance of the Board’s decision in N.P. Palace is a more reliable guide to that court’s current views than the ruminations of a divided D.C. Circuit panel in Tiidee Products more than 50 years ago. The General Counsel does not even mention N.P. Palace, much less explain how the Tiidee Products remedy could possibly be consistent with the principles stated there. Third, the General Counsel contends that the Tiidee Products remedy is consistent with Section 8(d) and H. K. Porter because it “would not compel agreement to partic- ular contractual terms but would instead estimate the value of the lost opportunity to bargain at the time and in the manner required by the Act.” But the proposed remedy would accomplish that goal by requiring the employer to pay its employees the amounts they would have received under “collective-bargaining agreements negotiated in comparable bargaining units or under comparable circum- stances to those that would have prevailed had the em- ployer bargained as required.” This is the same remedy that the Board would order if the employer had entered into a collective-bargaining agreement containing those 39 368 NLRB No. 148 (2019), review denied 1 F.4th 12 (D.C. Cir. 2021). 40 Id., slip op. at 1. 41 1 F.4th at 15. 42 Id. (“The Board need not predict how its ruling would apply in other contexts or interact with other doctrines. E.g., Petitioner’s Brief 23- 25 (discussing unilateral changes). . . . Nor does the Board’s decision— which concerns only remedies—alter the basic duty to bargain.”). ARRMAZ PRODUCTS INC. 9 terms and then failed to comply with its provisions.43 As Judge MacKinnon persuasively explained in his Tiidee Products dissent, this remedy is foreclosed by the Su- preme Court’s decision in H. K. Porter because it “would authorize damages on the likelihood that certain results would be reached that the Act provides are not required to be reached. . . . [E]ven assuming a failure to bargain, the damages here are not being assessed on that basis but upon a failure to agree, which is not a duty imposed on either party, and a failure to agree upon a specific result, which is entirely speculative.”44 As the Board correctly recog- nized in Ex-Cell-O Corp., the Tiidee Products remedy is an attempt to achieve indirectly a result the Board is pro- hibited by Section 8(d) from ordering directly: compelling a party to comply with terms to which it has not agreed.45 Contrary to the General Counsel, the Tiidee Products remedy is materially different from the make-whole rem- edy ordered by the Board when a successorship-evading employer—i.e., an employer that discriminatorily refuses to hire its predecessor’s employees to avoid having to rec- ognize and bargain with their union as a Burns succes- sor46—unlawfully makes unilateral changes to its prede- cessor’s terms and conditions of employment. In those circumstances, extant Board law holds that the successor must make employees whole for the losses suffered as a result of the unilateral changes.47 In quantifying those losses, the Board may look to the terms of a predecessor’s collective-bargaining agreement to determine what the status quo was, but the make-whole relief is based on an unlawful unilateral change to existing terms, not on a fail- ure to reach agreement on new terms, and it is determined by the status quo that the employer unlawfully changed, not on the basis of hypothetical new terms that the em- ployer supposedly would have agreed to if it had bar- gained. The Tiidee Products remedy is also unlike the Trans- marine limited backpay award that accompanies an af- firmative bargaining order when an employer fails to 43 Bath Iron Works Corp., 345 NLRB 499, 501 (2005) (When an em- ployer fails to adhere to a contract to which it has agreed, the remedy is an order requiring the employer “to honor the contract.”), affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). 44 Intern. Union of Elec., Radio & Mach. Workers v. NLRB (Tiidee Products), 426 F.2d at 1257 (MacKinnon, J., concurring in part and dis- senting in part) (emphasis in original). 45 Ex-Cello-O Corp., 185 NLRB at 110 (explaining that although the prohibited H. K. Porter remedy “operates prospectively” whereas the Ti- idee Products remedy “operates retroactively,” “[i]n either case the em- ployer has not agreed to the contractual provision for which he must ac- cept full responsibility as though he had agreed to it”) (emphasis in orig- inal). 46 NLRB v. Burns Security Services, 406 U.S. 272 (1972). 47 Pressroom Cleaners, 361 NLRB 643, 643 (2014). In Pressroom Cleaners, a divided Board overruled precedent allowing an employer to bargain over the effects of a core entrepreneurial decision that was not itself bargainable but caused unit employees to lose their jobs.48 Because the employer no longer has need of the employees’ services, the union lacks bargain- ing leverage, and meaningful effects bargaining cannot be assured until some measure of economic strength is re- stored to the union. To accomplish that goal, the Board orders the employer to pay employees the amount they would have earned as wages when last in the respondent employer’s employ while effects bargaining takes place.49 In a technical 8(a)(5) case, however, no loss of employ- ment has dissipated the union’s economic strength. More- over, the Transmarine limited backpay award is based on the employees’ existing rate of pay at the time their em- ployment ceased—not, as in the case of the Tiidee Prod- ucts remedy, some new terms to which the employer pur- portedly would have agreed but never, in fact, has. The Board plays no role in determining either the Transmarine backpay rate or the benefits granted to the employer’s for- mer employees as a result of effects bargaining, which are instead determined by the parties themselves, as the Act requires. C. The Tiidee Products Remedy Is Unworkable and Would Undermine the Policies of the Act. Even if the Tiidee Products remedy were otherwise within the Board’s authority, any attempt to determine what the parties would have agreed to if they had bar- gained would be far too speculative to be permissible in any event. As the Board stated in Ex-Cell-O, “[T]o answer these questions the Board would be required to engage in the most general, if not entirely speculative, inferences to reach the conclusion that employees were deprived of spe- cific benefits as a consequence of their employer’s refusal to bargain.”50 Similarly, in Tiidee Products itself, after careful consideration of the evidence presented, a unani- mous Board found itself unable to determine what the par- ties would have agreed to had they bargained in good faith. As the Board stated there, it could only decide “what the show in compliance that it would have reached impasse or agreement on less favorable terms. In so doing, the Board majority cited approvingly to the Board’s prior rejection of the Tiidee Products remedy, stating: “We know of no way by which the Board could ascertain with even ap- proximate accuracy what the parties would have agreed to if they had bargained in good faith.” 361 NLRB at 647 (internal quotations omit- ted). It is indeed ironic that the General Counsel would now cite that case as support for the very remedy that the Pressroom Cleaners major- ity rejected as impermissibly speculative. 48 See Transmarine Navigation Corp., 170 NLRB 389 (1968), as clar- ified by Melody Toyota, 325 NLRB 846 (1998). 49 See, e.g., Rigid Pak Corp., 366 NLRB No. 137, slip op. at 5–6 (2018) (describing the Transmarine remedy and its limited duration). 50 Ex-Cell-O Corp., 185 NLRB at 110. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 parties ‘should have agreed to,’” a power the Board indis- putably lacks.51 There is no reason to suppose that the Board could do any better today. In this regard, the General Counsel’s suggestion that the Board should determine the size of the remedy based on “collective-bargaining agreements negotiated in compara- ble bargaining units or under comparable circumstances to those that would have prevailed had the employer bar- gained as required” is a transparent attempt to impose sec- toral bargaining on the American economy.52 While that is an avowed objective of certain advocacy organizations, the policy that Congress has established is premised on “free collective bargaining” by the parties themselves.53 The General Counsel and the Board should strive to pro- mote that policy. The Tiidee Products remedy under- mines it. Not only does it substitute government-estab- lished employment terms for those negotiated by the par- ties through “free collective bargaining,” but it also under- mines that bargaining in at least two ways. First, the Ti- idee Products remedy would deter employers from agree- ing to wage increases in bargaining conducted after a bar- gaining order is enforced “for fear that the Board would give them retroactive effect in devising a backpay formula for the past refusal to bargain.”54 Second, any determina- tion by the Board that employees “would have” received a particular term or condition of employment through good-faith bargaining would effectively serve as a floor for what the union would agree to. After all, how could a union reasonably explain why it would ever agree to any- thing less? In these ways, the Tiidee Products remedy would undermine the very process of free collective bar- gaining the Act was designed to promote. The Tiidee Products remedy is also inequitable. As the Board correctly noted in Ex-Cell-O, the remedy would in practice weigh most heavily on employers who are 51 Tiidee Products, 194 NLRB at 1235 (emphasis added). 52 See, e.g., How to Promote Sectoral Bargaining in the United States, https://www.americanprogressaction.org/article/promote-sectoral-bar- gaining-united-states/ (last visited 10/28/22) (“Policymakers should sup- port the use of contract extension, which would spread the gains from union contracts to similarly placed workers such as through the expanded use of prevailing wage laws and the creation of a new policy to promote master contracts. . . . [T]he basic concept is that once a union contract is considered to represent a sufficient number of workers in an industry or region, its wage and benefit standards are extended through official gov- ernmental action to cover all workers in that industry and region, regard- less of whether or not the workers are part of the union.”). The Tiidee Products remedy also closely tracks the key change that the PRO Act, if it became law, would make to Sec. 8(d) of the Act: mandatory first- contract arbitration, with arbitrators empowered to impose contract terms based in part on “the wages and benefits other employers in the same business provide their employees.” See H.R 842, Protecting the Right to Organize Act of 2021, Sec. 104(4). 53 See Carbon Fuel Co. v. UMWA, 444 U.S. 212, 218 (1979) (One of the primary policies the Act is designed to promote is “the policy of free prepared to bargain in good faith and who evidence a will- ingness to compromise on terms to which the union might also agree. An employer that is adamantly opposed to the union, in contrast, would escape liability precisely be- cause the evidence would show that there was no prospect of the parties ever reaching agreement.55 The Tiidee Prod- ucts remedy also seemingly contemplates that collective bargaining can only result in improvements to employees’ terms and conditions of employment. If the record were to show that the parties would have agreed to a reduction in a particular term as part of an overall agreement, would the employer be authorized to implement that change without further bargaining? If not, on what grounds? The General Counsel may be of the opinion that the Ti- idee Products remedy is the only means by which a refusal to bargain may be effectively remedied. But the same con- tention was advanced, and rejected by the Court, in H. K. Porter v. NLRB with respect to the bargaining remedy at issue there. As the Court stated, [i]t may well be true, as the Court of Appeals felt, that the present remedial powers of the Board are insuffi- ciently broad tocope with important labor problems. But it is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective-bargaining agree- ments and compulsory submission to one side’s de- mands. The present Act does not envision such a pro- cess.56 In this case as well, if the Tiidee Products remedy is neces- sary to effectively address refusals to bargain, Congress, not the Board, must adopt it. CONCLUSION To avoid election delays and thereby protect unions from the dissipation of support that would result if collective bargaining. . . . [T]he parties’ agreement primarily determines their relationship. If the parties’ agreement specifically resolves a partic- ular issue, the courts cannot substitute a different resolution.”) (internal citations omitted). See also Kate Andrias, The New Labor Law, Yale Law Journal 126, at 6 (2016) (advocating for sectoral bargaining but candidly acknowledging that the Act does not provide for it), https://www.yalelawjournal.org/pdf/a.2.Andrias.100_sa4cc96k.pdf (last visited 10/28/22). 54 Tiidee Products, 194 NLRB at 1235. 55 Ex-Cell-O Corp., 185 NLRB at 110 (“[I]t is only the employer of such good will as to whom the Board might conclude that he, at least, would have given his employees a fair increase, who can be made subject to a financial reparations order . . . .”); see also Intern. Union of Elec., Radio & Mach. Workers v. NLRB (Tiidee Products), 426 F.2d at 1253 (recognizing that the Tiidee Products remedy would be inappropriate “under circumstances in which the parties would have been unable to reach agreement by themselves”). 56 H. K. Porter Company, Inc. v. NLRB, 397 U.S. at 109. ARRMAZ PRODUCTS INC. 11 representation-case decisions were directly reviewable, Congress designed the Act to make those decisions re- viewable only through subsequent unfair labor practice proceedings.57 Forcing employers who wish to contest an otherwise-unreviewable certification in federal court to do so at the peril of significant financial liability if they lose would be contrary to this statutory scheme and would vi- olate their due process rights. While I am sympathetic to the General Counsel’s concern that some certification- testing employers may refuse to bargain simply to obtain the delay that judicial review of a representation-case de- cision will afford, the Tiidee Products remedy is an imper- missible means of addressing that issue. I recognize that there are also employers with estab- lished bargaining obligations who fail or refuse to bargain without any good-faith justification. Some of those em- ployers may well calculate that doing so is worth the risk of being found to have violated the Act when the conse- quence is nothing more than an order to bargain in good faith in the future. The Board should do everything in its power to prevent such unlawful conduct and to remedy it when it occurs. To the extent that the Board wishes to consider modifying its existing remedies in cases of that type, it should do so in a case where such facts are pre- sented. They are not presented here. But even in those circumstances, the Board’s remedial powers do not in- clude the Tiidee Products remedy, for all the reasons ex- plained above. That issue has been decisively resolved by well-reasoned precedent, and no persuasive reason to re- visit that precedent has been shown. Accordingly, I re- spectfully dissent from the majority’s decision to sever the issue for further consideration. Dated, Washington, D.C. December 6, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. 57 See Boire v. Greyhound Corp., 376 U.S. at 478. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with the International Chemical Workers Union Council of the United Food and Commercial Workers Interna- tional Union, AFL–CIO, CLC (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: All full-time and regular part-time production operators, sulfonation operators, railside operators, small blends and warehouse operators, maintenance technicians, electrical and instrumentation technicians, custodians, and parts clerks employed by us at the Mulberry, Florida facility, excluding all other employees, professional la- boratory technicians, quality assurance laboratory tech- nicians, engineers, office clerical employees, managers, guards, and supervisors as defined in the Act. ARRMAZ PRODUCTSINC. The Board’s decision can be found at www.nlrb.gov/case/12-CA-294086 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.