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🗞️ No Bargain, No Penalty: NLRB Rules Against Expanded Damages in Nexstar Union Dispute

The NLRB ordered Nexstar to bargain with its WROC-TV union but declined to impose financial penalties on the broadcaster, reaffirming a 55-year-old precedent that limits remedies in refusal-to-bargain cases.

onthelaborfront

onthelaborfront

— 3 min read
🗞️ No Bargain, No Penalty: NLRB Rules Against Expanded Damages in Nexstar Union Dispute

When employees at WROC-TV, Rochester's CBS affiliate, voted 29 to 19 in February 2023 to join the National Association of Broadcast Employees and Technicians, a unit of the Communications Workers of America, they believed recognition would follow quickly. It did not.

Nexstar Media Inc., the largest local television station owner in the country, declined to acknowledge the result. The company argued that certain producers it had classified as members of management were improperly included in the bargaining unit, a position the National Labor Relations Board rejected. In August 2024, the NLRB found Nexstar in violation of the National Labor Relations Act and ordered the company to come to the table.

But the more consequential fight was playing out in the background. Federal labor law has long given employers a narrow but meaningful escape valve: because union certifications cannot be challenged directly in court, a company that believes a certification was improper must refuse to bargain in order to trigger the judicial review process. The catch, for workers, is that this legal maneuver can stretch on for years while the union waits. The question before the Board was whether that delay should cost an employer anything beyond an eventual bargaining order.

The answer, under a 1970 precedent known as Ex-Cell-O Corp., has always been no. That ruling held that requiring employers to compensate workers for wages and benefits they might have secured through timely bargaining would exceed the Board's authority and effectively penalize companies for exercising a lawful right. For more than five decades, labor advocates have argued the rule creates a perverse incentive, making delay a rational business strategy with little downside.

Those advocates came close to changing it. Under the Biden administration, NLRB General Counsel Jennifer Abruzzo made overturning Ex-Cell-O a priority, and the Board preserved the question in multiple cases, including Nexstar's, for separate consideration. The effort ultimately fell short. On February 26, 2026, a reconstituted Board, now operating with a two-to-one Republican majority after the January swearing-in of Members James Murphy and Scott Mayer, issued its decision in Longmont United Hospital and reaffirmed Ex-Cell-O. The majority held that compensatory damages would impermissibly burden employers' right to seek judicial review and risk compelling, rather than merely encouraging, bargaining outcomes the Act explicitly leaves to the parties.

One month later, on March 26, 2026, the Board applied that ruling to Nexstar, declining the additional remedy and effectively closing the case on damages. Nexstar must bargain with the union, but under the Board's decision faces no financial liability for the period during which it did not.

Member David Prouty, the lone Democrat on the current Board, dissented. In his view, the majority's reasoning leaves workers bearing the full economic cost of litigation delays in cases where an employer is ultimately found to have violated the law. The debate over Ex-Cell-O is not entirely settled: new General Counsel Crystal Carey has signaled the agency will not pursue its reversal under the current administration, but the underlying tension between an employer's right to seek judicial review and the remedies available to workers during that process is likely to resurface the next time the Board's composition shifts.

Key Points

  • WROC-TV employees voted to unionize in February 2023; Nexstar refused to recognize the result, contesting the eligibility of producers it classified as management.
  • The NLRB found Nexstar violated the National Labor Relations Act in August 2024 and ordered it to bargain with NABET-CWA.
  • The Board separately reserved the question of whether to impose financial "make-whole" remedies by overturning the 1970 Ex-Cell-O Corp. precedent.
  • On February 26, 2026, the newly constituted NLRB declined to overrule Ex-Cell-O in Longmont United Hospital, reaffirming that refusal-to-bargain cases do not trigger compensatory damages.
  • On March 26, 2026, the Board applied that ruling to Nexstar, declining the additional remedy and closing the damages question.
  • Member Prouty dissented, arguing employers should be required to financially compensate employees for provable economic harm caused by unlawful bargaining delays.
  • Nexstar separately sought to move enforcement proceedings to the Fifth Circuit; a Second Circuit panel ruled the case should remain in New York.
  • The outcome preserves a legal framework critics say allows employers to delay union bargaining with limited financial risk.

Primary Source Author: Members Prouty, Murphy, and Mayer, National Labor Relations Board

Primary Source: Nexstar Media Inc., 374 NLRB No. 78 (March 26, 2026), Supplemental Decision and Order, Case 03-CA-332930

Primary Source Link: https://www.nlrb.gov/cases-decisions/weekly-summaries-decisions/summary-of-nlrb-decisions-for-week-of-march-23-27-2026

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