Want to Challenge an NLRB Election? “Refusing to Bargain” is the Only Option — and it’s a Narrow One.

Want to Challenge an NLRB Election? “Refusing to Bargain” is the Only Option — and it’s a Narrow One.

In Alaska Tanker Company, LLC (374 NLRB No. 112, May 19, 2026), the Board issued summary judgment against a maritime employer that refused to bargain with the International Organization of Masters, Mates & Pilots.

The backstory is a classic “test-the-certification” maneuver. After the union won a mail-ballot election among the company’s licensed deck officers and was certified in January 2024, the employer declined to recognize or bargain — arguing the election was held for an inappropriate unit. Because there’s no direct appeal of a representation decision, the only way to get a court to review it is to refuse to bargain, draw an unfair labor practice charge, and appeal from there.

The problem: that strategy only buys review of the unit question — and only if you have new evidence or special circumstances. The employer had neither. Every representation issue had already been litigated. So the Board found the refusal unlawful under Section 8(a)(5) and (1).

The company also threw the typical kitchen sink of constitutional arguments at the Board — separation of powers, removal protections, Article III, Seventh Amendment jury rights, the major questions doctrine. The Board rejected them all in a footnote, noting the employer offered “no explanation or evidence” to back the bare assertions.

The result: an order to bargain, post notices (including aboard each vessel), and certify compliance.

Takeaway: Testing certification is legitimate — but raise it only when you have a genuine, preserved unit issue. Unsupported constitutional broadsides won’t move the needle.