Text-Book Refusal to Bargain Case and Procudures

The NLRB just ordered Kuraray America to bargain with a unit of lab analysts it refused to recognize. The case is a textbook run of the “technical refusal to bargain” playbook.

Last October, lab analysts at Kuraray’s La Porte, Texas plant voted in a self-determination election to join an existing production and maintenance unit represented by UFCW Local 900C.

Kuraray refused to bargain. Its argument: the lab analysts didn’t share a community of interest with production workers, so the unit wasn’t appropriate.

On May 22, 2026, the Board granted summary judgment against Kuraray and ordered it to bargain.

Here’s why this matters. You can’t appeal an NLRB election certification straight to a federal court. The only path is to refuse to bargain, get hit with an 8(a)(5) unfair labor practice charge, let the Board find against the employer, and enter an order — then take it up on review to the Court of Appeals. That’s what Kuraray is doing.

Kuraray also threw constitutional claims at the wall — Fifth and Seventh Amendment, Board member removal protections, separation of powers. The Board cited NLRB v. Jones & Laughlin Steel (1937) and Atlas Roofing (1977) and rejected every one.

One quiet employer win buried in a footnote: the General Counsel asked the Board to extend the certification year under Mar-Jac Poultry. The Board said no — because this involved a self-determination election. Per Winkie Mfg. and White Cap, that remedy doesn’t apply.

Now Kuraray heads to the Circuit Court. The constitutional arguments don’t win at the Board, and never have. We’ll see what the courts do with the legal arguments.