Normally, a union must obtain a majority of votes cast by employees in an election to be certified as the employees’ bargaining representative. However, if the employer has engaged in serious violations of federal labor law during a union organizing drive, the NLRB can order it to immediately recognize and bargain with the union even if the union lost the election. These orders are commonly referred to as “Gissel” bargaining orders due to a U.S. Supreme Court of that name.
In a recent case, a federal appeals court emphasized that Gissel bargaining orders should only been issued in the rarest of cases where the Board’s traditional remedies – usually ordering a re-run election – are rendered ineffective by the employer’s conduct. Novelis Corp. v. NLRB, No. 16-3076 (2nd Cir., March 15, 2018). In Novelis, the Board found that, in the run up to the election, the employer had demoted a union supporter, threatened job loss if employees unionized, and increased certain holiday pay. When the election was held, the Union lost in a vote of 287 to 273 in favor of the Company. The Board, in a decision rendered two years after the election, found that these violations were serious enough to issue a Gissel bargaining order against the Company, ordering it to recognize the Union and commence bargaining.
Now, the Second Circuit has refused to enforce the Board’s Gissel Order. The Court noted that the Board’s decision came two years after the election and the extent of employee turnover (and management turnover) would mean that about 33% of the employees had no connection to the election campaign and employer violations. In all cases, a Gissel bargaining order must be supported by some showing that the union had the support of a majority of employees in the petitioned-for unit at some point prior to the election. Thus, the Court found that the balancing act of preserving employee free choice by disregarding the election results could not be maintained where the workforce had undergone such change.
In addition, the Court found that the Board did not consider the effect of its own efforts to remedy the employer violations. The Board had sought a “10(j)” injunction against the Company in federal district court that resulted in an Order for the Company to remedy the violations, which even included having a plant manager read the Court notice aloud to all employees. According to the Court, the Board failed to consider the effect of these remedial steps taken by the Company on employee free choice in a potential re-run election.
Novelis serves as a reminder that, when considering a Gissel bargaining order, the Board is supposed to only apply the remedy in rare cases where employee free choice can only be furthered by ordering the employer to bargain irrespective of election results.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.