Recent NLRB Decisions

NLRB: Rare "Gissel" Order, MOU Not A Bar To Decertification Petition is an interesting December 5, 2008 New York Law Journal article that discusses several recent NLRB decisions. In describing one such important case, the article states:

In American Directional Boring Inc., 353 NLRB No. 21 (2008), the board issued the extraordinary remedy of a Gissel bargaining order, requiring the employer to bargain with the International Brotherhood of Electrical Workers (IBEW), absent an election, in light of the "egregiousness and pervasiveness" of the company's unfair labor practices.

As the board noted, the Supreme Court in NLRB v. Gissel Packing Co., 395 US 575 (1969), recognized that such a remedial bargaining order is appropriate in "'exceptional' cases . . . marked by unfair labor practices so 'outrageous' and 'pervasive' that traditional remedies cannot erase the coercive effects," thus rendering a fair election impossible.

Here, the employer was found to have discharged 13 union supporters (approximately 22 percent of the bargaining unit), many of whom were leaders of the organizing campaign, and created fake disciplinary reports in support of their terminations. The company also was charged to have threatened job losses, increased subcontracting of work and even company shutdown if the IBEW's organizing effort was successful; threatened discipline for wearing union pins; and created an impression of surveillance of employee activities. The board found such conduct was "in the realm of those exceptional cases warranting a [Gissel] bargaining order."

The board rejected arguments that a Gissel order would be inappropriate because of turnover of management and the passage of time (almost five years) since the unfair labor practices occurred. It found that although the manager who purportedly committed many of the violations had left, his actions were in accordance with the anti-union sentiment of the company's owner, and that the passage of time "will not dissipate the coercive effects of the [employer's] unlawful coercive conduct."

Mitchell H. Rubinstein