The Board Issues a Gissel I Bargaining Order

Nope, you're not imagining things, the NLRB really issued a Gissel I bargaining order.  (Gissel bargaining orders are orders to bargain with a union that may no longer have majority support because of serious employer ULPs that have poisoned the possibility of a fair election.  The Court in Gissel recognized the possibility of very serious ULPs that justify orders even where the union has not had a recent showing of majority support--Gissel I--or somewhat less serious, but still bad, ULPs that justify orders--Gissel II orders--where the union had shown majority support at one point, but then may have lost it while the ULPs were happening).  Based in large part to resistance by the courts of appeals, the Board has essentially abandoned Gissel I orders.  But, as further proof that a two-member Board has its benefits, it has just issued a Gissel I in American Directional Boring.  The summary by BNA's Daily Labor Report (subscription required):

    The National Labor Relations Board Sept. 30 ordered a St. Louis cable installation contractor to bargain with an International Brotherhood of Electrical Workers local as a remedy for the company's numerous unfair labor practices committed during a 2003 organizing effort.

    Adopting an administrative law judge's recommendation to issue a Gissel bargaining order, Chairman Peter C. Schaumber and Member Wilma B. Liebman found that the National Labor Relations Act violations, including the discharge of 13 union supporters making up 22 percent of the unit, are "sufficiently outrageous and pervasive" that "traditional remedies cannot erase the coercive effects, thus rendering a fair election impossible."

    The board rejected the arguments of ADB Utility Contractors Inc. that a bargaining order would be inappropriate because of turnover among management and the bargaining unit and the passage of time since the violations were committed. Although the general manager who committed many unfair labor practices has left the company, his actions were in accordance with the anti-union sentiment of the owner, who never has repudiated the unlawful activities, the board said. It found that much of the unit turnover is due to the company's illegal discharges and that ADB is partially responsible for delay in the case. . . .

    An ALJ found in May 2005 that ADB had committed numerous unfair labor practices. The company did not challenge the ALJ's findings that it impliedly threatened the loss of jobs, benefits, and bonuses and facility closure if the workers chose union representation, said it would be futile to select the union, urged union supporters to quit, threatened to discipline workers who wore union pins, threatened to subcontract out more work, and interrogated employees about their union activities and threatened them with unspecified reprisals, and created the impression of surveillance of union activities. . . .

    The board agreed with the ALJ that this case belongs in category I because of the seriousness of the violations and the pervasiveness of the conduct. The company's response to the organizing drive "was swift and severe, beginning only days after the initial organizational meetings," the board said. It found that the general manager in his April 15 speech committed "hallmark violations" by threatening job loss and plant closure and committed other serious nonhallmark violations such as stating with no factual basis that the company would lose its biggest customer. . . .

One word:  wow.  Perhaps someone can help me out, but I don't remember the last time there was a Gissel I bargaining order [UPDATE:  Dennis Walsh and his former Chief Counsel, Peter Winkler, have come up with one case--National Steel Supply, 344 NLRB 973 (2005)--and note that others said they were "at least" were a Gissel II].  The case does give a hint as to one of the many unique circumstances that led to a Gissel I here.  According to the DLR, "ADB's 'proffer of fraudulent documentary evidence further supports a bargaining order,' the board said. It found that the company offered as evidence at the hearing 'several fake disciplinary reports and photographs created to falsely charge union supporters with critical mistakes while on the job.'" Yeah, that really doesn't help.

Hat Tip:  Dennis Walsh

-JH