Tuesday, November 20, 2007
The NLRB has long been criticized for its dwindling number of Gissel bargaining orders (see this post on the AFL-CIO's recent ILO complaint making this point, among others). Under a Gissel II order (no Virginia, there really aren't Gissel I orders any more), an employer that committed enough ULPs to undermine the ability to hold a fair election must bargain with a union that once had evidence of majority support, but cannot show such support at the time of the order. The Board deserves some of the blame for the dearth of these cases, but the other side of the coin is that the courts have been extraordinarily hostile to Gissel orders for quite some time. It was therefore heartening--shocking may be a better description--to see not only the current Board issuing a Gissel order, but also to see a court not known as being particularly union-friendly enforcing the order. That's exactly what happened in a recent Fifth Circuit decision, Cal. Gas Transp. v. NLRB, 06-60871 (5th Cir. Nov. 7, 2007).
The court relied the unit's small size, the severity of the ULPs, and high-level officials' anti-union activity in agreeing with the Board that traditional remedies could not ensure a fair election. One interesting issue in the case that the court did not address was the Board's reliance on ULPs committed in Mexico and whether the Board had jurisdiction over those actions. According to the court, the foreign conduct wasn't necessary to support the order in the cases. However, the question of the Board's ability to consider or govern the foreign activities of U.S. employers and employees is a serious one. The Board and courts have already begun struggling with the issue and its only likely to become more relevant as the economy becomes increasingly global in nature.