Tuesday, July 1, 2008
After seeing the Fourth Circuit's recent approval of a Gissel bargaining order in Evergreen America Corp. v. NLRB, I wondered how many times a court had approved such an order since the last time I posted on the topic eight months ago. Turns out my semi-hopeful title in that post was premature, because a quick search revealed no other cases.
In Evergreen, the court (2-1) deferred to the Board's determination that an affirmative bargaining order was necessary, despite the union's support falling from 62 signed authorization cards (out of 115 employees) pre-election, to a 52-61 election loss. The reason was a list of unfair labor practices that included a raise two days before the election (the amount was more than the increases over the previous three years), promotions intended to reduce union support, and unprecedented promises linked to a union loss. The case also involved questions about the authenticity of a few of the cards, which both the Board and court concluded were properly counted.
Beyond the uniqueness of the Board making a Gissel order, it is notable that the Fourth Circuit approved it. A sure sign that the court is no longer a lock for a conservative panel that it once was.