Tuesday, July 1, 2008

Fourth Circuit Approves Gissel Bargaining Order

Nlrb 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.



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Given the split decision, what do you think are the chances for en banc review?

Posted by: Josh | Jul 1, 2008 8:54:39 PM

As the third attorney in succession to represent a company which bought another in the midst of a bitterly-fought union organizing campaign, I had the dubious pleasure of seeing the Fourth Circuit enforce a Gissel bargaining order against a successor employer. The case is General Wood Preserving Co. v. NLRB, 905 F.2d 803, cert. denied, 498 U.S. 1016 (1990). Even two decades ago, if you drew the wrong panel, you couldn't count on employer-friendliness. The decision never got the sort of attention it deserved - which, for selfish reasons, is just fine with me. But it arose in an era when so-called "hallmark" violations were enough to trigger a Gissel order, and many appellate courts found that just fine.

I'd say en banc review is certainly worth trying, even if the court has changed over the years. Then, perhaps there would be a cert-worthy issue.

Posted by: Charlie Edwards | Jul 2, 2008 6:22:05 AM

A couple of years ago, I'd bet on en banc review, but with the changes on the court, such reviews have become much less common. I'd go for it if I were the company lawyer, but if I had to guess, I'd say that the court leaves the panel decision alone despite the dissent. The panel repeatedly characterized its holding a deferring to the Board, which is a good way to lower the chances of review.

The point about the possibility of an employee-friendly panel is apt. The first case I ever argued was in the Fourth Circuit--and only because the opposing lawyer thought it would be even more friendly than the Eleventh Circuit, where all the facts took place. Much to my pleasure, the only two active Democratic judges on he court at the time ended up on the panel.

Posted by: Jeff Hirsch | Jul 2, 2008 7:04:37 AM

I think en banc consideration is unlikely. The 4th Circuit is still feeling the hangover from its controversial en banc bender of the 90s, which has made it tougher to get judges confirmed. One of the ways they keep on top of the caseload, despite the numerous judicial vacancies, is to reject just about every rehearing or en banc petition summarily.

The amazing thing is that the 4th is still the quickest court of appeals in terms of deciding cases. And they manage to do it without sacrificing orals arguments and forcing litigants to submit cases on the briefs.

Posted by: jay | Jul 7, 2008 7:03:09 AM

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