In addition to trying out new and extraordinary legal theories, the general counsel of the National Labor Relations Board has leaned on existing theories to extend her aggressive enforcement approach.

One such remedy is the so-called Gissel bargaining order. It's a remedy that takes its name from the U.S. Supreme Court's 1969 ruling in NLRB v. Gissel Packing Co.[1] and provides that, in some cases involving egregious unfair labor practices, a union may be certified even in the absence of a union election or, remarkably, even if the union loses an election.

This article outlines the history behind the Gissel rule and its recent application.

The most recent use of this rare order occurred in April in a case named IBN Construction Corp. NLRB judge Kenneth W. Chu's decision to issue a Gissel order in that case is notable as a reminder that unfair labor practices may not just result in traditional make-whole or cease-and-desist remedies but could also lead to the certification of a union in the workplace.

The History of Gissel Orders

In most cases, a union must win an election by a majority vote for the NLRB to certify it as the employees' bargaining representative. However, as with most rules, there are exceptions.

One important exception is that the NLRB may certify a union based on the employer's egregious violations of federal labor law close in time to the election. These certifications are commonly referred to as Gissel bargaining orders.

The theory behind Gissel bargaining orders is that an employer's violations during the election campaign have the potential to render the NLRB's traditional remedies — usually a cease-and-desist order and a rerun of the election — ineffective and toothless.

To obtain a Gissel order, the NLRB must demonstrate: (1) that the union at one time had majority support of the union, and (2) that the employer's unlawful conduct diminished that support in the minds of employees.

If that two-part test is met, the NLRB can simply order that the union is the employees' certified bargaining representative and order the employer to recognize and bargain in good faith with the union. Therefore, in theory at least, the certification and bargaining order is based on the employees' majority support of the union, which had been thwarted by the employer.

Gissel bargaining orders are reserved for rare occasions. They may be granted only if the employer's conduct meets one of two possible categories.

According to the Supreme Court's opinion in Gissel, category 1 cases involve exceptional, outrageous and pervasive unfair labor practices on the part of the employer. Category 2 is reserved for lesser actions that "still have the tendency to undermine majority strength and impede the election processes."[2]

In either category, the NLRB must demonstrate that the employer's conduct eroded majority support.

Accordingly, the conduct at issue in a Gissel case must involve something more than a technical violation of the National Labor Relations Act. Violations that may lead to a Gissel order include employee terminations and interrogations, decreases in wages and work opportunities, discussion of the futility of organizing, and other similar conduct, usually committed by the employer as part of an overall scheme or plan.

As described by the NLRB in its 2016 Hogan Transports Inc. ruling, the agency reviews the employer's conduct in light of the
seriousness of the violations and the pervasive nature of the conduct … the number of employees directly affected by the violations, the size of the unit, the extent of the dissemination among employees, and the identity and position of the individuals committing the unfair labor practices.[3]

Essentially, the chances for a Gissel bargaining order increase based on the extent of serious misconduct, the degree of application of that misconduct to the entire workforce, and the position of authority of those executing the unfair labor practices.

In addition to the nature and scope of the employer's conduct, the NLRB and appellate courts also scrutinize the overall circumstances surrounding Gissel bargaining orders. When considering certification without an election, or even an election outcome in the employer's favor, courts often seek to ensure that unions are not foisted upon employees against their will.

For example, in Novelis Corp. v. NLRB in 2018, the U.S. Court of Appeals for the Second Circuit denied enforcement of a Gissel bargaining order.[4] Even though the employer was found by the NLRB to have committed some serious unfair labor practices, the court noted that employee turnover was high in the years after the election and the NLRB had already obtained an injunction in federal court that provided for remedial actions to mitigate the employer's unfair labor practices.

Overall, the court cautioned the NLRB against imposing a union on employees who were not even employed when the unfair labor practices had occurred and from failing to account for circumstances that would tend to mitigate any decrease in union support as a result of employer conduct.

The IBN Construction Case

With this background in mind, the recent case involving IBN Construction illustrates how the NLRB recently used a Gissel bargaining order, and the details may hold NLRB litigation lessons for employers.

In the IBN Construction case, the NLRB enforced[5] the administrative law judge's order that imposed a Gissel bargaining order. The employer in that case was organized by a building trades union that ultimately withdrew its petition for election with the NLRB. Around the same time, the NLRB sought and obtained an injunction against the employer in the U.S. District Court for the District of New Jersey.

In the lead-up to the planned election, which never occurred, the employer was found by the ALJ to have terminated employees, threatened employees' immigration status, threatened lawsuits against employees, told employees about the futility of organizing, and engaged in other similar conduct primarily undertaken by senior leadership of the company.

The ALJ found that the employer's conduct was a hallmark of serious unfair labor practices that warrant a Gissel bargaining order.

The ALJ scrutinized the union's claim for majority support. Despite finding that only 25 of 49 employees had signed authorization cards — a razor-thin margin — the ALJ went on to find that the employer's conduct had caused the decline in support for the union.

Further, the ALJ found that the employer would continue to engage in its misconduct and that the traditional remedies of a cease-and-desist order and an election would be futile to reset the conditions necessary to hold an election. On these grounds, the ALJ agreed with the NLRB general counsel's position and entered a Gissel bargaining order, even though there had never been an election in the case.

As this case was never appealed by the employer to the NLRB, there will be no NLRB or court review of the Gissel bargaining order. However, had it been appealed, it would certainly not go unnoticed to a reviewing appeals court that an injunction had been issued by a federal district court prior to the ALJ's decision.

That injunction required the employer, among other things, to:

Cease and desist from unlawful conduct;
Read aloud to employees the text of the injunction;
Allow the union equal time to address the employees about unionization in general; and
Recognize and bargain with the union.

A broad injunction like this would presumably give pause to a reviewing court before upholding a Gissel order as necessary to support employee free choice in union elections.

Similar to the decision in the Novelis case, it is likely that a court reviewing the totality of the IBN case would not just mechanically review the unfair labor practices and the extent of employee support for the union prior to the election.

Rather, the entire circumstances of the matter — especially including the issuance of a federal court injunction that at least partially remedied any unfair labor practices — would be relevant upon review and reduce the likelihood that the Gissel bargaining order would be upheld.

Therefore, employers facing aggressive legal action from the NLRB general counsel should be mindful of the limitations of such actions, as well as the availability of court review of NLRB orders. Given the pace of litigation both before the NLRB and in the federal appeals courts, the general counsel's actions and theories have not yet been exposed to full appellate review.

The aggressive enforcement by the general counsel may yet result in changes or enhancements to the law, but Gissel bargaining orders have been subject to NLRB and court review for more than 50 years. Employers facing possible Gissel bargaining orders should be conscious of the legal parameters of Gissel and how courts have applied the Supreme Court's holding in this seminal case.

Employee free choice in union elections is the proper standard, and the will of the majority should not be impeded except in the most egregious circumstances.

[1] NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

[2] Gissel, 395 U.S. at 614.

[3] See Hogan Transports, Inc., 363 NLRB 1980, 1986 (2016).

[4] Novelis Corp. v. National Labor Relations Board, 885 F.3d 100 (2d Cir. 2018).

[5] The NLRB adopted the findings and conclusions of the ALJ because the employer did not appeal the decision to the NLRB by filing exceptions to the ALJ decision.

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