Gissel Case and Bargaining Orders in Labor Law, Slides of Labour Law

Download Gissel Case and Bargaining Orders in Labor Law and more Slides Labour Law in PDF only on Docsity! GISSEL QUESTIONS • Can a union establish a bargaining obligation without an election, taking into account 1947 amendments? • Are authorization cards so inherently unreliable that they can never indicate employee desires? – What is employer’s obligation when confronted with a card-based recognition request by a labor organization? • Can a bargaining order be issued where the union has demonstrated a majority and employer UFLP’s have made a fair election unlikely? • Were statements by employer linking unionization and employee jobs within Section 8© free speech provision Docsity.com • “Under the Board's current practice, an employer's good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength.” (Board practiced approved in Gissel, 395 U.S. 575, 594 ) Docsity.com From NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14 (D icta). . . . While refus ing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherw ise, in "exceptional" cases marked by "outrageous" and "pervas ive" unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of "such a nature that their coercive effects cannot be elim inated by the application of traditional remedies, w ith the result that a fair and reliable election cannot be had." NLRB v. Logan Packing Co., 386 F.2d 562, 570 (C. A. 4th C ir. 1967); see also NLRB v. Heck's, Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a 8 (a) (5) violation or even a barga ining demand, when that was the only ava ilable, effective remedy for substantial unfa ir labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U.S. App. D.C. 215, 376 F.2d 770 (1967); J. C. Penney Co., Inc. v. NLRB, 384 F.2d 479, 485-486 (C. A. 10th Cir. 1967) The only effect of our holding here is to approve the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. . . . SOURCE: http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=395&invol=575 Docsity.com CHARLOTTE AMPHITHEATER CORPORATION D/B/A BLOCKBUSTER PAVILION v. NATIONAL LABOR RELATIONS BOARD D.C. Circuit, April 30, 1996 “In adopting the ALJ's findings, the Board elaborates on the asserted need for a bargaining order. It begins on an unpromising note: . . . The Board continues to adhere to the view that the determination whether a Gissel bargaining order is warranted in a given case should be made on an evaluation of the circumstances at the time the unfair labor practices were committed. 314 N.L.R.B. at 129. We have repeatedly called the Board to task for its intransigent refusal to accept and act upon our instructions that the appropriateness of a bargaining order must be assessed as of the time it is issued. See, e.g., Avecor, 931 F.2d at 936-37; Pedro's, Inc., 652 F.2d at 1012. Nor have we been alone. See Cell Agricultural, 41 F.3d at 397-98 ("For over two decades, the Board has maintained a running feud with the courts of appeals regarding whether changed circumstances after an employer's unlawful conduct, such as employee turnover or the passage of time, which tend to erode majority support for a union, are relevant to the Board's decision to impose a bargaining order."); J.L.M., Inc. v. NLRB, 31 F.3d 79, 84 (2d Cir. 1994) ("Despite our repeated pronouncements that we consider turnover a relevant consideration militating against the issuance of a bargaining order, turnover has been conspicuously absent from the Board's analysis in these types of cases.")." Given the changes in its own membership, it may well be that the Board is devoid of an institutional memory; but this court is not. Perhaps it believes it can wear us down; after more than twenty years,it should have learned that it cannot. As a consequence of its stubborn refusal to accept the holdings of virtually every circuit that has considered the matter, it has squandered a vast amount of our time as well as its own and has caused delays in the ultimate resolution of cases that cannot be laid at the feet of recalcitrant employers. If the Board continues to disagree with us, it is of course free to seek Supreme Court review.” Cited approvingly in NLRB v. USA Polymer Corp., 5th Cir, No. 00-60173, November 6, 2001. Docsity.com • Cogburn Health Care v. NLRB, 437 F.3rd 1266, 179 LRRM 2065, DC Cir., 2006 • “This court has, on numerous occasions, directed the Board to provide a reasoned analysis when considering the imposition of a bargaining order. . . . The required analysis must contain “an explicit balancing of three considerations: (1) the employees’ §7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.”. . . Furthermore—and most relevant here—we have made it clear that the Board must consider the appropriateness of a bargaining order at the time the order is issued. . . .The Board may have undertaken a thorough Gissel analysis with respect to the information it had at the time of its original order in 2001. . . . But its analysis failed when Cogburn proffered evidence of “changed circumstances.” (179 LRRM 2070, all citations omitted) Docsity.com • Excerpt from Majority Opinion. “In conveying its customers’ concerns about possible unionization, the Respondent's June 30 letter contained no threat of reprisal. Furthermore, the Respondent provided objective material reflecting its customers’ concerns. . . . The material consisted of written inquiries from large customers such as Nestle, Nabisco, Kraft, and Minute Maid, asking whether the Respondent's products were produced in unionized plants. Some of the inquiries specifically raised concerns about “possible interruption in receipt of materials” and “continuity of supply” in the event of a work stoppage. . . . That Respondent's customers routinely and generally ask their suppliers about their contingency plans in the event of union-related supply disruptions underlines just how much of a concern such disruptions really are for those customers. Docsity.com • Excerpt from Dissenting Opinion. “(T)he correspondence belatedly offered by the Respondent simply does not support the Respondent's claims. The correspondence inquired about which of the Respondent's plants were unionized, the termination dates of collective-bargaining agreements, and any history of work stoppages. As the judge found, these were no more than routine business inquiries manifesting a customer interest in continuous product flow in the event of a strike. Nothing in any of these documents reflected that the Respondent's customers held a “negative” view of unionization. The correspondence contains no hint that the Respondent's customers would walk away simply because employees unionized. Indeed, Sam Smith, the Respondent's site director, whose testimony introduced the documents into evidence, indicated that in his 19 years with the Company he was not aware that the Respondent had ever lost any customers because unionized plants manufactured some of its products.” Docsity.com