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EMPLOYMENT LAW — 4/11/07

NLRB need not articulate its reasoning for not issuing a Gissel bargaining order

In order to support its decision to issue a Gissel bargaining order as a remedy to an employer's unfair labor practices--a remedy that impacts employees' free choice of a bargaining representative in a representation election--the National Labor Relations Board must clearly articulate an explanation for that decision. However, in a question of first impression, the Ninth Circuit Court of Appeals ruled that the NLRB did not clearly abuse its discretion under the National Labor Relations Act when it gave only a conclusory explanation for choosing not to adopt an administrative law judge's recommended remedy of a Gissel order (Steelworkers v NLRB, 9thCir, April 2, 2007).

Unfair labor practices. Tower Industries, a manufacturer of machine parts, faced a union organizing drive among a unit of 91 employees. Fifty-seven of those employees signed cards authorizing the union to represent them in collective bargaining. On the day of a union organizing meeting, Tower fired two employees because of their support of the union organizing drive. Over the ensuing two months, Tower disciplined a third employee because of his union support and threatened a fourth employee with reprisal if he supported the union. The employer also removed union literature from posting areas while permitting non-union notices to remain posted. Ultimately, the union lost the representation election.

After finding that Tower's actions constituted unfair labor practices, the administrative law judge (ALJ) recommended that the employer be ordered to cease and desist its anti-union activities, reinstate the two fired employees, and post a notice of union-related rights in all posting areas. The ALJ also recommended that the Board issue a Gissel order requiring Tower to recognize and bargain with the union. A three-member panel of the NLRB adopted the ALJ's recommended findings of fact, conclusions of law and most recommended remedies; however, it disagreed that a Gissel order was warranted, finding that the Board's traditional remedies were sufficient to address Tower's misconduct and ensure that a fair rerun election could be held.

Extraordinary remedy. A determination of the appropriate remedy for an unfair labor practice is for the NLRB and not the courts to make, the Ninth Circuit observed as an initial matter. The Board's discretion in the selection of appropriate remedies is exceedingly broad. And whether a Gissel order is required to rectify an employer's unfair labor practices is precisely the kind of narrow policy decision reserved to the knowledge and experience of the Board.

In this instance, the union argued that because clearly articulated reasoning is required to issue a Gissel order, then a clearly articulated reasoning should be required if the ALJ recommends a Gissel order and the NLRB chooses not to issue one. However, the appeals court rejected this contention. A Gissel order is an "extreme remedy" warranted only under certain unusual scenarios. "The fact that courts require greater reasoning when the Board decides to issue a Gissel order is inapposite to the Board's decision instead to order the default remedy" of a rerun election, the appeals court said. When the Board issues the standard remedy, the justification and need for the safeguard of detailed, clear articulation of the Board's rationale is absent.

Accordingly, the Ninth Circuit held the NLRB's choice of remedies was not a clear abuse of discretion. The union's petition for review of the Board order was denied.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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