Minnesota Court Denies National Labor Relations Board’s Bargaining Order Request

In hallmark violations of the National Labor Relations Act, a manager told employees that their co-workers took a “huge risk” by supporting the union and that their audacity angered him. The manager also said that “by doing all of this union crap you’ve thrown us back almost all the way to square one” warning that their decision on unionization “will determine the future direction of the business.” The division president likewise told the workers just two days before the election for union representation that other plants could absorb the work performed by their plant. He also indicated that even if the union was voted in, he would not negotiate with it.

After losing the secret ballot election, the union sought relief in the form of a bargaining order. Bargaining orders are levied when a Company’s unfair labor practice charges are so egregious that they permanently taint the ability for a fair election, and rather than hold an election, the Company is automatically unionized and ordered to bargain with the un-elected union for a contract.

Bargaining orders are an exemplary remedy that should be used sparingly. The judge here ruled a bargaining order would not be appropriate because the alleged unfair labor practices paled in comparison to what traditionally results in a bargaining order. Employers have a lot of leeway in committing unfair labor practices before a bargaining order is imposed; but once imposed, a company is immediately unionized. So employers should be well informed and make calculated decisions about engaging in unlawful conduct during union organizing drives. Some unlawful conduct can have little repercussions. A lot of unlawful conduct can result in a union. This reminds me of a phrase I once heard: Pigs get fat, hogs get slaughtered.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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