When employers commit unfair labor practices that disrupt pre-election conditions to the point where the National Labor Relations Board determines a free and fair election could not be held, an parties are ordered to bypass a secret ballot election and to immediately begin negotiating a first collective bargaining agreement. There are no automatic rules in determining when a Gissel Bargaining Order is required. The Board has issued bargaining orders when employers have:
- Closed one store in order to discourage union activity at several of its other stores that were also being organized;
- Partially closed a plant;
- Partially closed a plant and subcontracted other unit work;
- Laid off all unit employees and transferred the work to another location;
- Subcontracted all of the work of the bargaining unit;
- Unlawfully disciplined, discharged, or locked out employees or refused to reinstate strikers who made unconditional offers to return to work; and
- Impaired employee free choice by granting or promising benefits to discourage union support.
On the other hand, the National Labor Relations Board has declined to issue bargaining orders when:
- The employer interrogated employees or suggested that unionization would be futile;
- The employer postponed or withheld wage and benefit increases; and
- The employer circumvented the union and sought to engage in individual bargaining with employees.
Do not rely on the above examples as legal advice or guidance on how your company should or should not act. The validity of a Gissel Bargaining Order is based on the nuanced factual circumstances as they exist at the time the unfair labor practices were committed. Oftentimes uninformed and unrepresented companies do not realize they are close to receiving a Gissel Bargaining Order until it is too late and they find themselves staring at a union negotiator across the table. Counsel or an employee trained in labor relations should be involved immediately upon receiving an RC petition from the NLRB.
Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.