A bargaining order is an extreme form of relief and should not be issued without careful consideration of whether changed circumstances render such an order inappropriate, the U.S. Court of Appeals for the Second Circuit, in New York, has explained, remanding an unfair labor practice case to the Board. Novelis Corp. v. NLRB, 2018 U.S. App. LEXIS 6462; 201 L.R.R.M. 3523 (2d Cir. Mar. 15, 2018).

In Novelis, after a majority of employees had signed union recognition cards, and before the election, the company changed benefits to discourage employees from voting for the union, threatened employees with plant closure, and unlawfully demoted a union supporter. The company won the election conducted by the National Labor Relations Board. The union filed multiple unfair labor practice charges against the company, and the Administrative Law Judge found the company had committed an unfair labor practice. Two years after the election, the NLRB adopted the ALJ’s findings and issued a “bargaining order” requiring the company to bargain with the union despite the companies having won the election. The Board refused to consider the passage of time and changed circumstances since the election.

The Second Circuit upheld the Board’s finding on the unfair labor practice charges, but disagreed with the issuance of the bargaining order. The Court noted that “a bargaining order is a rare remedy warranted only when it is clearly established that traditional remedies cannot eliminate the effects of the employer’s past unfair labor practices.” Such a remedy is “appropriate only when traditional remedies, such as a secret ballot rerun of an election, do not suffice.” The Court further noted “the superiority of, and [its] preference for, secret ballot elections over bargaining orders.” Consequently, the Court said, the Board “carries a heavy burden to justify a bargaining order in lieu of a second election.”

The Second Circuit concluded the Board:

  • Ignored the fact that Novelis had taken meaningful steps to remedy the unfair labor practices.
  • Did not account for the passage of time, which casts doubt on the employees’ union support expressed years ago by authorization cards.
  • Failed to take into account significant employee turnover since the election.
  • Bargaining orders are not often issued by the NLRB, but when they are, their issuance must be justified. Although the employer here was able to avoid the issuance of a bargaining order, all of the factors on which the Court based its decision may not be present in other cases. Employers are permitted to aggressively communicate with their employees in the face of a union organizing campaign, but they should consult with experienced counsel to reduce the likelihood a bargaining order will be issued.

Ultimately, the Court concluded that there was no reason to believe a fair rerun election could not be held. 

Bargaining orders are not often issued by the NLRB, but when they are, their issuance must be justified. Although the employer here was able to avoid the issuance of a bargaining order, all of the factors on which the Court based its decision may not be present in other cases. Employers are permitted to aggressively communicate with their employees in the face of a union organizing campaign, but they should consult with experienced counsel to reduce the likelihood a bargaining order will be issued.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.