NLRB Election Procedures - Bargaining Orders

Bargaining Orders

The NLRB also has the power to order an employer to bargain with the union, even though the union has not won an election, as a remedy for egregious unfair labor practices by the employer. Such orders, commonly known as “Gissel orders” after the United States Supreme Court case that authorized them, may only be issued if the union can show that it once had majority support and that the employer’s unlawful conduct destroyed that support. The Board has identified a number of “hallmark” violations, such as threats to close the operation made by an authoritative member of management and disseminated widely through the workforce, that will support a Gissel order.

The appellate courts have been less receptive to these orders and have frequently refused to enforce them on a number of grounds, e.g., that employee turnover in the years while the charge was being litigated makes a bargaining order inappropriate.