1. 1 GISSEL QUESTIONS Can a union establish a bargaining obligation without an election, taking into account 1947 amendments? Are authorization cards so inherently unreliable that they can never indicate employee desires? –What is employer’s obligation when confronted with a card-based recognition request by a labor organization? Can a bargaining order be issued where the union has demonstrated a majority and employer UFLP’s have made a fair election unlikely? Were statements by employer linking unionization and employee jobs within Section 8© free speech provision

2. 2 “Under the Board's current practice, an employer's good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength.” (Board practiced approved in Gissel, 395 U.S. 575, 594 )

3. 3 GISSEL “TYPES” I Employer has committed “outrageous and pervasive” UFLP’s which make an untainted election impossible (Gissel dicta): –BO permitted without an inquiry into majority status –never imposed, court and board disapproval II Employer had committed “pervasive” UFLP’s which are likely to undermine union strength and impede election process (Gissel case) –BO permitted if union can show majority status III UFLP’s not so serious as to impede election –no BO

4. 4 Franks Bros. V. NLRB Supreme Court 321 U.S. 702, 1944 In context of a bargaining relationship: “The Board might well think that, were it not to adopt this type of remedy (a bargaining order), but instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer's wrongful refusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone performance of their statutory obligation. In the Board's view, procedural delays necessary fairly to determine charges of unfair labor practices might in this way be made the occasion for further procedural delays in connection with repeated requests for elections, thus providing employers a chance to profit from a stubborn refusal to abide by the law. That the Board was within its statutory authority in adopting the remedy which it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement (321 U.S. at 705).”

5. 5

6. 6 Cited approvingly in NLRB v. USA Polymer Corp., 5 th Cir, No. 00-60173, November 6, 2001.

7. Cogburn Health Care v. NLRB, 437 F.3 rd 1266, 179 LRRM 2065, DC Cir., 2006 “This court has, on numerous occasions, directed the Board to provide a reasoned analysis when considering the imposition of a bargaining order.... The required analysis must contain “an explicit balancing of three considerations: (1) the employees’ §7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.”... Furthermore—and most relevant here—we have made it clear that the Board must consider the appropriateness of a bargaining order at the time the order is issued....The Board may have undertaken a thorough Gissel analysis with respect to the information it had at the time of its original order in 2001.... But its analysis failed when Cogburn proffered evidence of “changed circumstances.” (179 LRRM 2070, all citations omitted) 7

8. Curwood, Inc., 339 NLRB 1137, 339 NLRB No. 1137 (2003) “.... Being unionized is also viewed negatively by our customers. They are concerned about potential work stoppages and product interruptions, which would harm their business. That is why we say remaining union-free affects our business and our livelihood.” 8

9. 9 Employer Speech With respect to discussion that might be interpreted as linking unionization and job loss, employer must be sure that its statement are based on “objective fact” to convey a belief in “demonstrably probable consequences beyond his control.” What did the speaker intend? What did the listener infer?

10. Excerpt from Majority Opinion. “In conveying its customers’ concerns about possible unionization, the Respondent's June 30 letter contained no threat of reprisal. Furthermore, the Respondent provided objective material reflecting its customers’ concerns.... The material consisted of written inquiries from large customers such as Nestle, Nabisco, Kraft, and Minute Maid, asking whether the Respondent's products were produced in unionized plants. Some of the inquiries specifically raised concerns about “possible interruption in receipt of materials” and “continuity of supply” in the event of a work stoppage.... That Respondent's customers routinely and generally ask their suppliers about their contingency plans in the event of union-related supply disruptions underlines just how much of a concern such disruptions really are for those customers. 10

11. Excerpt from Dissenting Opinion. “(T)he correspondence belatedly offered by the Respondent simply does not support the Respondent's claims. The correspondence inquired about which of the Respondent's plants were unionized, the termination dates of collective-bargaining agreements, and any history of work stoppages. As the judge found, these were no more than routine business inquiries manifesting a customer interest in continuous product flow in the event of a strike. Nothing in any of these documents reflected that the Respondent's customers held a “negative” view of unionization. The correspondence contains no hint that the Respondent's customers would walk away simply because employees unionized. Indeed, Sam Smith, the Respondent's site director, whose testimony introduced the documents into evidence, indicated that in his 19 years with the Company he was not aware that the Respondent had ever lost any customers because unionized plants manufactured some of its products.” 11