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5th Circuit: Remedial Bargaining Order Imposed for Unfair Labor Practices


12/15/07 7:04 AM

5th Circuit: Remedial Bargaining Order Imposed for Unfair Labor Practices

By Donald J. Cairns

When an employer engages in such serious unfair labor practices that holding a fair union election would be unlikely, the National Labor Relations Board (NLRB) may issue a “ Gissel bargaining order,” the 5th U.S. Circuit Court of Appealsdecided.

If an employer or a union fails to bargain in good faith, the board may issue a “bargaining order” designed to restore good faith bargaining between the parties. Gissel bargaining orders—named for the U.S. Supreme Court case of NLRB v. Gissel Packing Co. (395 U.S. 575 (1969))—are a special class of “remedial bargaining orders” that direct an employer to bargain with a union as the exclusive representative of employees, even though the employees have not actually selected the union through a board election. Gissel orders are designed to remedy serious unfair labor practices that either make the holding of a fair election unlikely or in fact undermine a union’s majority status.

California Gas Transport (CGT) was headquartered in El Paso, Texas. Its drivers transported propane from various points in the southwestern United States to distribution sites in Mexico. CGT employed drivers in El Paso; Nogales, Ariz.; and San Diego.

For several years, drivers based in El Paso and Nogales had complained about wages and working conditions. At various times, drivers from both locations discussed their common complaints as well as ways to address them. The drivers also met with CGT officials in Mexico and the United States to discuss their concerns.

Unhappy with CGT’s response, the Nogales drivers began a concerted effort to force CGT to address their concerns.

After learning that the El Paso drivers might engage in a work stoppage, the Nogales drivers met with Teamsters union organizers for assistance in the event CGT asked the Nogales drivers to take over the El Paso drivers’ routes during the strike.

El Paso drivers also took concerted action, presenting CGT with a written petition outlining their requests for improved wages and working conditions. When CGT failed to address their concerns, nine of the 15 drivers engaged in a work stoppage.

A CGT official met with the El Paso drivers and rejected many of their demands, added that some were being considered and informed the drivers that the company could not lose another day of transporting gas due to their work stoppage. The drivers also were threatened with termination and other unspecified reprisals if they continued to complain about wages and working conditions.

The striking drivers offered to return to work, informing CGT too that they planned to contact a union.

CGT then handed out “voluntary resignation” letters written in English, which, once translated into Spanish, the drivers refused to sign. The same drivers were told the next day by a CGT manager that they had been fired.

The union never sought to establish bargaining rights covering the El Paso drivers. It did so for the Nogales drivers, filing a petition seeking a board election covering drivers at the Nogales facility. However, prior to the election, CGT:

    • Terminated two drivers who openly displayed and distributed union paraphernalia.

    • Provided a negative employment reference for one of the fired drivers.

    • Implied that Nogales drivers might be terminated if they refused to take over the striking El Paso drivers' routes.

The election was held, and the union lost. It filed unfair labor practice charges with the board, which found that violations of the National Labor Relations Act (NLRA) at U.S. and Mexican facilities warranted a Gissel bargaining order covering the Nogales drivers.

On appeal to the 5th Circuit, CGT asked that the Gissel bargaining order be set aside, claiming that it was improper for the board to consider violations at El Paso and Juarez, Mexico, to justify the bargaining order related to Nogales employees. In addition, it argued that the NLRA does not apply to Mexican-based facilities.

The appellate court did not reach the issues of whether the violations in El Paso and Mexico could be considered by the board. Instead the 5th Circuit sustained the board's order on the basis that the unfair labor practices in CGT’s Nogales facility, standing alone, justified the imposition of a Gissel bargaining order in Nogales.

California Gas Transport Inc., v. NLRB , 5th Cir., No. 06-60871 (Nov. 7, 2007).

Professional Pointer: While the appellate court found it unnecessary to address CGT's unlawful conduct at the El Paso and Juarez facilities, the board’s underlying decision and its arguments before the court demonstrate the board’s view that the law applies to conduct occurring outside U.S. borders when, as in this case, it affects “domestic conditions” within its boundaries, the laws of Mexico are not implicated and there is no interference with international law. Equally important, the board's decision and legal arguments reinforce its earlier rulings that unlawful conduct occurring elsewhere and involving employees at distant locations may be considered when such conduct has a “chilling effect” on the exercise of rights by employees seeking union representation.

Donald J. Cairns is a senior member with the firm of Lindner & Marsack S.C., a Worklaw® Networkfirm in Milwaukee.

Related Article:

NLRB Not Required To Justify Standard Remedy , Court Report, April 27, 2007

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Editor’s Note: This article should not be construed as legal advice.

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