When employers commit unfair labor practices that disrupt pre-election conditions to the point where the National Labor Relations Board determines a fair election cannot be held, the parties can be ordered to bypass the election and immediately begin negotiating a first collective bargaining agreement. There are no automatic rules in determining when this bargaining order, called a Gisselbargaining order, is required. However, the more egregious a company’s behavior, the more likely it will be subject to automatically bargain with the union.

A company committed several unfair labor practices in response to the Service Employees International Union’s attempt to organize a unit of employees at an elder care facility. For example, management banned logos on uniforms just after being presented with a petition for union election and awarded discretionary raises after several years of not giving employees raises.

A manager also warned employees to watch out for “thieves” posing as union representatives who visited employees at their homes to talk about union organizing. This manager justified her characterization of the union representatives as possible “thieves” based on her concern about a binder of personally identifying information being stolen from the facility’s office months earlier.

This same manager also asked employees to sign a “voluntariness form” indicating whether they felt they were forced into voting for the union. The form told employees, “[w]e need you to know that while you have the right to participate in any legal association however, you are not obligated to do so especially as a result of illegal or intimidating tactics.” The judge found the form to be unlawful polling under the National Labor Relations Act.

Management also made statements that violated the NLRA including stating that they could no longer trust an employee who had voted in support of the union and saying that the company would be forced to shut down if it had to unionize. Other problematic practices included terminating union-supporting employees for activities that previously were not subject to discipline, including arriving late to work within a 7-minute grace period and napping during breaks on overnight shifts.

Gissel bargaining order is an extraordinary remedy, but the NLRB will not hesitate to impose such an order when an employer commits multiple unfair labor practices. When faced with a union organizing drive, prudent companies follow their labor counsel’s advice on what to say and do. Oftentimes a logical response to the drive is an unlawful response that denies employees the right to vote for or against a union. Companies dealing with the threat of a union organizing their workers are better off allowing their workers to vote than being ordered to start bargaining a first contract – with a vote the company retains the possibility of remaining union free.