The Gissel Doctrine
It is well-established, under federal labor law, that the National Labor Relations Board (NLRB) may order an employer to recognize and bargain with a labor union, as the exclusive representative of a group of the employer’s employees, despite the fact that the union lost the secret ballot election among said employees. Such orders, commonly referred to as Gissel Orders, are issued by the NLRB where:
- At one time, the union had the support of the majority of the employees who were eligible to vote in the election. (Typically, the union had presented signed authorization cards from a majority of said employees in support of its petition for the election.);
- The employer committed unfair labor practices prior to the election that have “a tendency to undermine the union’s majority strength and impede the election process.” (Those are frequently called “hallmark” violations.); and
- The possibility of erasing the effects of the employer’s unlawful conduct and ensuring a fair election is slight.
NLRB v. Gissel Packing Co., 395 U.S. 375 (1969); Davis Supermarkets v. NLRB, 2 F.3d 1162, 1171 (D.C. Cir. 1993).
In determining whether to issue a Gissel Order, the NLRB examines the following factors:
- Seriousness of the violations;
- Extent of dissemination among employees;
- Number of employees directly affected by the violations;
- Size of the employee group; and
- Identity and positions of the individuals who committed the violations.
Holly Farms Corp., 311 NLRB 273 (1993).
Throughout the years, the NLRB has issued Gissel Orders in a variety of circumstances. The law that has developed in this area has been referred to as the Gissel doctrine. In some cases, such orders have been issued where it was found that low-level supervisors had threatened employees with discharge, loss of jobs, and business closure, even though higher-level officials had given employees assurances against reprisals for union activity. See e.g., Garvey Marine, Inc., 328 NLRB 991 (1999).
The continuing applicability of the Gissel doctrine in Arizona must now be examined in light of the recent amendment to the Arizona Constitution, approved by a majority of Arizona voters on November 2, 2010. The Amendment states: “The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.” (emphasis added) Article 2, Section 37, Arizona Constitution (Article 2 of the Arizona Constitution is the “Declaration of Rights”).
On September 5, 2012, Judge Frederick J. Martone, of the United States District Court for the District of Arizona, dismissed the NLRB’s lawsuit against the State of Arizona contending that Article 2, Section 37 was preempted by the National Labor Relations Act (NLRA). Judge Martone ruled that the NLRB argument that state proceedings under Art. 2 Sec. 37 would mirror NLRB representation proceedings was “merely speculative.” NLRB v. Arizona, D. Ariz., No. 11-CV-913-PHX-FJM September 5, 2012.
There was no mention of the Gissel doctrine in Judge Martone’s decision and, to date, Arizona courts have not addressed or interpreted Art. 2 Sec. 37. Thus, the question remains whether requiring an employer to recognize a union as the exclusive bargaining representative of a group of its employees, even though the union lost the secret ballot election among those employees, is reconcilable with the language and spirit of Art. 2 Sec. 37.
The Law in South Carolina, South Dakota and Utah
This tension between the established federal labor law under Gissel and Art. 2, Sec. 37 of the Arizona Constitution, also applies to other states, inasmuch as voters in South Carolina, South Dakota and Utah have approved laws similar to Art. 2, Sec. 37. In Utah, the current version is at Article IV Section 8 to the Utah Constitution:
Article IV, Section 8. Election to be by secret ballot.
(1) All elections, including elections under state or federal law for public office, on an initiative or referendum, or to designate or authorize employee representation or individual representation, shall be by secret ballot.
(2) Nothing in this section may be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, as long as secrecy in voting is preserved.
In South Carolina, it appears in Article II, Section 12 of the South Carolina Constitution:
SECTION 12. Secret ballot; employee representation by labor organization.
The fundamental right of an individual to vote by secret ballot is guaranteed for a designation, a selection, or an authorization for employee representation by a labor organization.
In South Dakota it appears in Article VI Section 28 of the South Dakota Constitution:
SECTION 28. Right to vote by secret ballot. The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.
One can only speculate whether the state courts in Arizona and in those states that, like Arizona, guarantee their citizens the right to vote by secret ballot before union representation is imposed on them, would view the implementation of Gissel Orders by the NLRB as inconsistent with state law. An argument may be made that the secret ballot election rejected by the NLRB before issuing the Gissel Order fulfills the state law requirement. However, state courts will have to decide whether the standards applied by the NLRB in each case before the issuance of the Gissel bargaining order, were sufficient to satisfy the requirement for a secret ballot election guaranteed under state law.