Don’t Win the Battle to Lose the War: NLRB Orders Employer to Bargain After the Union Lost its Campaign

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Don’t Win the Battle to Lose the War:
NLRB Orders Employer to Bargain After the Union Lost its Campaign

By: Michael Saqui and Rebecca Hause-Schultz

On August 26, 2016, the NLRB upheld an administrative law judge’s finding that because employer Novelis Corp. committed unfair labor practices during a union campaign, the company had to bargain with the United Steelworkers union even though the union lost the election.

Where a company engages in unfair labor practices during a union campaign, the misconduct may warrant the imposition of a Gissel remedial bargaining order. Pursuant to a Gissel order, a company may be forced to bargain with a union when it engages in unfair labor practices during an election even if the union loses. 

In Novelis, the employer announced that it would no longer pay Sunday premium pay and that holiday and vacation days would no longer be used in calculating overtime eligibility. Shortly thereafter, the union attempted to organize and sent the employer a demand for recognition. The employer denied the union’s demand, and that same day reinstated premium Sunday pay and vacation/holiday overtime eligibility. After losing the election, the union filed objections alleging the employer engaged in unfair labor practices during the election.  The NLRB agreed and found that during the pre-election period, among other things, the employer:

• Threatened employees with plant closure if they voted for union representation,
• Threatened that it would lose business if employees voted for the union,
• Threatened employees with job loss, a reduction in wages, and more onerous working conditions if the union won the election,
• Promised employees improved terms and conditions of employment if they did not select the union, and
• Post-election, the employer demoted an employee who was a union supporter that posted a Facebook post expressing his support of the union for violating its “social media” policy.

The NLRB found that the employer’s conduct unlawfully discouraged employees from supporting the union. Even more, the NLRB agreed that because the employer demoted a prominent union supporter after it lost the election, the employer’s unlawful conduct would continue to be felt by employees if it ordered another election. The NLRB determined that given the severity and long lasting effect of the violations, the possibility of erasing the effects of the employer’s unfair labor practices and ensuring a fair election were slight. Therefore, the NLRB agreed that the employer should be ordered to bargain with the union even through the union lost the election without holding a second election.


The Novelis decision highlights the importance of strictly adhering to the law during a union organizing election.  It is critical that employers avoid engaging in conduct during an election that could be perceived as an unfair labor practice because where a company commits multiple unfair labor practices that will have long lasting effects on employees’ decision making, a court or the NLRB may order the employer to bargain with the union regardless of the election outcome. If you have questions about Gissel remedial bargaining orders or avoiding unfair labor practices, contact the experts at the Saqui Law Group.


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