by Michael Fox
After 200+ years of appellate decisions, it is a rare day when you see the following:
As far as we can tell, this is a question of first impression for the Ninth Circuit and, indeed, for any federal circuit.
What was this case of first impression:
Whether the NLRB clearly abuses its discretion under the National Labor Relations Act when it gives a conclusory explanation for choosing not to adopt an ALJ’s recommended remedy of a Gissel order while adopting the ALJ’s recommended findings of fact, conclusions of law, and remaining remedies.
Maybe one reason that it took so long for this case was that it took a unique set of facts:
the ALJ recommends a Gisselbargaining order (basically a finding that the employer's campaign conduct has been so destructive of the laboratory conditions that it is impossible to have a fair election; thus that step must be skipped);
the Board has to not accept the recommendation of the Gisselorder;
it must do so without giving a detailed explanation of why it was not accepting the order.
Those three factors thus allowed the union to make the following argument:
Because clearly articulated reasoning is required to issue a Gissel order, similarly, clearly articulated reasoning should be required if the ALJ recommends a Gissel order and the NLRB chooses not to issue one.
On first blush it makes some sense, but the Court saw it differently holding, "the fact that courts require greater reasoning when the Board decides to issue a Gissel order is inapposite to the Board’s decision instead to order the default remedy." United Steelworkers v. NLRB (9th Cir. 4/2/07) [pdf].
So an interesting case of first impression; however if the Employee Free Choice Act passes, it and much of the Gisselline of cases will become mere historical artifacts.