Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should be issued in appropriate cases. Part I examines the language and legislative history of the National Labor Relations Act (the Act) and contends that Congress did not expressly preclude the Board from issuing NMBOs; they are, in fact, consistent with Congress' underlying legislative intent. Part II analyzes the Supreme Court's decision in NLRB v. Gissel Packing Co. and argues that the Court there sanctioned the Board's use of NMBOs. Part III discusses relevant policy considerations and concludes that NMBOs are consistent with the Act's policies of effectuating employee free choice and of deterring the commission of unfair labor practices by employers.
David S. Shillman,
Nonmajority Bargaining Orders: The Only Effective Remedy for Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol20/iss2/8