Garten Trucking LC v. National Labor Relations Board, et al.

Under this Court’s holding in NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969), the National Labor Relations Board (NLRB) may impose the extraordinary remedy of a bargaining order if it establishes by “substantial” evidence that: “(1) the union once had majority status, (2) the employer committed unfair labor practices that caused majority status to dissipate, (3) the possibility of erasing the effects of past practices to ensure a fair election through traditional remedies is slight, and (4) employees’ sentiments expressed in union cards would be better protected by a bargaining order than a new election.” Id. (holding that bargaining orders -- now known as Gissel orders -- are available only when traditional remedies are insufficient to make possible a “fair and reliable election”). The Circuit Courts of Appeal have consistently held that they will not enforce the NLRB’s imposition of a bargaining order without making specific and detailed findings about the factors relevant to this legal standard, such as the likelihood of recurring misconduct, the residual impact of unfair labor practices, considering whether that effect has been or will be dissipated by the passage of time, and the efficacy of ordinary remedies. The question presented is: When the NLRB reverses its own Administrative Law Judge and finds that a bargaining order is appropriate, does the reviewing Circuit Court show excessive deference to the NLRB inconsistent with Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 387-88, 393 n.4 (2024), by failing to require findings supporting the use of the extraordinary power of a bargaining order remedy?