Second Circuit Denies NLRB's Attempt To Issue Bargaining Order Against Novelis Corp.

Seyfarth Synopsis: On March 15, 2018, the Second Circuit Court of Appeals issued its decision in Novelis Corp., et al. v. NLRB, et al., upholding several unfair labor practices against Novelis Corp., but due to passage of time and changed circumstances, halting the National Labor Relations Board's efforts to issue a Gissel bargaining order against the Company.

Background

In December 2013, aluminum manufacturer Novelis Corp. announced to employees at its Oswego, New York facility that they would no longer receive Sunday premium pay and that holiday and vacation days would no longer count towards overtime eligibility. In response, several employees began a union organizing campaign, and obtained union-authorization cards from a majority of eligible employees. In early January 2014, after declining the union's request for voluntary recognition, Novelis restored Sunday and holiday pay.

In its efforts to resist organizing, the Company reminded employees that Novelis' unionized plant in Quebec had closed while its plant in non-unionized Oswego continued to flourish. The Company also suggested that unionization would lead to loss of business.

Novelis narrowly prevailed in the February 2014 election by a vote of 287 to 273. After the election, pro-union employee Everett Abare posted a vulgar remark on Facebook complaining about his paycheck and criticizing those who did not vote for the union. In response, Novelis demoted Abare.

After a hearing, Administrative Law Judge Michael A. Rosas found Novelis committed numerous unfair labor practices. Specifically, the Company violated Section 8(a)(1) by restoring Sunday and holiday pay, removing union literature, interrogating employees, and prohibiting employees from wearing union paraphernalia. The ALJ also found that Novelis threatened employees with wage loss, plant closure, and more difficult working conditions if they were to unionize. Finally, the ALJ found Novelis violated Sections 8(a)(1) and 8(a)(3) by demoting Abare after his Facebook post. The ALJ recommended several forms of relief, but most notably, he recommended a Gissel bargaining order because, in his view, "traditional remedies ... would be insufficient to alleviate the impact reasonably incurred by eligible unit employees[.]"

Novelis filed exceptions with the NLRB, seeking to introduce evidence of significant employee and management turnover since the alleged unfair labor practices, and arguing that changed circumstances rendered the...