The company, however, contends that the bargaining order is inappropriate because the Board has not stated specifically why a bargaining order is necessary in this case, and because it did not consider the effect of employee turnover on the chances for a fair election which would more accurately gauge the sentiments of the present bargaining unit. The specificity requirement was recently reiterated in NLRB v. Rexair, Inc., 646 F.2d 249 (6th Cir. 1981). There the court stated that bargaining orders have not been enforced when "the Board made no findings or detailed analysis as to the residual impact . . ., or the likelihood of recurrence, of any of the unfair labor practices, or when they are based on conclusory statements unsupported by sufficient facts."
This court typically considers other criteria as well. For example, the Board must establish that the bargaining order is the "only satisfactory remedy." Indiana Cal-Pro, Inc., 863 F.2d at 1301 (quoting N.L.R.B. v. Rexair, Inc., 646 F.2d 249, 251 (6th Cir. 1981)). The Board must also examine "the present effects of past coercive unfair labor practices or present coercive unfair labor practices."
We note, however, that "the Board's determination is not immune from review . . . [and] we must look at the circumstances surrounding the issuance of the bargaining order." Automated Business Sys., 497 F.2d at 272; see also NLRB v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir. 1981). We have held that a bargaining order is proper as a remedy for section 8(a)(1) violations where essentially three conditions occur:
Because the bargaining order is an extraordinary remedy, we have scrutinized very closely the Board's decision to impose it without holding a new election. See, e.g., NLRB v. Rexair, Inc., 646 F.2d 249 (6th Cir. 1981); Donn Products, Inc. v. NLRB, 613 F.2d 162 (6th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980). Thus, bargaining orders have not been enforced when "[t]he Board made no findings or detailed analysis as to the residual impact . . . or the likelihood of recurrence, of any of the unfair labor practices," or when they are "based on conclusory statements unsupported by sufficient facts."
"I am of the opinion that the possibility of erasing the effects of the Company's unfair labor practices and insuring a fair election by the use of the traditional remedy of a cease-and-desist order is slight, and that in this case the employees sentiment expressed through the authorization cards obtained by the Union would, on balance, be better protected by a bargaining order . . . ." N.L.R.B. v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir. 1981). The Board has failed to support its conclusion that a bargaining order is the only satisfactory remedy in the present case.
That case added that such an order is not to be "routinely entered . . . In Renoir [ 646 F.2d 249, 251 (6th Cir. 1981)], we declined to enforce a bargaining order, noting that the Board `failed to support its conclusion that a bargaining order is the only satisfactory remedy.'" Id. at 1301 (emphasis added).
The Board has not established "that a bargaining order is the `only satisfactory remedy.'" Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1301 (6th Cir. 1988) (quoting NLRB v. Rexair, Inc., 646 F.2d 249, 251 (6th Cir. 1981)); see also NLRB v. Kentucky May Coal Co., 89 F.3d 1235 (6th Cir. 1996). We find the requirements of a NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), bargaining order not to be met under the circumstances of this case.
In the end, the Board must determine that a bargaining order is the "`only satisfactory remedy.'" Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1301 (6th Cir. 1988) (quoting NLRB v. Rexair, Inc., 646 F.2d 249, 251 (6th Cir. 1981)). Although we review the Board's issuance of a bargaining order for an abuse of discretion, see Kentucky May Coal Co., Inc., 89 F.3d at 1243, we nevertheless apply close scrutiny to that decision.
N.L.R.B. v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir. 1993) (quoting Appletree Chevrolet I, 608 F.2d at 996). While we accord the Board respect as to its choice of remedies because of its presumed expertise, see So-Lo Foods, 985 F.2d at 126 (citing Gissel, 395 U.S. at 612 n. 32), we "exercise less deference" and require scrupulous specificity from the Board when it issues mandatory bargaining orders on the authority of NLRB v. Gissel Packing. See N.L.R.B. v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir. 1981) (courts closely scrutinize the Board "when it has imposed the very strong remedy of issuing a bargaining order without holding a new election"). A Gissel order "is not a snake-oil cure for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care."
See also Avecor, Inc. v. NLRB, 931 F.2d 924, 938 (D.C. Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 912, 116 L.Ed.2d 812 (1992). Similarly, in NLRB v. Rexair, Inc., 646 F.2d 249 (6th Cir. 1981), we refused to enforce a bargaining order issued after the union had obtained a card majority, but had lost the election. There, the Board's order offered only the most summary boilerplate rationale for its order: