The U.S. Supreme Court case National Labor Relations Board v. Gissel Packing Co., Inc., et al., 1968, revolved around the issue of whether an employer's threats to close a plant in response to union organization efforts violated the National Labor Relations Act (NLRA). The court held that such threats indeed constituted unfair labor practices under Section 8(a)(1) of NLRA and could be used as grounds for issuing a bargaining order even if no election had been conducted or where an election was set aside due to these unlawful activities. Furthermore, it ruled that employers' predictions about negative consequences resulting from unionization must be carefully phrased based on objective facts rather than being issued as retaliatory threats against employees' self-organizational rights.

In the dissenting opinion for NATIONAL LABOR RELATIONS BOARD v. GISSEL PACKING CO., INC., Justice Fortas, joined by Justices Harlan and Stewart, argued that the majority's decision to allow a bargaining order in cases where an employer has committed unfair labor practices that impede a fair election undermines the National Labor Relations Act's preference for secret ballot elections. They contended that such orders should only be used in exceptional circumstances where it is impossible to hold a fair election due to egregious conduct by employers. The dissenters also disagreed with the majority’s view on threats made during union organizing campaigns, arguing they were not necessarily coercive if they did not involve physical violence or economic reprisal. Furthermore, they criticized the majority for failing to provide clear guidelines about when bargaining orders are appropriate and expressed concern this could lead to arbitrary enforcement of labor laws.