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NLRB Wields a Rejuvenated Weapon

Employers that play wait-and-see with unions may be out of luck due to increased use of 10(j) injunctive relief.

December 1, 1996
The baseball strike of 1994 may seem like old news, but it has generated an interesting trend in employment law. The connection? The strike was finally terminated when the National Labor Relations Board (NLRB) obtained a Section 10(j) injunctive relief.

You've never heard of the 10(j)? Probably not. The 10(j) permits the NLRB to seek federal district court injunctions for situations in which an employer's or a union's actions might cause substantial harm to the other side in a conflict situation.

It has been historically underused-until now. Predictions are that we'll begin seeing the 10(j) in action much more. That means any company that may have involvement with unions-whether the company is currently organized or not-will see more 10(j)s. Associate Professor Clifford M. Koen Jr., Professor Sandra J. Hartman and Associate Professor Dinah M. Payne, all in the department of management at the University of New Orleans, offer insight into what the 10(j) means to employers and the 13 most likely actions to trigger a 10(j).

For what purpose was the 10(j) originally intended?
After issuing an unfair labor-practices complaint, the NLRB General Counsel may seek injunctive relief. Injunctive relief is a court order compelling a party or parties either to resume or to desist a certain action. The 10(j) was designed to ensure an employer or union doesn't continue illegal practices while waiting for an NLRB decision on the issue. Given the lengthy period between a series of unfair labor practices and the Board decision, the use of a 10(j) can minimize the impact of delay.

How is a 10(j) granted?
The Board must show the district court that an unfair labor practice-such as interfering with a union organizing campaign-left un-remedied, will irreparably harm statutory rights during the time the parties are waiting for a final Board order. In addition, the Board must seek an interim injunctive relief that is "just and proper."

An example?
In the case of the baseball strike, consider the irreparable harm that could befall baseball players and others who rely on the industry. Some workers would have to find jobs in the interim; players would find their capacity slipping away with increasing age.

Can you explain how the 10(j) was used with the baseball strike?
In December 1994, the owners contended that their negotiations with the players were at an impasse. They then instituted the terms the owners were insisting upon. In taking this calculated risk, the owners were betting that the baseball union would fold like the football union and accept their desired salary cap. No valid impasse existed-the Board found the owners' action to be a flagrant violation of the Act.

Yet with the inordinate amount of time normally consumed by Board litigation, the owners believed the union would concede before the Board acted. Contrary to their expectations, they got slapped with the 10(j). The U.S. District Court forced the owners to cease and desist from applying their contract proposals until a valid impasse occurred-and required the owners to abide by the old contract.

Why do experts believe we'll see more use of the 10(j)?
The NLRB's General Counsel, Fred Feinstein, has employed the 10(j) to a much greater extent than any of his predecessors since he took office in March 1994. The Board's ultimate success depends on the favorable response of U.S. District Courts to its 10(j) petitions. Most U.S. District Courts have had little experience in matters involving the NLRB and have been reluctant to grant relief without overwhelming evidence of flagrant violations.

What are the implications for employers?
Employers and unions now will have to reappraise each other and refine their tactics. Although labor unions have lost much of their historical power, employers no longer can depend on the concept that delaying resolution of unfair labor practice proceedings will enable them to escape the consequences of their conduct. Obviously, the present General Counsel believes that "justice delayed is justice denied." Accordingly, it appears that the current Board is determined to rejuvenate the NLRA and restore the Act's prominent role in industry.

What are the most common areas for 10(j) injunctive relief?
Most Section 10(j) cases fall within 13 specific categories, although these categories are not exclusive. The Board will likely use the categories to determine whether there is need for such relief:

  1. Interfering with a union's organizational campaign.
  2. Subcontracting work or other changes to avoid bargaining obligation.
  3. Withdrawing recognition from incumbent.
    These cases involve an employer's withdrawal of recognition of, or its refusal to enter into a new agreement with, an incumbent union.
  4. Undermining of bargaining representatives.
    The employer has taken action which denigrates the union in the eyes of employees and impairs union authority.
  5. Minority union recognition.
    These violations occur when an employer grants exclusive recognition to a union that doesn't represent a majority of employees in the unit.
  6. Successor refusal to recognize and bargain.
    In this situation, an employer acquiring a business and becoming the legal "successor" to an existing bargaining relationship has refused to recognize and bargain with the predecessor employer's incumbent union.
  7. Conduct during bargaining negotiations.
    In these cases, one party in a collective-bargaining relationship has refused to bargain in good faith.
  8. Mass picketing violence.
  9. Sections 8(d) and 8(g) notice requirements for strike or picketing.
    These cases involve union strikes or picketing undertaken in contravention of the notice and waiting periods set forth in Sections 8(d) and 8(g).
  10. Refusal to permit protected activity on private property.
    These cases involve an employer's interference with the right of employees to engage in Section 7 activity, such as picketing or handbilling arising from a labor dispute.
  11. Interference with access to board processes.
    These cases involve employer or union retaliation against employees for having resorted to the processes of the Board.
  12. Segregating and preserving assets.
    A respondent begins to close down operations or liquidate physical assets during litigation of unfair labor practices, creating the danger that insufficient assets will exist to satisfy the Board's back-pay order.
  13. Union coercion to achieve unlawful object.

Personnel Journal, December 1996, Vol. 75, No. 12, pp. 85-87.