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Key Enforcement Tool Collects Dust at Bush NLRB
Written by Erin Johansson   
April 25, 2006
The National Labor Relations Act is an overwhelmingly toothless law —one that provides its 'enforcers' with meaningless penalties to assess on violators, and workers with little protection.  But the Act does offer the National Labor Relations Board (NLRB) with one key tool to protect workers: the 10(j) injunction, which authorizes the NLRB to intervene when there is strong evidence that an employer has committed unfair labor practices.  Unfortunately, the use of this important enforcement mechanism has dropped dramatically under the Bush NLRB, much to the benefit of lawless employers.

Injunctions are widely used throughout our society—from halting an execution while an appeal proceeds, to stopping new construction until a permit issue is resolved.  Such a tool allows for intervention in a dispute when delays in the standard legal process could cause irreparable harm.  Why, then, should workers be denied such recourse when their rights are violated? 

The 10(j) injunction allows the NLRB to seek swift and temporary relief, such as the reinstatement of a fired worker, to mitigate the damage of the employer's actions.  The NLRB can utilize this tool when normal delays in the system render the eventual remedy ordered by an administrative law judge or the Board ineffective.  Injunctions can also serve as a deterrence, as employers may be less likely to break the law when they know it's not a given that the remedy will occur long after the violation.

The case of Point Blank Armor illustrates the effectiveness of this tool.  In August 2002, 175 employees at Point Blank's Florida plant went on strike to protest the company's firing of three employees in retaliation for their union organizing effort.1 When Point Blank fired all 175 of the striking workers, the NLRB authorized a 10(j) injunction to reinstate the fired workers, and shortly thereafter, a federal judge ordered the company to comply.  The workers then returned to their jobs and continued their organizing efforts.  The following year, they gained union representation and secured a union contract—an unlikely scenario if the workers had been forced to wait for a Board decision to eventually reinstate them.

NLRB fails to utilize important enforcement mechanism

The Bush NLRB has an abysmal record of utilizing the injunction, authorizing only 70 between June 2001 and December 2005—an average of 16 per year.2  This represents a decline of 74 percent since the Clinton Administration and 61 percent since the G.H. Bush Administration.  The table below compares the use of injunctions of the past four administrations. 

Table 1. Comparison of the use of injunctions between administrations

Administration

 Reagan3

 G.H. Bush4

 Clinton5

G.W. Bush6

Average numer of injunctions authorized per year

 46

41

62

16 

 

The Bush NLRB claims to have authorized fewer injunctions than in the past because of a 16 percent decline in unfair labor practice cases between 2000 and 2005.7  But this excuse doesn’t hold water, as the Clinton NLRB still issued three times as many injunctions per total number of unfair labor practice cases received than the Bush NLRB.8

The Bush NLRB's clear lack of enthusiasm for this vital enforcement tool is consistent with its recent litany of anti-worker rulings.  The agency charged with protecting workers' rights is neglecting its role by letting cases proceed through the painfully slow and inadequate legal process, rendering any eventual remedies meaningless. 

Read more about this issue…


According to the National Labor Relations Act, Section 10(j) [Injunctions]: 

"The Board shall have power, upon issuance of a complaint as provided in subsection (b) [of this section] charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper."9


Citations

1. Danner, Patrick. "Firm Opposing Workers Broke the Law, Judge Says," The Miami Herald, 17 July 2003.
2. National Labor Relations Board, "End-of-Term Report on Utilization of Section 10(j) Injunction Proceedings, June 1, 2001 through December 31, 2005," Memorandum GC 06-02, Jan. 2006.
3. Data based on NLRB documents produced pursuant to a FOIA request by the AFL-CIO, Mar. 2006.  Since the number of authorizations is broken down by fiscal year, not calendar year, authorizations issued at the end of the prior administration may be included in the numbers for the administration that followed. 
4. Ibid.
5. Ibid.  
6. National Labor Relations Board, "End-of-Term Report on Utilization of Section 10(j) Injunction Proceedings, June 1, 2001 through December 31, 2005."
7. Ibid. 
8. Annual Reports of the National Labor Relations Board, FY1993-2004; National Labor Relations Board, "Summary of Operations (Fiscal Year 2005)," Memorandum GC 06-01, Nov. 2005; NLRB FOIA request.
9. National Labor Relations Act, 29 U.S.C. § 160.

 

More Information on NLRB Injunctions

The following two cases illustrate missed opportunities for the NLRB to authorize injunctions that could have mitigated the damage employers assessed on workers' organizing efforts. 

Dynasteel Corp.

In July 2001, employees of the Dynasteel steel fabrication plant in Iuka, MS, began to openly discuss forming a union, and the company immediately responded with threats to close the plant.  Undeterred, the employees pursued representation by contacting the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers.  In October, the company fired the two primary organizers of the union effort, and spied on its employees' union meeting.  In response, the Boilermakers filed unfair labor practice charges with the NLRB, resulting in a complaint issued by the agency.
 
At this point, the NLRB could have pursued an injunction to reinstate the primary union organizers and order the company to cease and desist with threats and surveillance.  This move could have prevented the company from successfully dampening the workers' organizing effort.  Yet the NLRB chose to let the case proceed without seeking interim relief.  An administrative law judge issued a decision in May 2003, finding Dynasteel guilty of the unlawful terminations, threats of plant closure, and surveillance of union activities.  The Board upheld those charges in a December 2005 ruling, ordering the company to reinstate the two workers—more than four years after they were fired.1

The Continental Group, Inc.

In the summer of 2004, condominium workers employed by the Continental Group sought union representation with the Service Employees International Union (SEIU).  Over the next several months, the company interrogated workers about the union, threatened them with unspecific reprisals for supporting the union, spied on their union activities and fired one of the union activists.2  The company also disciplined a union activist for violating a work rule limiting employees' access to the worksite while off-duty.  SEIU filed unfair labor practice charges, and the NLRB issued several complaints against the employer.

The NLRB did not pursue an injunction to order Continental to reinstate the union activist and rescind its unlawful work rule, which limited employees' rights to discuss workplace and union issues.  Such temporary remedies could have lessened the impact of these chilling tactics on the workers' organizing effort.  Instead, Continental appealed a March 2006 administrative law judge order to reinstate the fired worker and cease breaking the law, and the workers are still waiting for the Board to decide the case.3  Until the company is ordered to comply with the law, the signal to workers is that they are not safe from retaliation—that the law is not going to protect them.

Citations

1. Dynasteel Corp., 346 NLRB 12 (2005).
2. Continental Group, JD (ATL)-07-06 (2006).
3. "News Briefs," The Miami Herald, 22 Mar. 2006