By: Shaun Francis
Those of us who have toiled away in the trenches of the labor movement have witnesses it too many times to count. An employer unabashed and brazenly violating the National Labor Relations Act and committing unfair labor practices with seemingly no care in the world. Whether it is firing union organizers during a union organizing and election effort, or refusing to negotiate in good faith with a recognized and certified union, employers are not afraid of breaking the law. And why would they? What can the
Board do to them? Make them post a sign saying "Whoops, we broke the law. Sorry about that. We will try really hard not to do it again"? You don't have to look very hard to see the employers fingers crossed behind their back. Just a few weeks ago I was in a discussion with an employer who represented some of my union members, and I was pointing out to this person that what they had just done was an unfair labor practice and that I would be forced to file a charge with the board. Without sarcasm or snark, he didn't miss a beat and literally said to me, "So what? What are they going to do, make me post a posting? Tell me not to do it again? Ok, I won't do it again, until the next time I do it again."
Outside of normal ULP processes, and the Board's administrative powers to force an employer to undo a wrong, the Board does have another tool at it's disposal that would - at least theoretically - scare an employer. Section 10(j) of the Act allows the Board to go to a court and seek an injunction when a ULP is filed that shows probable cause that a violation is occurring and that violation has the ability to do irreparable damage to a union or employee's rights under the Act. The idea of course is that the worker or the union files a charge with supporting evidence and, essentially immediately, or at least with some expediency, the Board goes to court for the injunction because the alleged ULP is so egregious, that it would be wrong to wait to allow the normal ULP process to play out. That is how it is designed to work anyway.
Recently the Board under Biden-appointed General Counsel Jennifer Abruzzo, put out data showing that, due to decades of chronic under-staffing and under-funding by GOP led efforts, the Board takes nearly 300 days to get to court, on average, to even begin seeking an injunction. By that time, of course, the harm of the fired union organizer or the lack of a contract resulting in a strike has already happened.
So we have to ask, if the Board doesn't scare employers with its normal administrative remedies, and the 10(j) power it has is essentially non-existent, why do we have the Act or the Board at all? There are some in the labor movement with a mind towards eliminating the Act altogether and going back to the days when un
ions were essentially free to take to the streets, earn contracts and workplace victories through force, and even violence. I may not be that aggressive in my views, but I do know that we need to rethink and reimagine the Act and the Board if there is ever going to be balance in the labor-management relation again.
The NLRB and the 10(j) weakness © 2023 by Shaun Francis is licensed under CC BY 4.0
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