Magazine article Personnel Journal

The NLRB Wields a Rejuvenated Weapon

Magazine article Personnel Journal

The NLRB Wields a Rejuvenated Weapon

Article excerpt

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

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 tc seek federal district court injunctions foi 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 underuseduntil 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 notwill 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 lO(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 lO(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 unremedied, 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 lO(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) 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. …

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