A Change that Could Help the NLRB Crack Down on Employers that Discriminate Against Unions

Charlie J. Morris

Charles J. Morris is Professor Emeritus at Southern Methodist University's Dedman School of Law.

Cheers to General Counsel (GC) Jennifer Abruzzo for her current efforts to emphasize use of Section 10(j), the temporary injunction provision in the NLRA that has never been effectively used where it’s been most needed: for enforcement of Section 8(a)(3), the employment discrimination unfair labor practice (ULP) that’s most often violated. Indeed, Section 10(j) has historically failed to live up to its congressional purpose, and the Labor Board has itself violated a related provision in the Act, Section 10(m), the little-known clause added in 1959 that specifically requires that Section 8(a)(3) be given priority over all other ULPs.

Sad to say, however, with the passage of time the Board has been unable or unwilling to comply with Section 10(m), for which I sought an explanation in an FOIA inquiry. For reply, I received GC Fred Feinstein’s response to an anonymous 1996 complaint in which he conceded that the Board’s handling of 8(a)(3) cases was not in accordance with Section 10(m).  

And notwithstanding GC Abruzzo’s commendable but limited 10(j) success, violation of Section 10(m) remains a serious problem. The reason using Section 10(j) for broad enforcement of Section 8(a)(3) has not happened is because under existing procedures it is impossible to apply this complex Board-initiated remedy to most of the thousands of meritorious 8(a)(3) cases that are processed annually. In 2021 there were almost 79 thousand such cases.

Nevertheless, Section 10(j) has the potential to become a reliable means to achieve effective Section 8(a)(3) enforcement and deterrence. What’s needed is a simpler administrative program that’s both rapid and consistent, such as the one I published in 2019.

That solution, which I again propose, simply calls for changing administrative procedures so that the Board can process most valid 8(a)(3) cases with Section 10(j) on a virtually universal basis, which would thus comply with Section 10(m). When this happens, Section 8(a)(3) should achieve the same effective compliance and deterrence that exists under comparable provisions in the Railway Labor Act (RLA).

Although anti-union employment discrimination is illegal under both statutes, and both provide for injunctive relief in federal district court, there’s a critical difference in injunctive availability and the employers’ response. Why? Because under the NLRA, only the Board has authority to petition for 10(j) interim relief, whereas under the RLA a private party can enforce that Act’s requirements directly in a federal district court. It’s the silent threat of prompt injunctive relief that has generally allowed airline and railway unions and employees to organize without fear of discriminatory discharges, and for those employees to exhibit pro-union sentiments without fear of employment retaliation.

It follows logically that the key to discouraging anti-union employment discrimination under the NLRA should be prompt and consistent availability of temporary injunctive relief for most Section 8(a)(3) violations. Such a result is obtainable under existing law without new legislation. With procedural changes, the Board could process most 8(a)(3) complaint cases with 10(j) injunctive remedies. This should comply with Section 10(m) and produce the same deterrence that’s achieved under the RLA.

This proposal is neither complex nor esoteric. It calls for adopting a familiar NLRB procedure that has never been seriously challenged. Because the Act allows and indirectly encourages Board delegation of some functions, especially to the GC, it follows that delegation of consistent 10(j) authority in Section 8(a)(3) complaint cases should produce the same positive outcome that prevails under the RLA.

Twelve cases have confirmed the legal validity of this process and none have been repudiated or adversely countered. They provide firm authority for this delegation. The foundation case is Evans v. Int’l Typographical Union, a 1948 decision that unequivocally rejected the contention that only the Board itself was authorized to initiate 10(j) proceedings. It relied primarily on express language in Section 3(d) of the Act which states that in addition to specified primary and regular duties, the GC “shall have such other duties as the Board may prescribe.” In reaching that conclusion — with which there has been total agreement in every later pertinent decision — the court emphasized the key difference between the Board’s judicial and its prosecutorial powers, stating that “delegation of its functions that are of a more prosecutive than judicial nature is in harmony with [Congressional intent, because] if the Board itself were to petition the court for temporary relief [it would] be performing a function of a prosecutive nature.” That conclusion has remained the accepted determination of this issue.

Two other district courts followed Evans v. ITU with similar result. And in the next few years the Board introduced and followed the practice of initiating and prosecuting 10(j) proceedings based on GC designations, but with specific Board authorizations required prior to filing. That practice remained in effect except when, in anticipation of loss of a quorum, the Board issued temporary delegations of full ongoing 10(j) authority to the GC, which occurred in 2001, 2002, 2007, and 2011. Relative to such quorum-loss situations with delegation of full 10(j) authority to the GC, several important appellate decisions were issued — in the Second, Fourth, Fifth, Eighth, and Ninth Circuits — with denial of certiorari in the most recent (the Second Circuit’s Kreisberg v. HealthBridge Management decision).

Delegation to the GC (not to private parties) is thus the process that drives my proposal. Because the Act clearly allows and indirectly encourages the NLRB to delegate some of its functions — especially to the GC — Section 10(j) temporary restraining orders in Section 8(a)(3) cases can become as universally effective under the NLRA as similar injunction availability under the RLA.

Accordingly, pursuant to authority granted especially by Section 3(d), of the Act, I propose that the Board issue and comply with a comprehensive order that delegates to the GC full and final continuous authority and responsibility to initiate and pursue appropriate temporary relief or restraining orders under Section 10(j) in all Section 8(a)(3) cases in which complaints are issued that involve terminations of employment of one or more employees that have occurred at the beginning of or during a union organizing campaign, or when a labor organization is bargaining for a first collective-bargaining contract. The only exceptions to such requirements should be if or when the GC determines that a particular filing would be inconsistent with the policy of the Act. And because this delegation relates to the Board’s internal management, time-consuming notice-and-comment requirements applicable to Section 6 orders under the Administrative Procedure Act are not required.

As a result of the foregoing process, the now too-familiar Section 8(a)(3) ULP should become a rarity among NLRB cases and thus be the means that places the Board in compliance with Section 10(m). Consequently, this program should ultimately result in the Board spending less time, less money, and require with fewer employees to enforce part of a law that almost everyone in an advanced civilized society ought to comply with voluntarily.

And because the present GC and Board majority seem to be genuinely trying to operate in accordance with the Act’s pro-collective bargaining purpose, they should easily recognize the logic of this proposal.

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