Diluting the Promise and Threat of the 10j Injunction

NLRB Supreme Court Unions

Oshawa           The Supreme Court somehow got all the votes behind a Clarence Thomas decision pushing back on the National Labor Relations Board (NLRB) ability to request an injunction to remedy egregious unfair labor practices by an employer.  Unfair labor practices in union organizing drives are ubiquitous.  A Harvard professor’s study more than thirty years ago found there were almost two firings of union activists for every organizing drive on average.  Garden variety unfair labor practices regularly populate organizing drives like weeds.

The Supreme Court’s decision is an ironic one.  The whole purpose of the NLRB’s 10j injunctions exists because of the endless delays that management lawyers with the NLRB’s help have been able to drag out the process of indicating a charge even after the NLRB has found that there was a credible determination that an unfair labor practice had been committed by an employer.  The management bar through appeals and requests for more time can stretch the process out for years, meanwhile an election by the workers may be similarly stalled and a fired worker unemployed and waiting interminably for reinstatement.  In service industries with lots of worker turnover, when and if a union finally gets to an election, it will often be a whole newer and different workforce. This is a chilling situation for organizing.  It’s the Antarctica for union organizing drives.  The request by the NLRB for a 10j injunction can slightly speed up the process, and this decision throws more cold water on the process.

Don’t get me wrong, whether lawyers for Starbucks or lawyers sitting on the Supreme Court, the irony of trying to stop the NLRB from shaving a couple of years off the clock for workers is lost in this decision.  They all came to agreement over a perceived difference in standards used by different courts in the federal system in determining how much irreparable harm was experienced by workers through these delays, with some needing a lot, and some needing less.  It’s irreparable either way.  It’s an example of the classic distinction without a difference.  The workers are dead on the job either way, and the union organizing drive is also DOA in most cases as well.

Local 100 has won 10j injunctions a number of times over the years, but it has hardly ever mattered.  Company lawyers always appeal a 10j, and usually keep doing so until denied a writ of certiorari by the Supreme.  Supposedly the NLRB only wins 20 of these a year.  Sometimes more are threatened, and it might mean something to a small company, but for the big boys, it’s just a nuisance and something that buys them another couple of years.  This is part of why reinstated workers so rarely actually accept reinstatement, and so few in a changed work environment survive reinstatement, if they take it.  They’ve gotten new jobs to keep from starving to death.  Too much water has gone under the bridge.

In the greater conservative project of emasculating federal agency authority, this may be a big accomplishment for the rightwing. Labor law doesn’t protect workers, and the NLRB, even when as good as the current gang, is impotent when it comes to really making the process one where workers can find any quick justice.  In the real work of union organizing, this decision just adds another insult to the existing injuries.