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48 Harbinger 1 (2023)

handle is hein.journals/harbg48 and id is 1 raw text is: DIVISION AND DELAY: EVALUATING THE EFFICACY AND UNDERUSE OF THE 10(J) INJUNCTION WILIAM BAKER° ABSTRACT A major reason for the steady decline in union participation in America is the ineffectiveness of the enforcement mechanisms available under American labor law. One of the major enforcement mechanisms is the 10(j) labor injunction, which has been underutilized for years but has the potential to be an effective deterrent to unfair labor practices. This paper examines two intertwined reasons for the 10(j) injunction's underutilization, administrative delay and a circuit split that has resulted in competing standards for granting 10(j) injunctions in the district courts. It aggregates and analyzes approximately 10 years of10(j) injunction activity at the National Labor Relations Board, between 2011 and 2020, concluding on the basis of the available data that the circuit split and the administrative process do, in fact, impact the rates at which 10(j) injunctions are sought and denied in part or in full. The potential for a major legislative overhaul of labor law in America is low, and the most effective solutions can be found through administrative processes. This paper therefore posits that decentralizing the decision-making process for bringing 10(j) injunctions within the National Labor Relations Board would streamline the clunky administrative process for bringing 10(j) injunctions. The Board also has the power to articulate more cogent standards that would effectuate the purposes of the National Labor Relations Act and the 10(j) injunction. I. IN TR O D U C T IO N .................................................................................................2 A. The Structure and Purpose of American Labor Protections ............................2 B. The Promise of, and Barriers to, the 10(j) Injunction ......................................3 C. The Solution.....................................................................................................6 II. D E L A Y ...............................................................................................................7 III. STANDARDS OF THE COURTS................................................................. 10 A. Competing Standards for Granting 10(j) Petitions .....................................10 B. Competing Evidentiary Standards ..............................................................12 C. The 10(j) as an Extraordinary Remedy.......................................................13 IV. INTERACTION BETWEEN DELAY AND STANDARDS ............................... 14 V . S O L U T IO N S ......................................................................................................15 D. Decentralizing Decisionmaking..................................................................15 E. Defining the Standards ...............................................................................16 V I. C O N C L U SIO N ...............................................................................................17 Written for a course on Labor Law and presented at the 2nd Annual Student Scholarship in Labor & Employment Law Webinar through NYU's Center for Labor and Employment Law. 1

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