Quick Hearings as a Strike Against Bureaucratic Delay: An Alternative Administration Procedure for 10(j) Cases Before the NLRB
The National Labor Relations Board (NLRB or Board) is charged with enforcing the keystone statute of U.S. labor law, the National Labor Relations Act (NLRA or Act), including its prohibition against employers’ firing workers in retaliation for union organizing. In a time of rising labor agitation, however, the NLRB’s procedures for remediating such alarmingly frequent discharges are woefully inadequate. This Note examines the perennially underutilized section 10(j) of the NLRA, which provides for injunctive relief in discriminatory discharge cases where the Board’s own slow-moving administrative procedures would defeat the purpose of the Act, and explains why current 10(j) procedures are plagued by delay and failure. It then proposes an alternative administrative procedure for 10(j) cases—including a delegation of prosecutorial discretion, quick evidentiary hearings, and review of Administrative Law Judge determinations by the Board—that would address many of the section’s shortcomings. The Note considers the salutary consequences of implementing this alternative procedure through notice and comment rulemaking before concluding by demonstrating how this procedure would enhance the Board’s enforcement of the Act. Ultimately this Note argues that section 10(j) can, through long-overdue procedural reform, become a robust guarantee of the statutory rights of workers that are at the heart of the NLRB.