Proponents of the Employee Free Choice Act often seek to portray the National Labor Relations Board as an agency with limited ability to curb unlawful conduct by unscrupulous employers. EFCA supporters have implied that the Board’s remedial authority is limited to a slap on the wrist years after unfair labor practices occur. We’ve repeatedly taken issue with that assertion, including on this blog and in other publications. In fact, the NLRB has the discretion to seek extraordinary remedies where circumstances warrant.

A decision issued by the U.S. Court of Appeals for the Seventh Circuit on October 8, 2008, illustrates the application of one type of extraordinary remedy. In Lineback v. Spurlino Materials, LLC , the Regional Director for Region 25 of the NLRB filed a federal court action for injunctive relief under section 10(j) of the National Labor Relations Act. (We will note, as an aside, that the injunction request required the approval of NLRB General Counsel Ronald Meisburg, one of the much-maligned Bush appointees.)

Spurlino Materials is an Indianapolis-based supplier of ready-mix concrete. When some of the company’s employees began organizing a union, a manager “allegedly met individually with drivers to warn them that, if they voted for the Union, things were going to get ‘ugly’ at the company.” There was evidence that the manager also told said that “if the employees voted for the Union, the company would drag out the contract negotiations and pay any fines that it might incur.” Despite those threats, a majority of the employees voted for the union in a secret ballot election. The union claimed that the company thereafter bargained in bad faith and made job assignments designed to retaliate against union supporters.  If the company believed that it could do as it wished and just wait out the appeals process, it was wrong.

The Regional Director applied for injunctive relief, and the district court concluded that a preliminary injunction was “just and proper” because “the company’s actions have had substantial effects in discouraging union activity and demoralizing the unionized employees.” The employer had argued that injunctive relief was improper because there was no risk of irreparable harm and that any remedy should wait until the normal appeals process was concluded. The appeals court disagreed, stating:

The process of NLRB resolution has long been recognized as extraordinarily slow—indeed, the purpose of section 10(j) was to prevent employers from taking advantage of this significant passage of time in their efforts to quash union support in the interim.. . .The longer that an employer is able to chill union participation or avoid bargaining with a union, the less likely it is that the union will be able to organize and to represent employees effectively once the NLRB issues its final order.

The appeals court upheld the injunction, which prohibits the company from

(1) retaliating, through discriminatory job assignments or otherwise, against leaders and members of the [Union], based upon those persons’ union membership, support, activity, or affiliation;

(2) acting unilaterally to change terms and conditions of employment for those Spurlino Materials employees in the bargaining unit represented by the union;

(3) failing and refusing to bargain in good faith with the union over a collective bargaining agreement; and

(4) in any like manner interfering with, restraining, or coercing employees’ exercise of their rights under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, pending final resolution of the unfair labor practice charges now pending against Spurlino Materials, LLC based on activity in the company’s Indianapolis-area facilities.

So, if Spurlino Materials engages in these acts while the appeal is pending, it  faces not only the usual NLRB remedies, but also potential contempt sanctions (such as fines or even imprisonment) for future misconduct.

This case represents a significant victory for the NLRB. There would likely be more such cases every year if the agency had adequate funding. Before discarding secret ballot elections and free-market contract principles, Congress should first make it possible for the agency to use the tools it already has under existing law.