Deconstructing 'just and proper': arguments in favor of adopting the 'remedial purpose' approach to section 10(j) labor injunctions.

• Author: Briggs, William K.

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power. This Note examines the justifications behind these two interpretations in light of section 10(j)'s statutory structure--most notably, the use of the just and proper standard in two other provisions of the National Labor Relations Act. It also considers the legislative history of section 10(j) and the public policy consequences underlying Congress's mandate granting the Board exclusive jurisdiction to seek injunctive relief in court under section 10(j). This Note argues that an examination of these factors reveals that Congress intended for courts to focus their section 10(j) analysis on the preservation of the National Labor Relations Board's remedial power rather than on traditional equitable principles.

TABLE OF CONTENTS INTRODUCTION I. THE USE OF "JUST AND PROPER" IN NLRA SECTIONS 10(E) AND 10(F) II. CONGRESS'S UNIQUE MANDATE TO THE BOARD IN SECTION 10(J) A. Pre-Court Screening of Petitions B. Protection of Public Policy Concerns III. THE LEGISLATIVE HISTORY OF SECTION 10(J) A. Pre-1932 B. 1932-1947 C. Post-1947 D. Striking a Balance IV. CONCERNS ABOUT THE ROLE OF THE COURTS UNDER THE REMEDIAL PURPOSE APPROACH CONCLUSION INTRODUCTION

On September 30, 2010, the general counsel of the National Labor Relations Board ("the Board") issued a memorandum to all of its regional offices. This memorandum announced an initiative to expedite the processing of section 10(j) requests for interim injunctive relief in cases involving unlawful discharges during union organizing campaigns, (1) Section 10(j) is a provision in the National Labor Relations Act ("NLRA") that authorizes the Board to seek a preliminary injunction in federal court on behalf of a private party who has filed a complaint of an unfair labor practice with the Board. (2) In addition to unlawful discharges, unfair labor practices governed by section 10(j) include interfering with an organizational campaign, undermining a bargaining representative, refusing to permit protected activity, and refusing to bargain in good faith. (3) Although the Board possesses the jurisdiction to rule on the merits of these unfair labor practices, an injunction is often necessary because of the length of time the Board's adjudicative process takes The general counsel's initiative aims to shorten the Board's timeline in determining whether to seek this type of injunction by implementing strict time limits for each step of the process. (5) If the Board were able to process section 10(j) requests faster, it would have the opportunity to bring suit in court more often, which would likely lead to an increase in the number of section 10(j) petitions for injunctive relief the Board seeks. This likely increase should carry with it a renewed focus on the standards courts use to resolve section 10(j) petitions.

Section 10(j) provides as follows:

The Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court ... for appropriate temporary relief or restraining order. Upon the filing of any such petition the court ... shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. (6) A circuit split exists over the proper interpretation of this just and proper standard. (7) Although many different approaches have been adopted since the passage of section 10(j) in 1947, the federal courts of appeals currently follow two distinct approaches. (8) The Third, Fifth, Sixth, Tenth, and Eleventh Circuits currently favor the "remedial purpose" approach, which requires the court to consider only whether injunctive relief is necessary to preserve the remedial powers of the Board. (9) In contrast, the First, Second, Fourth, Seventh, Eighth, and Ninth Circuits favor the traditional "equitable principles" approach, which is used for general injunctions. (10) This approach asks the court to consider (1) the petitioning party's likelihood of success on the merits, (2) the possibility of irreparable harm to the petitioning party if relief is not granted, (3) the extent to which the balance of hardships favors the respective parties, and (4) whether the public interest will be advanced by granting the relief. (11) As a practical matter, the remedial purpose approach results in greater judicial deference to the Board's determinations than the equitable principles approach.

This Note argues that courts that have adopted the equitable principles approach have inappropriately removed the just and proper standard of section 10(j) from its structural and historical context. This context reveals the remedial purpose approach as the best representation of congressional intent. Part I examines the two major judicial approaches and the justifications behind them. It then reviews these justifications in light of the use of the just and proper standard in two other provisions of the NLRA, concluding that the statutory structure supports the remedial purpose reasoning. Part II expands this structural argument by examining the public policy consequences of the unique congressional mandate embodied in section 10G). Congress's mandate means that section 10(j) injunctions are different from ordinary injunctions in ways that support Part I's finding that congressional intent favors the remedial purpose approach. Next, Part III looks at section 10(j)'s legislative history and finds that this history reinforces the conclusion that Congress intended for courts to apply the remedial purpose approach. Lastly, Part IV addresses a common concern that the remedial purpose approach removes courts from the section 10(j) process altogether, allowing Board bias to unfairly influence injunction decisions. This Part finds such a concern unwarranted.

1. THE USE OF "JUST AND PROPER" IN NLRA SECTIONS 10(E)AND 10(F)

   Both judicial approaches to the just and proper standard of section 10(j) recognize the congressional purpose to preserve the Board's remedial powers. Both sides also agree that by forcing a return to the previolation status quo, section 10(j) relief preserves the Board's powers by preventing the occurrence of irreparable harm that would make final Board adjudication on the merits meaningless. (12) However, they disagree on Congress's other purposes in enacting section 10(j). Proponents of the remedial purpose approach argue that section 10(j) was passed to limit judicial discretion. (13) In contrast, proponents of the equitable principles approach believe section 10(j) was passed to curtail labor power. (14) Though these two differing views of congressional intent are not facially incompatible, the two judicial approaches they underlie have proved to be incompatible in practice. While proponents of both approaches look to the language of section 10(j) for support, section 10(j)'s structural context--the use of the just and proper standard in two other provisions of the NLRA--reveals that the remedial purpose approach is most compatible with Congress's intent.

   The remedial purpose approach claims to more accurately reflect the congressional intent of section 10(j) because it results in the limited judicial discretion intended by the Taft-Hartley Act, which amended the NLRA in 1947. (15) The approach encourages courts to defer to administrative findings and establishes a presumption in favor of granting injunctive relief. It requires the Board to demonstrate only that injunctive relief is necessary to preserve the remedial purpose of the NLRA. (16) Under this approach, courts should defer to the Board's determination of whether an unfair labor practice has occurred in lieu of considering the merits of the case itself. (17) This deference requires courts to determine whether the Board's legal theory is supported by the facts and not to substitute their own legal theory or analysis. (18)

   In contrast, the equitable principles approach is supported by the view that the Taft-Hartley amendments were enacted to curtail labor power. (19) According to the Eighth Circuit, section 10(j) "is a limited exception to the federal policy against labor injunctions." (20) Deference to administrative findings, according to proponents of the equitable principles approach, unfairly tips the scales in favor of labor, contrary to Congress's statutory intent to protect the rights of management as well as labor. (21) However, many courts that apply this approach advocate for keeping the congressional purpose to preserve the Board's remedial powers in mind while applying the four prongs of the equitable principles approach. (22) When discussing the standard of review, these courts often claim that deference toward the Board's findings is appropriate. (23) When it comes to actually applying the equitable principles, however, these courts make no mention of deference and treat the Board as if it were any other party. (24) In any event, most proponents of the equitable principles approach agree that section 10(j) relief is a remedy reserved for serious and extraordinary circumstances. (25)

   Both camps in the circuit split argue that the language of section 10(j) supports their approach. (26) Central to this debate is the Supreme Court's decision in Weinberger v. Romero-Barcelo, which, although it did not address...