Deciphering 10(j) Injunctions at the National Labor Relations Board’s Website

Draped in an American flag, a protester displays a sign implying that labor rights are as American as Baseball and Apple Pie. (Photo: Rob Chandanais)Draped in an American flag, a protester displays a sign implying that labor rights are as American as Baseball and Apple Pie. (Photo: Rob Chandanais)In 1935, in the midst of the Great Depression, workers won the rights to form and join unions, take collective action, and bargain collectively when the National Labor Relations Act (NLRA) became law. The purpose of the NLRA was to promote equality of bargaining power between employers and employees, with the goal of preventing depressions:

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

Take This 10(j)! Please!

Of course, passing a law did not end workers’ continuing need to struggle for economic justice. In 1947, employer-employee bargaining power was rebalanced when Congress amended the NLRA.

One of the new tools was the 10(j) injunction. The NLRB’s experience showed that often delay would make it difficult to get a remedy that would make the injured workers whole, as, for example, in cases involving serious violations, such as firing and threatening employees who are the leaders of the union organizing drive. When the leaders are lost, the union organizing campaign is likely to fail.

Another common problem is delay. NLRB cases are investigated and tried much more quickly than most other cases. Even so, when an employee is threatened with job loss or is fired, the employee is likely to give up the campaign.

Section 10(j) gives the NLRB tools to speed up investigations and litigation, and it gives employees stronger remedies. Most importantly, the 10(j) process moves the case to federal court where the judge can order more powerful remedies than the NLRB has access to.

Unfortunately, most of the time, the 10(j) process has been treated as something to be used only in the rarest situations.

Now, however, the current NLRB general counsel, Richard F. Griffin, has ordered the NLRB to ramp up the use of 10(j) injunctions to fight unfair labor practices.

Instead of using 10(j)s only in extreme situations, Griffin has ordered that every unfair labor practice charge must be vetted to decide whether § 10(j) tools should be used. According to Griffin, “Early identification of a § 10(j) case leads to an expedited investigation, including early efforts to obtain evidence of the impact of the unfair labor practices on employees Section 7 rights and/or the collective-bargaining process.”

One part of the general counsel’s strategy is to create a website that provides useful information to the public about what the NLRB does. Now a wide range of documents, manuals, rules and other NLRA practice essentials are available online.

The NLRB has also created websites that show how NLRB representation and election cases and unfair labor practice cases operate, and a flow chart and summary of unfair labor practice processes.

So What Is Not to Like About a 10(j) Injunction?

Obviously, those who are prosecuted under a 10(j) process are unlikely to be happy that the NLRB is using a stronger tool to enforce the law. But for those who support workers’ rights, there is a problem with the NLRB’s website on recent successful § 10(j) cases. As with many modern technological wonders, it can be easier to focus on cool interactive graphics than to ensure that people who need help can get help.

Unfortunately, one bad example is the NLRB’s webpage on § 10(j) activity. The 3-D relief map of the United States displays a summary of each of the cases and, for the most part, provides links to some case documents.

Keep Out!

Building a website to inform the public about NLRB cases is an idea whose time should have arrived years ago. More people need to know that the National Labor Relations Act protects employees who are fired or threatened because they talk about problems with their workplaces or discuss joining a union.

But unless they know they have rights, they can’t use those rights. So the NLRB’s 10(j) website is a great idea, and it could be a great outreach tool.

Unfortunately, the web designer and any NLRB people involved with this website seem to have spent too much time on the website’s graphics, but not enough time thinking about whom the website is supposed to serve and how they will be served.

Readability

Indeed, the people who wrote the descriptions of 10(j) cases on the website seem never to have heard of the virtues of the plain English movement. The NLRB’s descriptions of each case seem to have been condensed from the case complaints or some other legal document. The result is case descriptions that are hard to understand.

This is not just an impression.

Each of the NLRB website’s current descriptions of 10(j) cases was run through a readability program, and the news is not good if the goal is to ensure that workers understand and can use their rights.

A readability level of 12 is the set point for a high school graduate. A college graduate with a bachelor’s degree would be a 16.

Here are the actual readability results of the NLRB website’s case descriptions, ranked in numerical order based on their NLRB region’s case number:

14 17.9 16.3 21.6 20.6
13.7 19.6 17.9 14.2 13.7
17.4 19.9 13 17.4
18 20 16.4 16.5

No case description had a high school level readability. Five cases had an undergraduate reading level. The remaining 13 cases had readability scores at the graduate school level.

The general counsel has gone to some effort to build a website to let the public know about their 10(j) rights. The best way to do that is to make the information as readable as possible to the greatest number of people.

It does take extra effort to produce high quality content that can be read by as many people as possible. But just as a high quality, attractive website is needed so, too, is the readability of the content of that website.

According to Wikipedia, “In 2009, 21.3 percent of the adult population above 18 years had attended college, but had no degree, 7.5 percent held an associate’s degree, 17.6 percent held a bachelor’s degree, and 10.3 percent held a graduate or professional degree.” In other words, the readability levels for all the cases on the website is so high that most of the people who need to learn about their labor rights cannot understand the language on the NLRB’s 10(j) website. In other words, rather than helping people whose rights have been violated, the website actually creates barriers for people who need to use the website to learn about their legal rights.

The NLRB is not trying to make it difficult for employees to learn about their rights. It’s not a large agency and certainly does not have a large budget. Most likely, it never occurred to the people who designed the 10(j) map to research what sorts of employees would need to know about their NLRA rights and how to ensure that they can use those rights.

Websites are not set in stone, and NLRB 10(j) version 2.0 could be on our screens in the near future.

Can You Read Me?

The readability website may be found here.