Embracing the Heat: “Hot Labor Summer” Rekindles NLRB Authority, and the Need for Strategic Enforcement

The National Labor Relations Board is solely responsible for enforcing federal labor union law, but it lacks the power to effectively remedy and deter unlawful acts. This situation allows employers to violate labor law with near impunity, denying their employees’ rights guaranteed under federal law. In Cemex Construction Materials Pacific, LLC, the NLRB overturned decades-old precedent and adopted a more effective standard for determining whether to issue an order for an employer to bargain in good faith with a union. The new rule disincentivizes unfair labor practices, which promotes employees’ freedom to designate representatives for collective bargaining, but alone, it is not enough to fix labor relations in the United States. The Board’s new standard, while an improvement, will not be effective in preventing determined employers from avoiding their bargaining obligations through delay. Time is one of the most important determinants of the effectiveness of bargaining orders, and under Cemex, an employer can still delay meeting at the bargaining table until a final order is enforced by a court. This delay weakens union support and decreases the likelihood of a union reaching a collective bargaining agreement with an employer. This Note argues that the Board should increase the use of interim injunctive bargaining orders from federal district courts to maintain the union’s majority status and prevent employers from benefitting from their unlawful acts. Although the NLRB declined to reinstate the good-faith doubt test, the General Counsel should adopt its factors for determining the subjective intent of employers to identify those who intentionally violate the law to avoid unionization. Strategically seeking injunctive relief in these situations will more effectively deter unfair labor practices from bad-faith actors and will fully effectuate the policies of the National Labor Relations Act within the remedial authority of the Board.