The Propriety of Section 10(j) Bargaining Orders in Gissel Situations

The courts have split on the question of whether a bargaining order constitutes ”just and proper” relief under section 10(j). This Note contends that such an order is always just in a Gissel situation but that a district court may properly issue one only in situations where the Board’s prior decisions clearly establish the relevant labor policy and indicate a high probability that the Board will eventually issue a Gissel bargaining order. Part I of the Note develops the criteria relevant to determining what kind of temporary relief is “just.” Although section 10(j) does not itself define these criteria, the courts may tum to the goals of the LMRA for assistance. Part I relies on these goals to conclude that a court should issue an appropriate section 10(j) order if a union would otherwise suffer irreparable injury between the time an employer commits unfair labor practices and the time the Board adjudicates those practices.

Part II applies this principle and concludes that the section 10(j) bargaining order is always just and sometimes proper in Gissel situations. The order is just because it prevents the affected union from suffering irreparable injury while imposing only remediable side effects on other parties. The order is proper only where clearly established labor policy indicates a high probability that the Board will subsequently issue a Gissel bargaining order.