Conservatives serious about protecting American workers must consider the hazards faced by workers seeking to exercise their legal right to organize in the workplace. Employers are legally prohibited from penalizing “concerted activity” in which workers take action to discuss or improve their wages, benefits, and working conditions, including by attempting to organize a labor union. Yet workers who exercise their legal right to protected concerted activity are sometimes fired by employers seeking to discourage the activity. Legal remedies under the National Labor Relations Act (NLRA) are weak, usually taking a long time to adjudicate and generally offering only reinstatement and backpay after a long absence from the workplace. For employers, breaking the law can be entirely rational.

The United States should expand its use of NLRA section 10(j), under which the National Labor Relations Board (NLRB) has the authority to pursue temporary injunctions in federal court that immediately reinstate workers fired during organizing campaigns. Immediate reinstatement is a much more valuable remedy for the affected worker. It also causes the employer’s violation to backfire, sending a strong signal to workers that they can exercise power and that their organizing effort is legitimate and protected. When pursuing a 10(j) injunction, the NLRB succeeds almost all the time (in every case in 2020 and in over 90% of cases in 2021). The NLRB should give its general counsel authority to pursue 10(j) injunctions in every case in which employer retaliation is identified by regional offices.