In General Counsel Memorandum 18-05, General Counsel Peter Robb expressed his views on the use of temporary injunctions under Section 10(j) of the Act. Section 10(j) gives the NLRB the discretion upon issuance of a complaint to seek temporary injunctions against employers and unions (typically employers) in federal district courts to stop alleged unfair labor practices while the case is being litigated before the NLRB. The Region’s argument is that injunctive relief is allegedly necessary to ensure that the Board’s final decision will be meaningful. Thus, the courts can order an employer to stop the alleged unlawful activity before the NLRB ultimately decides the matter.
A district court will order 10(j) injunctive relief when it finds: (1) reasonable cause to believe that an unfair labor practice has been committed or a likelihood of success on the merits; and (2) that ordering the temporary injunction is just and proper. Under the first prong, the courts give the NLRB considerable deference to its belief that a violation has occurred, and frequently rely on a very limited evidentiary record in finding reasonable cause/likely success on merits. The courts effectively need to conclude that the NLRB’s theory of violation is substantial and not frivolous. The second prong looks to see whether remedial failure is likely if the court does not grant the injunction.
If ordered, injunctions can require employers and unions to refrain from certain actions (such as refrain from interfering with employees’ Section 7 rights) or to take certain affirmative actions (such as requiring employers to reinstate employees or to bargain with a union). Although the NLRB does not seek 10(j) relief in most cases, the Obama Board sought 10(j) relief on a more frequent basis than prior Administrations.
In GC Memo 18-05, GC Robb appears to indicate that he will seek 10(j) relief in fewer categories of cases than his predecessor and will require Regions to seek 10(j) relief earlier in unfair labor practice cases.
First, Robb announced that remedial failure is more likely, and 10(j) relief more often appropriate, in cases involving: (1) discharges during organizing campaigns, (2) unfair labor practice charges filed shortly after a union is certified as the employer’s bargaining representative, (3) a successor employer’s refusal to bargain with the representative of the predecessor employer’s employees, and (4) a successor’s refusal to hire the predecessor’s employees. This appears to be a somewhat narrower class of cases than the Obama GC considered in seeking 10(j) relief.
Second, Robb also indicated that Regions should request authorization to seek 10(j) relief promptly once they determine it appropriate and not to wait until after a hearing has been held for the ALJ to decide the case. This makes great sense and stands in sharp contrast to the NLRB’s practice under the Obama Administration where the Board frequently waited until after a record had been developed in a hearing before an ALJ. Waiting until after the administrative record had been developed made it easier for Regions to show likely success on the merits, particularly in those cases where the ALJ already issued a decision, but this was puzzling because it undercut a Region’s argument that a temporary 10(j) injunction was needed on an immediate basis to prevent remedial failure. Under these circumstances, a Region has already waited months, and potentially even more than a year, after an alleged unfair labor practice had been committed and has only then attempted to restrain the alleged misconduct. If time is critical, remedial failure likely occurred prior to the NLRB even seeking 10(j) relief (and thus should have been sought early on). If there is no immediate need, there is likely little risk of remedial failure by waiting until the NLRB decides the case.
One downside for employers contained in GC Robb’s memo is that he urges Regions to pursue 10(j) relief even when the Region is in the midst of settlement discussions, “unless there is a very strong likelihood that the case is going to settle.” But, in reality, this practice will place added pressure on employers to settle cases to the extent the Region alerts the employer that it intends to seek 10(j) relief or that the NLRB has approved the Region’s request for such relief. This is so, because it is difficult to erase the effects of a remedy imposed by temporary injunction if the NLRB later concludes there was no violation of the Act.
Chip Zuver is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.