NLRB General Counsel Jennifer Abruzzo announced, in a February 1 memorandum, that the Board will consider seeking interim injunctive relief – heretofore an extraordinary remedy reserved for particularly serious unfair labor practices – in virtually all cases in which an employer is alleged to have engaged in “threats or other coercion” against employees during a union organizing campaign.
Section 10(j) of the National Labor Relations Act provides an avenue for the NLRB to petition a federal district court for interim injunctive relief in cases where the Board’s normal litigation processes may not be adequate. During her short time in office, Abruzzo repeatedly has advocated more frequent use of Section 10(j) proceedings as among “the most important tools available to effectively enforce the Act.” To employers, however, the mere prospect of Section 10(j) relief is daunting, given the high cost of injunction litigation. In the memo, “GCM 22-02: Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns,” Abruzzo announces her intent to seek prompt Section 10(j) relief in any organizing campaign where the facts demonstrate that employer threats or other coercion may lead to irreparable harm to employees’ Section 7 rights.
It is a basic principle of federal labor law that employers may not threaten employees based on their support for a union or to deter union organizing efforts – anyone familiar with the “TIPS” rule knows the “T” stands for “threaten.” The reference to “other coercion” really muddies the water. It is an unfair labor practice for employers to threaten, restrain or coerce employees in the exercise of their Section 7 rights. Virtually every employer unfair labor practice is deemed to “coerce” employees in the exercise of their rights.
It follows that essentially any employer unfair labor practice during a union organizing campaign may justify the pursuit of injunctive relief under Section 10(j) if the General Counsel believes that the harm to employees’ Section 7 rights will be irreparable. To justify this dramatic change in policy, Abruzzo posits that “threats often escalate into action, imposing even more burdens and chilling impact on employees. They are not mere words hanging over employees’ heads, but a prelude to what is to come.” Abruzzo contends that “threats and other coercive conduct need to be enjoined promptly, not only to erase the chilling impact they have on employees, but to prevent escalation of the words into action.”
Therefore, to prevent threats and other coercion from (supposedly) leading to unlawful discharges and other actions, Abruzzo instructs Regional Offices to promptly investigate alleged threats and other coercive conduct made during an organizing drive and immediately submit those cases for consideration of injunctive relief.
To determine precisely which “coercive conduct” warrants seeking injunctive relief, GC Abruzzo instructs Regional Offices to consider “all contextual circumstances . . . such as inherent impact on employees and union support; nature, frequency, severity and dissemination; hierarchical rank of the actor(s), local labor market; and recidivism, to name a few.” This stew of vague and ambiguous criteria do not provide clear guidance for employers and their counsel.
Moreover, in cases where a union already has petitioned for an election, it is not clear how the NLRB’s pursuit of injunctive relief would impact the timetable for conducting an election. At first glance, an employer might welcome any delay in the election occasioned by Section 10(j) proceedings. On the other hand, given Abruzzo’s stated interest in reviving Gissel bargaining orders, the initiation of Section 10(j) proceedings could be a harbinger of worse things to come.
The bottom line? Abruzzo has taken another action intended to increase the pain inflicted on employers who violate the NLRA. Now more than ever, employers responding to union organizing activity are advised to consult with experienced labor counsel to avoid mistakes that could result in costly litigation.