The National Labor Relations Board’s recent court win directing
The NLRB rules on allegations of unfair labor practices, but that typically requires litigation at the administrative law judge level before the board can ultimately decide. The time required for a decision can spark situations in which the board rules that the law was violated, but lacks the ability to fix the damage caused by the violations.
Congress created Section 10(j) of the National Labor Relations Act so the NLRB can immediately ask a federal court for a temporary injunction to protect or restore the status quo before the unfair labor practice happened, even as litigation in the underlying case continues at the agency.
1. How does the process operate at the NLRB?
Agency regional offices that prosecute unfair labor practices consider seeking 10(j) injunctions when the case involves certain types of allegations, such as interference with labor organizing campaigns or subcontracting work to avoid union obligations. Most importantly, there must be a threat that an eventual remedy in the case would be too little or too late to provide meaningful relief.
For example, if an employer illegally fires the leader of an organizing campaign, then the NLRB could order the company to rehire the worker and provide back pay. But the board has no ability to restore the momentum of the campaign that was squelched after its leader was axed.
In cases in which a 10(j) injunction may be appropriate, a regional office sends a memo on the case to the injunction litigation branch, which makes a recommendation to the general counsel, who then decides whether to move forward. The agency can’t go to court without the board’s authorization.
2. What happens when the case goes to court?
NLRB lawyers must sufficiently show that there was a labor law violation, a threshold that falls short of the full merits determination that the board will reach. Courts in most federal circuits look to whether there’s “reasonable cause to believe” the law was violated, but some circuits use the more traditional standards for preliminary injunctions.
Agency attorneys also must show there’s a threat that the remedies the board would ultimately issue in the case won’t be sufficient. That’s known as “remedial failure” in NLRB-speak.
Federal courts vary widely on what they need to decide whether to grant an injunction request, based on both local rules and the preference of individual judges. Some courts rule just on the briefs, others call for oral argument, and some require full hearings with witness testimony.
3. What’s the value of a 10(j) injunction beyond speed?
The NLRB rules on unfair labor practice allegations, but the agency must go to court to enforce its orders. Although most parties comply without that extra step, technically they can ignore the orders until a court tells them to toe the line.
A decision ordering a 10(j) injunction has the court’s coercive power built into it. An employer or union that violates the terms of a court order can face civil or even criminal penalties.
For example, a federal judge in May fined a New Jersey hotel $10,000 for not following an injunction ordering it to negotiate with a union. The judge also directed the hotel to pay $500 per day until it fully complied with the order.
Such contempt proceedings are relatively rare. The threshold for proving a party is in contempt of a 10(j) injunction is higher than what it takes to obtain the order, requiring clear and convincing evidence of noncompliance.
These 10(j) injunctions automatically dissolve when the NLRB rules in the underlying case.
4. How has the current general counsel approached it?
One of General Counsel Jennifer Abruzzo’s opening moves after her 2021 confirmation was to pledge that she would “aggressively” seek court orders to stop ongoing unfair labor practices. That came after NLRB authorizations for 10(j) injunctions plummeted under the agency’s general counsel during the Trump administration.
Abruzzo has issued additional directives on the topic, emphasizing the importance of protecting organizing drives from employer coercion and introducing ways to get charged parties to agree to interim, injunction-like deals.
The agency has obtained court orders against high-profile companies like Amazon and
To Learn More:
— From Bloomberg Law
- Top NLRB Lawyer Promises Hard-Charging Approach on Court Orders
- Top NLRB Lawyer Launches Effort to Protect Union Campaigns (1)
- NLRB Announces New Measures to Obtain Relief Under Section 10(j)
— From Bloomberg News