NLRB Continues to Increase Use of Section 10(J) Injunctions

By Steven M. Swirsky and Peter M. Panken

NLRB General Counsel Richard Griffin has declared in an April 30, 2014 General Counsel Memorandum. that his office will continue and expand the increasingly aggressive pursuit of injunctions in Federal Court against employers in connection with union organizing and bargaining for initial collective bargaining agreements.

In GC Memorandum GC 14-30, the Board’s regional offices have been directed that they should aggressively consider requesting authorization from the General Counsel and the Board to pursue Section 10(j) injunctions in the following types  of cases :

1. Those alleging Unfair Labor Practice violations involving contract negotiations  that occur during the period after a Union is first  certified to represent employees  when the parties are or should be bargaining for a first collective bargaining agreement;
2. charges involving claims of employee terminations during campaigns for union recognition;
3. employee terminations occurring during the bargaining for an initial collective bargaining agreement;
4. cases involving successor employers refusal to bargain, which involve claims of conduct that  “undermines [the union which will] lead to disaffection, concomitant loss of bargaining power and loss of benefits that cannot be restored by final Board order”; and
5. “cases where a successor employer refuses to hire employees to avoid bargaining with an incumbent union, the potential scattering of those employees creates an even greater risk that a final Board order will not effectively restore the parties to establish a good faith bargaining relationship.”

The reasoning behind the aggressive use of this extraordinary relief is the General Counsel’s view that in cases of these types the passage of time between the filing of the ULP charges and any relief that the Board may ultimately render following an investigation of the charges, the litigation of the issues before an Administrative Law Judge and the issuance and enforcement of a final Board Order, will often render any ultimate findings meaningless.

NLRA Section 10(j), 29 U.S.C. § 160, permits the NLRB to seek injunctive relief in Federal Court if they issue an unfair labor practice complaint “for appropriate temporary relief or restraining order.”  From 2002 through 2010, the NLRB sought between 11 and 23 such injunctions each year.  However, in 2012 and 2013 the NLRB brought 55 such actions and recovered over $5,000,000 in backpay before the unfair labor practice charges were litigated by Administrative law Judges.