Seyfarth Synopsis: On June 20, 2018, Peter B. Robb, General Counsel for the NLRB, directed regional offices to continue aggressively pursue temporary injunctions to stop categories of potentially unfair labor practices
In a newly released memorandum, National Labor Relations Board ("NLRB") general counsel, Peter B. Robb ("Robb") urged regional offices to continue to pursue Section 10(j) relief as an "important tool" for effective enforcement of the National Labor Relations Act ("NLRA").
Section 10(j) of the NLRA authorizes the NLRB to seek temporary injunctions in federal district courts against employers and unions while a case is being litigated before the administrative law judges and the Board. Robb touts that "in [his] first six months in office, [he] sent 11 cases to the Board for 10(j) authorization, receiving authorization to proceed" in all of them.
The General Counsel urges regional offices to submit recommendations to the Injunction Litigation Branch of the Board to ask whether or not to seek an injunction for certain types of cases that will most likely warrant a 10(j) injunction. Robb described them as unfair labor practices that may lead to "remedial failure," including:
- Discharges that occur during an organization campaign;
- Violations that occur during the period following certification when parties should be attempting to negotiate their first collective-bargaining agreement; and
- Cases involving a successor's refusal to bargain and/or refusal to hire.
Ultimately, Robb notes that "[o]f upmost importance" is that regions expedite the processing of any potential 10(j) case that raises a threat of irreparable harm or remedial failure. The memo explains that the "threshold for proving a violation to a district court is very low" and in light of the highly deferential standard, it doesn't serve the NLRB's purposes to delay seeking an injunction solely to strength the theory of violation or merit within the case.
Employers should be mindful of this initiative and, as always, prepared to defend against a possible 10(j) injunction, especially in those categories of cases identified by Robb as appropriate for such extraordinary relief.
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