Today, in a memorandum for all Regional Directors, Officers-in-Charge, and Resident Officers, General Counsel Jennifer Abruzzo emphasized the importance of 10(j) injunction proceedings, affirming the Agency’s priority in continuing efforts to obtain immediate relief in cases that present a significant risk of remedial failure.
Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek temporary injunctions against employers and unions in federal district courts to stop unfair labor practices while the case is being litigated before administrative law judges and the Board. In other words, if the amount of time it takes to litigate the case would render the remedy less effective, a 10(j) injunction can be sought to allow interim relief. These temporary injunctions are needed to protect the process of collective bargaining and employee rights under the Act, and to ensure that Board decisions will be meaningful.
“I believe that Section 10(j) injunctions are one of the most important tools available to effectively enforce the Act. Effective enforcement requires that we timely protect employees’ Section 7 right to exercise their free choice regarding engaging in union and protected concerted activities, including organizing and collective bargaining,” said General Counsel Abruzzo in her memo. “Section 10(j) is the statute’s strong weapon that should be used by the Agency to ensure that employees’ rights will be adequately protected from remedial failure due to the passage of time. During my tenure as General Counsel, I intend to aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”
In order to initiate an injunctive action in District Court to obtain interim relief, the Regional Director must identify the need and submit it to the Injunction Litigation Branch, which then makes recommendations to the General Counsel, who ultimately seeks Board authorization. Once it is authorized, Regions would then file with the District Court, absent settlement.
The memo also emphasizes the extremely positive results that recent Section 10(j) initiatives have received. For instance, the success rate in authorized Section 10(j) cases—the injunctions that have been granted or settled—is 91.7% to date in Fiscal Year 2021 and was 100% in Fiscal Year 2020. These successes have protected the collective bargaining rights of thousands of employees, restored collective bargaining relationships, and obtained interim reinstatement for unlawfully discharged union supporters.
Recently, the NLRB obtained an interim Gissel bargaining order in a unit of about 1,350 hotel and casino employees in NP Red Rock, LLC. In Amerinox Processing, Inc., the NLRB obtained interim reinstatement for five union activists discharged during an organizing campaign. Additionally, the NLRB obtained interim recognition and bargaining orders in ADT, LLC, and Nexstar Broadcasting, Inc., both involving withdrawals of recognition, and in NRT Bus, Inc., a successor refusal to bargain.