Not surprisingly, the top attorney for the National Labor Relations Board (“Board”) appointed last November, Richard Griffin, recently declared the Board’s commitment to making it easier to take employers into federal court and temporarily stop alleged unfair labor practices.
Under Section 10(j) of the National Labor Relations Act, the Board may petition a federal district court for interim injunctive relief until the final resolution of an unfair labor practice charge where an unfair labor practice creates the risk of remedial failure, i.e., by the time the charge is resolved, the damage will be done and beyond repair. The Board is tasked with identifying such cases early in the investigative process and seeking injunctive relief.
In his April 29 Memorandum (“Memo”), Griffin stated “I intend to aggressively seek 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders. . .” The Memo mentions various cases where 10(j) relief has historically been sought, including discharges during an organizing campaign and issues arising during negotiations for first contracts. The Memo goes on to detail Griffin’s particular interest going forward in seeking 10(j) relief in cases involving a successor’s refusal to bargain or refusal to hire. According to the Memo, Griffin’s predecessors beginning in 2005 have had similar initiatives for 10(j) relief. The Memo declares these initiatives a success, stating that in 2012 and 2013, the Board sought 10(j) relief in 19 first contract bargaining cases with an 84% success rate. Also during those years, the Board sought this relief in 39 cases involving discharges during organizing campaigns with an 80% success rate.
While we do not think there will be any major change in the way the Board is conducting business, employers should be aware of this extreme remedy and the steep time investment and legal fees that defending against this remedy could cost.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
