NLRB General Counsel Takes Aim at Employer Conduct During Union Elections

By Greg Hoff posted 02-04-2022 12:50


In a memo released this week, National Labor Relations Board General Counsel Jennifer Abruzzo urged staff lawyers to more aggressively seek injunctive relief against employers for their alleged misconduct during union organizing campaigns.

10(j) Injunctive relief authority explained: Under Section 10(j) of the National Labor Relations Act, the Board and its General Counsel are empowered to obtain court orders against employers to put a halt to alleged unfair labor practices as they are happening, rather than waiting for a filed complaint and a formal adjudication by the Board, a process which often takes months or years. “10(j) injunctive relief” has been used increasingly sparingly by the Board in recent years—in the last three years combined, the Trump-era Board sought injunctive relief less often than in a single year—2012—during the Obama-era Board.

Renewed emphasis on injunctive relief: General Counsel Abruzzo’s memo makes it clear that her office and the current Board will reverse this downward trend and make substantial use of their injunctive relief authority. “As General Counsel, I believe it is incumbent upon the Agency to consider seeking Section 10(j) injunctions immediately after determining that workers have been subject to threats or coercive conduct during an organizing campaign…. Under the weight of a federal district court’s order, employers will be less likely to take further unlawful action to interfere with employees’ rights.”

Practical impact for employers: Although Abruzzo’s memo does not actually change labor law—10(j) injunctive relief has always been available to the Board and its General Counsel—it nevertheless serves as notice that Abruzzo and the current Board will be particularly aggressive in seeking court orders against employers for conduct they deem to have chilled employee organizing campaigns. Employers should tread carefully in communications with employees during organizing campaigns or risk being dragged into federal court by the Board, where historically it has been successful in obtaining injunctive relief and/or a settlement to a similar effect.

Outlook: General Counsel Abruzzo and the current Democratic-majority Board have made it no secret they will utilize every possible tool to go after employers for alleged labor law violations, and in particular during organizing campaigns. Employers should expect to see a substantial increase in the use of 10(j) injunctive relief authority as the Board and its lawyers turn up the heat on employer conduct during union elections.

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