On October 20, 2022, National Labor Relations Board ("NLRB" or "Board") General Counsel Jennifer Abruzzo issued Memorandum GC 23-01, which instructs the Regions to "routinely attempt to obtain full interim relief" when seeking injunctive relief under Section 10(j) of the National Labor Relations Act ("NLRA"). For context, Section 10(j) authorizes the Board to seek a temporary injunction against an employer in federal court when a matter is being litigated before an ALJ or the Board.
In the memorandum, the General Counsel instructs the Regions to first attempt to settle the entire administrative case. Failing that, Regions should offer the employer the "opportunity to voluntarily agree to an interim settlement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain" while the underlying charge is litigated before the Board or an ALJ. According to the General Counsel, this framework will: 1) increase settlements, 2) reduce litigation, and 3) conserve resources for the Agency and all parties involved. Regions are further directed to seek the described interim relief where "appropriate," including in cases involving discharges during organizing campaigns, alleged violations of the Act during initial bargaining, and alleged unlawful withdrawals of recognition.
Whether these instructions will achieve their desired ends, though, is up for debate. Ultimately, the General Counsel's framework could be viewed as forcing employers to concede that an action was unlawful before the conduct is actually ruled upon. As an example, should an employer lawfully discharge employees during an organizing campaign, the employer would have to bring those employees back to work to avoid defending an injunction action while simultaneously defending the terminations before the Board or the ALJ. Stated another way, to avoid injunction proceedings, the employer would be forced to bring employees who it lawfully discharged back to work, only to potentially secure a decision from the Board that the terminations were lawful. To be sure, absent an agreement to settle the 10(j) portion of the charge, the employer would be forced to litigate whether injunctive relief is appropriate while also defending the Charge. But this has always been the case, and the General Counsel's new 10(j) settlement procedures as described in the memorandum add little incentive for employers to settle cases. Should an employer come up against a request for interim relief, they should think carefully about whether this new form of interim relief makes sense. Employers with questions on how to navigate the 10(j) process should consult with a labor attorney.
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