Labor Relations Update

NLRB Takes One Step Closer to Expanding The Possible Damages Awarded to Employees Fired in Violation of the Act

On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances.  See Thyrv, Inc. 371 NLRB No. 37 (2021).

The Board’s traditional remedy for unlawful layoffs or terminations requires that these employees be (i) reinstated to their previous position or a substantially equivalent position, and (ii) made whole for any loss of earnings and other benefits incurred as a result of the unlawful layoff or termination.  As part of its “make-whole” relief, the Board has awarded two remedies that may be characterized as consequential damages: (1) reasonable search-for-work expenses, and (2) interim employment expenses.

Even though no party in the litigation asked for the issue to be addressed, the Board utilized its broad discretionary authority to invite the parties and interested amici to brief the following questions:

  1. Should the Board modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where these damages are a direct and foreseeable result of a respondent’s unfair labor practice?
  2. Alternatively, should the make-whole remedy include relief for consequential damages only upon findings of egregious violations by a respondent?
  3. If consequential damages are to be included in make-whole relief, how should they be proved, and what would be required to demonstrate that they are a direct and foreseeable result of an employer’s unfair labor practice?
  4. What considerations support making the proposed change to the Board’s traditional make-whole remedies?
  5. What considerations support retaining the Board’s traditional exclusion of consequential damages from its make-whole remedies?

Interested amici may e-file briefs not exceeding 20 pages in length to the Board by Monday, December 27, 2021.

BREAKING: NLRB General Counsel Issues Memo on Bargaining Obligations Under OSHA’s Vaccination Requirements

On November 10, 2021, General Counsel Jennifer Abruzzo issued a memorandum outlining bargaining obligations under OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).  Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021).

The ETS, which took effect on November 5, 2021, requires employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.”  The ETS, however, provides an exception, permitting employers to adopt a policy either requiring employees to receive the vaccination or submit to regular COVID-19 testing if they opt to remain unvaccinated.  Immediately following the ETS’s implementation, numerous lawsuits challenging the rule were filed resulting in the Fifth Circuit Court of Appeals temporarily staying the ETS on November 6th.

In the memorandum, GC Abruzzo takes the position that “covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment.”  The memorandum argues that the ETS “clearly affects terms and conditions of employment” because of its potential to affect the continued employment of employees who are affected by the rule and thus bargaining is required.  Although Abruzzo acknowledged that there is no duty to bargain where a change in the terms and conditions of employment is statutorily mandated, the memorandum emphasizes the discretion afforded to employers in complying with the ETS and the duty to bargain that arises as a result.  Namely, employers have the option of mandating vaccination for all employees or requiring employees to either become vaccinated or undergo regular testing if they refuse the vaccine.  As the memorandum notes, an employer “may not act unilaterally so long as it has some discretion in implementing” statutory requirements.

Even where the ETS does not provide employers any discretion, Abruzzo goes further, noting that large employers are required to bargain over the effects of their decision to implement changes under the ETS.  The memorandum cites National Labor Relation Board (“NLRB”) precedent for the proposition that even where an employer can unilaterally change policies under federal law, failure to bargain over the effects of the change can constitute a violation of Section 8(a)(5) of the National Labor Relations Act.

Takeaways

Although the memorandum is relatively short, it plainly makes the NLRB’s position known.  Failure to bargain and reach agreement or impasse over: (i) the effects of ETS-compliant policies; or (ii) the employer’s decision about how to comply with the ETS where it is afforded discretion may constitute an unfair labor practice.  While each individual case may differ, employers aiming to comply with the ETS should immediately take steps to bargain with their unionized workforce prior to implementing any policy changes required by the regulation.  As always, we will continue to keep you apprised of the latest developments at the NLRB.

NLRB, DOL, and EEOC Announce Joint Initiative to Combat Worker Retaliation

Today, the National Labor Relations Board (NLRB), along with the U.S. Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC), announced the creation of an interagency initiative to raise awareness of worker retaliation issues. Building upon their pre-existing interagency relationships, the NLRB, DOL, and EEOC seek to further protect workers from unlawful retaliatory conduct, educate the public about unlawful retaliation against workers who exercise their rights under federal labor laws, and engage with key stakeholders, including employers, trade and business associations, labor organizations and civil rights groups.

The initiative is scheduled to officially kick-off on November 17, 2021 with a virtual dialogue with employers on the importance of worker retaliation protections and the agencies’ joint commitment to the “vigorous enforcement” of these protections. In a press release published by the NLRB, DOL, and EEOC, NLRB General Counsel Jennifer Abruzzo explained that “[retaliation] issues cut across multiple worker protection agencies, which is why it is so important to work collaboratively to effectively prevent and forcefully address retaliatory acts against workers.”

The civil law enforcement agencies have not yet provided further information about the full scope of the initiative or how to participate in the “virtual dialogue” scheduled for November 17. As always, we will keep you informed of any updates on this interagency collaboration.

While Democrats Whittle Down Pro-Labor Provisions Of Social Spending Bill, Civil Penalties Remain

As we discussed here, members of the House Education and Labor Committee have been attempting to end-run the procedural hurdles that have prevented the Protect the Right to Organize Act (“PRO Act”) legislation from becoming law, through a process called “budget reconciliation.”  (For a refresher on the PRO Act, see our blog posts on the proposed legislation here and here.)

In September, the Committee released its proposed language for the federal budget incorporating several key provisions from the PRO Act that would have drastically amended federal labor law, such as establishing civil penalties for violations of the National Labor Relations Act (“NLRA”), personal liability for officers and directors, and newly-defined unfair labor practices that would effectively prohibit employers from utilizing some of the economic weapons traditionally thought to be lawful under the NLRA.  Through the budget reconciliation process, these provisions have a greater chance of becoming law where the bill only requires majority support in both the House and Senate and is not subject to a filibuster.

However, as the social spending bill faced challenges from both parties, the Administration presented a revised framework on October 28, 2021, entitled the “Build Back Better Act.”  The new bill  among other major edits, significantly pared down the proposed pro-labor provisions.

Even under the revised framework, there still exists for the first time ever civil penalties for those who commit unfair labor practices. If passed into law in its current form, the Build Back Better Act would:

  • Impose civil penalties of up to $50,000 per violation of the NLRA;
  • Double civil penalties up to $100,000 for NLRA violations that resulted in discharge or serious economic harm where the employer committed another similar violation within the past 5 years; and
  • Assess civil penalties against directors and officers where the facts indicate that personal liability is warranted.

Fortunately, some of the most significant PRO Act-inspired provisions of the prior reconciliation bill have been dropped from this spending bill; specifically, language that would have made it an unfair labor practice to:

  • Permanently replace strikers;
  • Discriminate against a worker who has unconditionally offered to return to work based on participation in a strike;
  • Lockout, suspend, or otherwise withhold employment from employees prior to a strike;
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the Act, such as misclassifying independent contractor or supervisor;
  • Require or coerce employees to attend so-called “captive audience meetings” or other campaign activities;
  • Enter into, enforce, coerce, or retaliate against employees with respect to class or collective action waivers

The revised spending bill framework is now up for discussion and debate in both the House and the Senate. The bill needs majority support in both chambers in order to become law, and the amendments in the proposed language must withstand potential challenges in the Senate (called the Byrd Rule), which (as we discussed here) is intended to limit amendments that change substantive policy of federal law, rather than limited to taxes or spending.  The significantly narrowed labor law amendments in the revised bill would seem to have a greater likelihood of withstanding a Byrd Rule challenge than the prior iteration.

As always, we will monitor this situation and report updates as they occur.

NYC Enacts Severance Pay Requirements for Displaced Hotel Workers

Effective as of October 5, 2021, Int. 2397-2021 requires operators of “transient hotels” (as defined by Section 12-10 of the New York City zoning resolutions) to pay their employees severance pay if: (1) the hotel closed to the public and has not, by October 11, 2021, recalled at least 25% of the number of employees it employed as of March 1, 2020 and has not reopened to the public by November 1, 2021; or (2) the hotel underwent a mass layoff after March 1, 2020 that resulted in the loss of work by at least 75% of employees during any 30-day period. There is an exception for hotels that have closed permanently and are in the process of converting to an alternative use, provided that: (1) the hotel employees were offered severance of at least 20 days’ pay per year of service; and (2) the severance was specifically tied to the conversion.

To be eligible for severance payment, an employee working at a covered transient hotel must have: (a) been employed by the hotel on March 1, 2020 for at least one year; (b) been employed to perform “hotel service” (defined broadly to include any work performed in connection with the operation of a hotel); (c) not been a managerial, supervisory or confidential employee who had the power to exercise control over the management of the hotel; and (d) been laid off after March 1, 2020 due to a closure or mass layoff. Severance payments are owed to all such employees beginning on October 11, 2021, for up to 30 weeks in the amount of $500 per week, or up to a total of $15,000. The obligation to provide severance ends when an employee is recalled, or, for a closed hotel, when the hotel reopens to the public and recalls 25% of its employees. Notably, any severance pay provided to a hotel employee prior to October 11, 2021 does not qualify as a set-off towards the obligations to pay severance to hotel employees after October 11, 2021; however, any severance payments made after October 11 will function as a set-off toward the severance pay obligations under this law. The law will expire and be deemed repealed on June 1, 2022.

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This law brings significant changes for NYC employers in the hotel industry. Employers are advised to review their current practices to ensure they are in compliance with these new requirements, and consult with their Proskauer attorneys regarding next steps.

BREAKING: General Counsel Abruzzo Announces that College Athletes Are Employees

Today, General Counsel Jennifer Abruzzo issued a very significant memorandum on the status of college athletes as “employees” under the National Labor Relations Act. Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act, GC 21-08 (September 29, 2021).

In today’s memorandum, GC Abruzzo reinstates a former GC Memorandum, GC 17-01, which was rescinded by the Trump Board in 2018, and thereby solidifies the General Counsel’s position on a question left unanswered by the Board in its 2015 decision in Northwestern University: Are college athletes “employees” under the National Labor Relations Act? The memo published today indicates that for GC Abruzzo, the answer is “yes”.

Indicative of GC Abruzzo’s strong stance on the employee status of college athletes, Abruzzo made clear in the memo that the correct term for the athletes in question is “Players at Academic Institutions” and not “student athletes,” a term GC Abruzzo asserts has been used strategically by the NCAA to deprive college athletes of workplace protections. Although the Board in Northwestern University declined to exercise jurisdiction over the University’s scholarship football players and declined to decide whether college athletes are statutory employees under the Act, GC Abruzzo determined that the Board’s decision did not preclude a finding that scholarship football players at private colleges and universities, or other similarly situated Players at Academic Institutions, are employees under the Act.

According to Abruzzo, a finding that Players at Academic Institutions are employees is further supported by statutory language and the policies underpinning the Act, as interpreted by the Board. Noting that the term “employee” is broadly defined under Section 2(3) of the Act with only a few enumerated exceptions—none of which include football players or other college athletes—and that the Board has often applied broad common-law agency principles when determining employee status, GC Abruzzo concluded that the law fully supports a finding that the football players in Northwestern University, and other similarly situated Players at Academic Institutions, are employees under the Act where:

  • The athletes performed a service for the University and the NCAA (i.e. played football), and generated considerable profit and other benefits for the University;
  • The athletes received significant compensation, including financial support for the cost of tuition, room and board, and stipends for other academic and personal expenses;
  • The NCAA controlled players’ terms and conditions of employment by establishing maximum practice and competition hours, rules concerning scholarship eligibility and minimum GPA requirements, and restrictions on the amount of gifts that players may accept; and
  • The University controlled the “manner and means of the players’ work on the field and various facets of the players’ daily lives to ensure compliance with NCAA rules”.

In further support of her position that certain Players at Academic Institutions are statutory employees under the Act, GC Abruzzo cited to the Supreme Court’s recent decision in NCAA v. Alston, where the Court rejected the NCAA’s antitrust defense premised on the asserted “amateurism” in college sports. GC Abruzzo further stated that changing NCAA rules and societal understanding of college sports have upended traditional notions that Players at Academic Institutions are amateur athletes. These changes, as well as increased collective action by college athletes across college campuses, in GC Abruzzo’s opinion, liken Players at Academic Institutions to professional athletes and entitle college athletes to the protections offered under the Act.

GC Abruzzo also took this opportunity to advise Regions, universities, and college athletes that misclassifying these “Players at Academic Institutions” as “student athletes” who are not entitled to the protections of the Act will be pursued, in appropriate cases, as an independent unfair labor practice and a violation of the Act. As such, Regions are instructed to submit all cases involving the misclassification of Players at Academic Institutions to Advice, where GC Abruzzo will have the ability to help shape Board policy on this issue.

Perhaps just as monumental as the body of GC 21-08 are the pronouncements tucked into the footnotes of the memo. Without much fanfare, GC Abruzzo stated that student teachers and research assistants are employees under the Act, noting that she “will continue to maintain the prosecutorial position that student assistants, as well as medical interns and non-academic student employees, are protected by the Act.” Additionally, GC Abruzzo rearticulated elements of her prosecutorial agenda in the footnotes of her most recent memo, instructing Regions to submit cases involving the application of Bethany College (the NLRB declined jurisdiction over religiously-affiliated educational institutions) and Velox Express, Inc. (NLRB found no violation of the Act where employer misclassified employees as independent contractors) to Advice before issuing a decision. Finally, in the very last footnote of the memorandum, GC Abruzzo indicated that, in future cases involving alleged violations of the Section 7 rights of Players at Academic Institutions, she would consider a joint employer theory of liability and pursue charges against the NCAA and other athletic conferences that exercise control over the Players.

Takeaways

Today’s memo from the General Counsel is just one in a series of memos in which GC Abruzzo has taken a pro-labor stance and has made clear her intention to help shape national labor law policy from her position as GC. The memo also foreshadows a much broader application of the statutory term “employee” under Section 2(3) of the Act—encompassing both college athletes and student teachers and research assistants and potentially others. As General Counsel Abruzzo begins to issue complaints and to bring unfair labor practice cases before the Biden Board, we will see if she is able to accomplish her objectives of molding federal labor policy. As always, we will keep an eye on the situation and keep you updated on the latest news from the Board.

D.C. Circuit Court Rules NLRB’s Access to Property Test is Arbitrary

General Counsel of the National Labor Relations Board, Jennifer Abruzzo, is already on her way to accomplishing one of the objectives she laid out in her recent Advice-Memorandum 21-04 (discussed here earlier on this blog). In the GC’s memo, she identified a number of Board decisions to re-evaluate, including Bexar County Performing Arts Ctr. Found., 368 NLRB No. 46 (Aug. 23, 2019).  This Trump-era NLRB decision limited the circumstances in which a contractors’ employees could access private property of another employer to engage in Section 7 activity. On August 31, 2021, the D.C. Circuit Court overturned the 2019 Bexar County access to property standard. Local 23, American Federation of Musicians v. NLRB, No. 20-1010, at *6 (Aug. 31, 2021).

Procedural History: Bexar’s 2019 Standard

The issue in Bexar County arose after the Bexar County Performing Arts Center blocked musicians who work for a symphony that performs at their auditorium from protesting a ballet company inside the arts center. The musicians are represented by an American Federation of Musicians affiliate. The NLRB ruled that a property owner may lawfully prohibit the off-duty employees of its on-site contractors (or licensees) from accessing its property to engage in Section 7 activity unless (1) the off-duty employees regularly and exclusively work on the property, and (2) the owner of the property cannot show the off-duty employees do not have one or more reasonable non-trespassory alternatives to communication their message. Bexar County Performing Arts Ctr. Found. 368 NLRB No. 46 at *3 (Aug. 23, 2019).  The Board noted it would consider contractor employees to have worked “regularly” on the owner’s property only if the contractor regularly conducted business or performed services there. Id. The Board also defined employees to be considered to have worked “exclusively” on the owner’s property if they performed all of their work for that contractor on the property, even if they also worked a second job elsewhere for another employer. Id.

D.C. Circuit Court Holds that Board’s Decision is Arbitrary

The D.C. Circuit Court held that the Board’s decision is arbitrary in the way that it implements its new standard for determining when a property owner may prohibit an onsite contractor’s employees from conducting labor organizing activity on the premises. The Board held that the musicians did not work at the center regularly even though they performed there 22 weeks a year, but said that contract workers who weekly stock vending machines do regularly work there. The D.C. Circuit reasoned that this was arbitrary. Similarly, the D.C. Circuit held that the use of “exclusively” was also arbitrary because it could bar workers with substantial presence at a property if they do a small amount of work for the owner off property while granting it to workers with only a minimal, yet exclusive, presence.

The Court also took issue with how the NLRB applied the second part of the test, which requires property owners to show that workers had other reasonable means to communicate their message. Even though the Board held the burden was on the owner, it did not require Bexar County, the owner of the property, to prove that it had met the threshold.

The Court remanded the case back to the Board with its new-Democratic majority Board, noting that the Board may decide whether to proceed with a version of the test it announced and sought to apply in this case or develop a new test altogether.

Takeaways

The NLRB in Bexar County sent a strong message that private property rights are paramount when it comes to non-employees and Section 7 rights, except in very limited circumstances. At the time of the initial NLRB decision, NLRB Chair Lauren McFerran dissented, cautioning that the ruling effectively eliminated important labor-law rights from employees who work on property owned by an entity other than their employer. With the D.C. Circuit’s ruling, the newly constituted Democratic majority of the NLRB will have a chance to undo the holding of the original Bexar case and will likely imposed a much more lenient standard consistent with Member McFerran’s dissent. As always, we will continue to keep you apprised of all the latest development at the NLRB.

 

House Committee Attempts to Secure “PRO Act” Changes to Labor Law Through Reconciliation Process of Next Federal Budget

As we have discussed in previous posts (see here and here), the Protect the Right to Organize Act (“PRO Act”), which would drastically and fundamentally change the nature and scope of the National Labor Relations Act (“NLRA”) and labor-management relations in the private sector, has languished in the U.S. House of Representatives over the last couple of years, with uncertain (at best) hopes of advancing through the regular rules of the U.S. Senate under the current configuration of that legislative chamber.

In an effort to ensure that certain key aspects of the PRO Act become law, the House Education and Labor Committee, on September 8, 2021, released language that its members hope become part of the federal budget through the process known as “budget reconciliation.”   This process is a legislative measure relating to federal spending that only requires a majority of support in both the House and Senate, and cannot be stopped by a filibuster in the Senate.  If passed, these amendments will take effect on January 1, 2022.

The following represent the key aspects of the PRO Act that were included in the proposed language from the House Committee:

New liability for employers found to have committed unfair labor practices:

  • Civil penalties up to $50,000 per violation;
  • Civil penalties up to $100,000 per violation within the previous five years that resulted in discharge of or “serious economic harm to an employee”; and
  • Personal liability for directors and officers for unfair labor practices to be determined by the Board based on the particular facts and circumstances presented.

Perhaps, most significant, the budget reconciliation provisions would drastically eliminate a number of economic weapons or tools currently available to employers during labor disputes and/or organizing campaigns.  Specifically, if passed, it would be an unfair labor practice for employers to promise, threaten, or take the following actions:

  • Permanently replace strikers;
  • Discriminate against an employee who is working or has unconditionally offered to return to work because the employee participated in or supported a strike;
  • Lock out employees (prior to a strike);
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the Act, such as misclassifying independent contractor or supervisor);
  • Require employees to attend so-called “captive audience” speeches or meetings during a union-organizing campaign; and
  • Enter into, attempt to enforce, coerce or retaliate against class/collective-action waiver agreements.

Notably, these new prohibitions would be enforced as if they were existing unfair labor practices under the NLRA. The enforcement would result in civil monetary penalties, rather than a requirement for a person or company to cease and desist from the prohibited behavior.

Based on the language proposed by the House Committee, it appears many of the key sweeping changes that advocates of the PRO Act sought in the recent iterations of the legislation have made it through to this proposed bill.

It is far from certain whether all of the amendments in the proposed language are appropriate for this legislative procedure, given many (if not all) of these proposed amendments significantly change substantive policy of federal labor law.  The Senate has a rule (called the Byrd Rule), intended to limit extraneous provisions from inclusion in reconciliation bills, such as legislative items not related to spending or taxes, including those with no budgetary effect.  Any Senator may raise a point of order that a provision of the reconciliation bill is extraneous, and ultimately, the Senate Parliamentarian decides whether a Byrd rule violation has occurred and those provisions can be struck.  (A Byrd rule objection can be waived by 60 votes from the Senate.)

We will of course closely monitor the progress of this bill through the budget reconciliation process, and keep you updated along the way.

NLRB General Counsel Abruzzo Encourages Regions to Utilize More Significant Remedies When Resolving Unfair Labor Practices

In keeping with the momentum of her Office, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum yesterday to all Regional Offices advising them to request that the Board exercise its broad discretion in fashioning remedies for workers impacted by unfair labor practices, indicating the General Counsel’s intent to impose more onerous penalties on employers for violations of federal labor law. Seeking Full Remedies GC Memorandum 21-06, (September 8, 2021).

In her most recent memorandum, General Counsel Abruzzo outlines the types of remedies that Regions should be requesting from the Board based on the type of unfair labor practice involved. Notably, the General Counsel encourages Regions to seek consequential damages to cover the cost of economic losses—such as health care expenses incurred as a result of an unlawful termination of health insurance—in appropriate cases, citing the Board’s stated willingness to explore this new remedy. Additionally, the General Counsel advises Regions to actively seek Gissel bargaining orders in cases involving an ongoing union organizing drive. Lastly, of particular note, the memorandum encourages Regions to seek Board Orders requiring employers to distribute the Notice to Employees through text message and on its social media websites and internal apps that are used by the employer to communicate with its employees—in addition to physical posting and emailing.

Other remedies encouraged in the memorandum, broken down by unfair labor practice, include:

  • Unlawful firings of discriminatees: Regions are advised to seek compensation for consequential damages, front pay, and liquidated backpay. Where the unlawful terminations involve undocumented workers, Regions should seek additional remedies, including compensation for work performed under unlawfully imposed terms and employer sponsorship of work authorization, intended to prevent the employer’s unjust enrichment from its unlawful conduct.
  • Unlawful conduct during organizing drive: While not an exhaustive list, the General Counsel encourages Regions to seek remedies that will (1) facilitate union access by requiring an employer to provide employee contact information or by granting equal access to the employer’s bulletin boards; (2) reimburse unions for organizational costs, including costs incurred during a re-run election; (3) require a public reading of the Notice to Employees; (4) require the employer to provide training to its employees, supervisors, and managers on employee rights under the Act; and (5) impose broad cease-and-desist orders.
  • Unlawful failures to bargain: Regions should seek alternative remedies including bargaining schedules (i.e. mandatory schedules requiring the employer to bargain for a minimum number of sessions of pre-determined length until an agreement or impasse is reached); submission of periodic progress reports to the Agency on the status of bargaining; an insulation period during the compliance process following an unfair labor practice finding during which the union’s status as bargaining representative could not be challenged; and reimbursement of collective bargaining expenses, among other possible remedies.

Takeaways

Counting this most recent memo, General Counsel Abruzzo has issued three advice memoranda since being sworn into office on July 22, 2021.  Moreover, she indicated that she plans to issue her fourth memo in short order on the types of remedies Regions should incorporate into settlement agreements. In less than two months in office, General Counsel Abruzzo has taken the NLRB by storm and has kick-started a rapid change in labor law policy. This memo should send a clear signal to employers that the NLRB will be seeking to impose more significant remedies and consequences for employers found by the Board to have committed an unfair labor practice. As always, we will keep you apprised of the latest updates from the NLRB.

New NLRB General Counsel Signals Greater Utilization of 10(j) Injunctions

The recently-sworn in General Counsel of the National Labor Relations Board, Jennifer Abruzzo, has had a busy month, setting the stage for a slate of new enforcement initiatives.  First, the GC issued Advice Memorandum 21-04 (discussed here last week), identifying numerous Board decisions that are all but certain to be reassessed once the full complement of five Board members is seated in the coming weeks.  The GC’s memo also highlighted expected new initiatives in certain areas, including employee status, Weingarten rights, the right to strike, and others.  Just one week later, the GC issued GC Memorandum 21-05, “Utilization of Section 10(j) Proceedings,” re-affirming the NLRB’s emphasis on seeking injunctive relief in federal court for certain urgent matters pursuant to Section 10(j) of the Act.

Reaffirming Agency Initiatives Regarding 10(j) Injunctions

The GC started her memorandum by stating, “Section 10(j) injunctions are one of the most important tools available to effectively enforce the Act”.  The GC illustrated a policy goal that such injunctions should continue to be a priority in appropriate cases.  While this does not necessarily represent a policy overhaul like the GC’s previous memorandum, it is a reminder of the shifting winds at the NLRB.

Section 10(j) of the National Labor Relations Act allows the Board to seek temporary injunctions in federal court while cases are being litigated in order to ensure that any remedy the Board might issue would not be moot or hollow.  Cases where 10(j) injunctions may be appropriate are first identified by the Region processing the underlying charge, then referred to the GC, and the GC must then obtain Board authorization before seeking an injunction in federal court.

In her memorandum, the GC identifies unfair labor practices occurring during organizing campaigns, shortly after certification, and successorship cases as those where Regions should pay particular attention to the question of whether a 10(j) injunction may be appropriate.  However, the GC did not stop there, and instead stated that Regions should continue to consider injunctive relief in all cases where an alleged unfair labor practice could affect employees’ Section 7 rights.  While the GC noted that Regions have historically done well to address potential injunctions at the outset of appropriate cases, she nonetheless stressed the importance of early action when an injunction appears appropriate in order to maintain or restore the status quo.

Takeaways

Though more of a re-emphasis to the Regions rather than a new initiative or precedent shift, GC Memorandum 21-05 nonetheless tips the new GC’s hand with respect to upcoming Board enforcement initiatives.  Particularly in light of last week’s Memorandum 21-04, it is clear that the new GC (predictably) has bold plans for significant changes, and will not hesitate to use tools such as 10(j) injunctions to achieve them and to bring additional pressure on employers.

The proof will be in the pudding as to whether the Regions more frequently seek 10(j) injunctions and under what circumstances.  As always, we will continue to keep you apprised of all the latest developments at the NLRB and the impact of this recent Advice Memorandum issued by the GC.

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