On February 1, 2022, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB”) announced a new initiative encouraging NLRB Regions to seek injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA” or “Act”) where workers have alleged unlawful threats or other coercion by employers during union organizing campaigns—even if the employer had not followed through on its threat or coercive action.  This important announcement comes on the heels of the GC’s August 2021 Memorandum, illustrating the GC’s re-affirmation of the NLRB’s emphasis on seeking injunctive relief in federal court for certain urgent matters pursuant to Section 10(j) (discussed previously here), and the November 2021 Memorandum instructing Regions to seek full and immediate remedies regarding immigration-related threats and retaliatory conduct at every stage of an unfair labor practice case, including 10(j) injunctive relief.

As brief background, Section 10(j) of the 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 describing the new initiative, the GC explained that injunctive relief under 10(j) is typically sought once an employer has already followed through on its threats to terminate union supporters or take other adverse action against employees.  Under the new initiative, however, Regions are encouraged to consider seeking injunctions “immediately after determining that workers have been subject to threats or other coercive conduct during an organizing campaign, before an employer follows through on its threats or coercion.”  According to the GC, “threats or other coercive conduct need to be promptly stopped, not only to erase the chilling impact they have on employees, but to prevent escalation of the words into action.”

The Memorandum requests that the Regions promptly investigate threats or other coercive conduct made during a union organizing drive and immediately submit those cases for consideration of injunctive relief—even in the absence of any employee discharges or other alleged violations under Section 8(a)(3) of the NLRA.

In addition, the GC advised that the NLRB’s Section 10(j) Manual will be updated to include “cases where employers swiftly react to organizing efforts with threats or coercion, even in the absence of other unlawful action,” to the list of cases appropriate for Section 10(j) injunctions.

Based on this Memorandum, the GC intends to expand the use of 10(j) injunctive relief during organizing campaigns purportedly to avoid “irreparable harm” suffered by the employees under the circumstances outlined above.  The stated goal of the policy is to enjoin an employer’s conduct in such a manner that would prevent the escalation of unlawful threats or coercive conduct that would ultimately harm the employees’ Section 7 rights.

Since 10(j) injunctions are litigated directly in federal district courts—not before an Administrative Law Judge and then the Board, with the right to appeal to federal circuit courts, like the manner in which the merits of an unfair labor practice charge are litigated—the federal district and appellate courts will ultimately have the last word on whether the conduct outlined by the GC in the Memorandum warrants the extraordinary remedy of injunctive relief.

We will keep you posted.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.