NLRB General Counsel Doubles Down on Injunctive Relief

Following last month’s Supreme Court decision holding that a stringent test applies to lawsuits filed by the National Labor Relations Board (the “Board”) that seek injunctions to halt serious labor violations (as discussed in our June 14, 2024 E-lert), the Board’s General Counsel has issued a memorandum that reaffirms her commitment to the use of injunctive relief.

Under Section 10(j) of the National Labor Relations Act, the Board may seek injunctive relief against both employers and unions to stop unfair labor practices. However, there was a split among the U.S. Circuit Courts of Appeals as to the standard that applies to preliminary injunctions, with the Board and several Circuits employing a lower standard. The Supreme Court, however, held that a more difficult standard applied.

In her memorandum, the General Counsel asserts that the Supreme Court’s decision will not significantly impact the Board’s injunctive efforts, noting that it has successfully obtained such relief in jurisdictions utilizing the stricter test. This is in line with a previous memorandum in which she advocated for the aggressive use of injunctions against employers in organizing campaigns, as discussed in our February 28, 2022 E-Update, as well as a 2021 memorandum in which she emphasized the importance of injunctive relief.

Therefore, employers (both union and non-union) should be aware that the current Board will continue to pursue injunctions against those it deems to have engaged in unfair labor practices – and certainly it is far more willing to find such conduct than prior Boards.