A new presidential administration means a new General Counsel (GC) for the National Labor Relations Board. The change at the NLRB brings new guidance and priorities for the board, including more NLRB injunctions. The GC issued new guidance that impacts employers’ rights during an organizing campaign or while engaged in collective bargaining.
Section 10(j) of the Act, traditionally a section of particular interest to most GCs, again takes center stage. The section of the Act deals with the Board’s ability to enforce its will through injunctive relief against an employer. An injunction could stop employers from making business decisions if the Board deems them to be unfair to the employees. Activities such as termination of employees, hiring of new employees during a campaign, and subcontracting when necessary become forbidden actions when subject to an injunction.
NLRB Injunction – Subcontracting
One area often targeted by unions and vulnerable to increased use of section 10(j) is subcontracting. If the Board believes management is using subcontracting to avoid its obligations under an existing collective bargaining agreement or the Act an injunction eliminates the company’s right to subcontract. Many companies, as part of the ordinary course of business, require the use of subcontracted workers. However, the new general counsel in its recent memo signaled its intention to push the Board to view subcontracting through a much more narrow lens. It could become much more challenging for companies to make subcontracting decisions. Subcontracting has a prominent role in many business. This issue is something management should keep a close eye on in the months ahead. A subcontracting decision that is now acceptable could soon put management at risk of legal action by the Board including an injunction forcing compliance.
NLRB Injunction – Staffing
The acts of hiring and firing employees comes under increased scrutiny when a company is facing a union organizing campaign. Hiring new employees during a campaign can appear as an attempt to “stack the deck” for an upcoming vote. Terminating employees during the campaign or bargaining, often viewed as retaliatory, is also frequently challenged by unions. Hiring and firing decisions are typically approached by businesses carefully, union or non-union. The threat of injunction while a Board investigation or even months long litigation ensues handcuffs and employer’s ability to engage in these basic business functions.
Injunction – Extraordinary Relief
The new GC’s push for increased use of injunctions is that such a push is contrary to long-held standards surrounding injunctions. The courts have long-held injunctions are “extraordinary relief”. The GC’s push to make them commonplace flies in the face of precedent. There are certainly times when an injunction is warranted. Extra ordinary implies such is the exception, not the rule. The GC indicates a clear direction to create a rule. Labor firms across the country will challenge the actions elicited by this memo. Such challenges, however, take time. Until the courts reign in this overreach, employers should beware.
