Ninth Circuit Endorses NLRB General Counsel's Procedural Authority to Seek 10(j) Injunctive Relief

by Tedd J. Kochman

Among the more significant initiatives that NLRB Acting General Counsel Lafe Solomon has pressed for is the implementation of a program to streamline the process for seeking Section 10(j) injunctive relief ‑ and to expand the substantive scope of when to pursue such serious relief. Section 10(j) of the National Labor Relations Act (NLRA) permits the NLRB to seek a federal court injunction to proscribe unions and employers from committing unfair labor practices – the intended purpose being to use such drastic court-sought remedies where needed to maintain the status quo while a matter is pending before the Board.

While Solomon focuses on the Section 10(j) program as a “top priority,” some have questioned whether the Board’s General Counsel even possesses the statutory power under the NLRA to approve independently such direct court action without the NLRB itself becoming involved.

On July 13, 2011, the U.S. Court of Appeal for the Ninth Circuit approved the Acting General Counsel’s ability under the NLRA to render independent decisions to pursue 10(j) injunctive relief. In Frankl v. HTH Corp., (July 13, 2011, No. 10-15984, 9th Cir.), the Ninth Circuit both substantively and procedurally upheld a prior federal court injunction issued by the U.S. District Court for the District of Hawaii requiring the employer, among other things, to recognize and bargain with the union.

The importance of this decision by the Ninth Circuit is much less about its finding that the injunction warranted affirmation on the merits. The noteworthy aspect of this case was whether the district court had the power to issue the injunction, as the underlying petition to the district court for 10(j) relief was solely provided by the approval of the NLRB General Counsel, and not individually endorsed by the NLRB members themselves.

The Ninth Circuit joins the Fourth, Fifth and Eighth Circuits in upholding the statutory appropriateness of the Board’s delegation to its General Counsel of the power to decide in which cases to petition federal courts for interim injunctive relief under Section 10(j). This decision supports the Board’s clear desire to effectively treat the 10(j) injunctive relief process with the same speed and expedited nature as its approach in 10(l) cases, which generally involve egregious acts of unlawful activities and business interference by labor organizations or their agents.

Employers should continue to engage in comprehensive training of managers and labor relations teams and be especially dedicated to following established non-discriminatory disciplinary actions in the context of union organizing drives. As stated by the Board, and acted upon since September 2010, the “nip in the bud” cases ‑ where alleged union supporters are discharged during claimed organizing activity ‑ is among the Acting General Counsel’s top priority for injunctive 10(j) activity.