The National Labor Relations Board has urged a federal appellate court to reject limitations on its authority to seek emergency injunctions preventing employers from taking actions that could interfere with workers’ rights. The NLRB is pushing back against circuit court decisions that have restricted when the agency can obtain preliminary relief. The dispute centers on how much deference courts should give the NLRB when the agency seeks to maintain status quo during unfair labor practice proceedings.
Section 10(j) of the NLRA grants federal courts authority to issue injunctions to preserve conditions during NLRB investigations and proceedings. However, different circuits have developed varying standards for when such injunctions are appropriate. Some courts apply high bars requiring the NLRB to prove likely success on the merits; others are more permissive, focusing primarily on irreparable harm.
The NLRB contends that overly restrictive standards undermine its effectiveness and allow employers to violate the law with impunity during the months or years that unfair labor practice cases take to resolve. The agency argues that courts should preserve working conditions as they existed prior to alleged violations.
Construction contractors facing NLRB investigations or unfair labor practice charges should understand that injunction decisions vary by circuit. Some circuits favor the NLRB; others impose stricter requirements. Contractors should immediately consult employment counsel if the NLRB seeks preliminary relief, as the applicable standard significantly affects litigation strategy.
Success in resisting injunctions depends partly on location and applicable circuit court law. What succeeds before the Sixth Circuit may fail before the Second Circuit.
Employers facing possible NLRB actions should:
• Understand that injunctions remain available to the NLRB despite recent restrictions
• Recognize that circuit location matters significantly
• Prepare comprehensive arguments about irreparable harm if injunction is sought
• Document why maintaining status quo would harm operations
• Consult counsel immediately upon receiving NLRB demands
• Understand that even if injunction is denied, underlying liability may remain
• Avoid conduct that appears to punish workers for union activity
The NLRB’s push for broader injunction authority suggests courts will face continued pressure to define appropriate standards.
Appellate courts will continue grappling with appropriate standards for NLRB injunctions. The Supreme Court may eventually need to clarify national standards if circuit splits become too significant. For construction contractors, expect continued uncertainty about injunction availability depending on location.
For further details, please contact the lawyers at Tobia & Lovelace Esq., LLC at 201-638-0990.