Fair warning: I’m going on a bit of a legal ramble today on the abuse of the 10(j) injunction.
This week the NLRB proudly announced a 10(j) injunction action filed against Starbucks in Buffalo. The suit asks a federal court in Buffalo to issue a nationwide injunction against Starbucks for alleged (and unproven) unfair labor practices (ULPs) during the union elections held late last year.
In August of 2021 and again in February of this year NLRB General Counsel Abruzzo issued memos encouraging the Regions to aggressively seek injunctive relief under Section 10(j) whenever possible. The press release on the Starbucks case explains that:
Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations.
This brief summary highlights the problems inherent with the way the 10(j) injunction is being used on the heels of the Abruzzo memos. First, let’s double-click on that “passage of time” clause. The “passage of time” in unfair labor practice charge cases like this is completely under the control of the Regional Director. These charges have been pending for more than six months and are just receiving a fact-finding hearing on July 11.
Part of the reason it’s taking so long is the consolidated complaint filed against Starbucks alleges over 200 unfair labor practices. It is worth noting that the vast majority of these allegations are the same allegation repeated multiple times, because they allege the same thing happened at multiple stores. Many of these alleged ULPs are vague (the company filed a motion for clarification on two dozen of the allegations, which instead of clarifying the Region opposed). Some are over new legal theories like currently lawful conduct (such as mandatory meetings) that the General Counsel wants to outlaw.
There is no way to determine prior to a fact-finding hearing whether any of these vague allegations have evidence to back them up. That’s because there is no discovery in the leadup to an a ULP hearing – it is literally trial by ambush. All the employer has to go on is whatever vague allegations are in the complaint. The Region’s attorney has an incentive to keep the allegations vague and to keep in allegations they can’t really prove because it forces the company to waste time trying to anticipate what the Region might spring on them. It’s not uncommon for the Region to drop many allegations at the outset of a trial because they don’t have witnesses or evidence to back them up.
This illustrates the second major problem with these 10(j) cases. A federal judge is asked to decide whether to enjoin alleged practices that are vague and unproven. The legal standard in 10(j) cases is quite low, and the courts give deference to the agency. Some Circuits require the Board to prove “reasonable cause” to believe violations have occurred. Others consider a variety of factors, such as the likelihood of success and whether irreparable harm will occur without an injunction. But in either case the Board does not have to prove that the allegations happened, like they would in a hearing on the merits.
Which brings up an additional problem with the 10(j) injunction. The case was filed just a few weeks before a hearing was scheduled. In that hearing an actual factfinder is supposed to determine, based on actual evidence and witness testimony, whether any of these allegations in fact occurred. The timing isn’t coincidental. The Regions often threaten 10(j) injunctions to force an employer to settle. If the employer doesn’t buckle, the Region files for the injunction to apply even further pressure to settle.
You don’t pull a stunt like this when you think your case is strong. You do it when you want to avoid having to show your cards at all. And it is stunts like this that gets Congress rolling their eyes when the Board asks for more money .
There is a decent chance the Buffalo Region will win its 10(j) injunction case. That’s not because their case is strong. It’s because their burden is low. The key question is what kind of remedy will be imposed. Hopefully the federal judge in this case sees through the abuse of process and forces the Region to prove these allegations in a hearing that will be happening at the same time the judge is being asked to rule in this case. After all, that’s the way the process is supposed to work.
