The simple answer is yes.
Section 7123(d) of the Federal Service Labor Management Relations Statute (Statute) provides for the General Counsel of the Federal Labor Relations Authority (FLRA), with FLRA Authority Members approval, to seek appropriate temporary relief from an appropriate United States District Court when specific conditions have been met.
The Statute sets forth the criteria for a district court of the United States to grant appropriate temporary relief (including the right to grant temporary restraining orders) in unfair labor practice cases. A court must conclude that granting such relief is “just and proper” before temporary relief can be granted. In addition, a court cannot grant any temporary relief “if it would interfere with the ability of the agency to carry out its essential functions or if the Authority fails to establish probable cause that an unfair labor practice is being committed”.
The parties filing unfair labor practice charges must understand that a decision to seek injunctive relief is appropriate only under extraordinary circumstances and, in determining whether injunctive relief should be sought, one factor is seldom determinative. Instead, all the facts and circumstances present in a particular case must be examined before a decision is made to seek injunctive relief. The Office of the General Counsel will consider some or all of the following factors, in determining whether a particular case meets the criteria set forth in section 7123(d) of the Statute for injunctive relief:
1. Seriousness of the violation
Not all violations of the Statute are as serious as others. For example, a failure to accord recognition to a union after a valid representation election is more serious than a failure to afford the union an opportunity to be represented at a routine formal discussion. Moreover, there are degrees of harm within the same category of unfair labor practices. For example, a decision to move the office of one employee to a different floor at the same facility is quite different from a decision to close an entire facility and transfer 100 employees to another state.
Is the law clear regarding the violation alleged? Courts consider the likelihood of success on the merits in deciding whether to grant injunctive relief. Accordingly, the Regional Directors should consider whether a case involves a violation supported by well-established precedent or if it poses a novel legal theory.
3. Disruption to Essential Functions of the Agency
Would the granting of an injunction interfere with the ability of an agency to fulfill an essential function? The Statute prohibits a court from granting injunctive relief if an injunction would prevent an agency from carrying out its essential functions. The Regional Directors, therefore, should consider whether temporary relief would interfere with an agency’s ability to carry out essential functions.
4. Timeliness of the Dispute
Is the request timely in relationship to the underlying events?
Courts often are concerned with the current status of a case before the Authority and may be reluctant to grant injunctive relief if the facts establish that the matter has not been processed expeditiously. Therefore, consideration should be given to the timeliness of a determination to recommend temporary relief in relationship to when the violation took place as well as the time it has taken to investigate and process the case.
5. The Remedy
Will the failure to maintain the status quo frustrate the remedial purposes of the Statute? Absent appropriate temporary relief, certain violations cannot be remedied effectively after they have been implemented.
For example, implementation of a major reorganization that results in the relocation of employees, forced resignations and retirements, or other types of dislocations cannot ordinarily be remedied effectively after implementation. Unless appropriate temporary relief is granted, it will be difficult, if not impossible, to restore the status quo through the unfair labor practice process because of the passage of time. In other instances, make whole and status quo remedies are available. The Regional Directors should consider whether the failure to maintain the status quo frustrates the remedial purposes of the Statute in deciding whether to recommend that appropriate temporary relief be sought.
6. Harm to Statutory Right to Organize or Be Represented
Does the violation undermine the fundamental right to organize and/or engage in collective bargaining?
Certain violations of the Statute undermine the bargaining relationship. For example, a refusal to recognize and deal with the employees’ exclusive representative after certification would deny employees the benefits of unionization until the matter is ultimately resolved. Similarly, targeting union officials for a reduction-in-force would render a union unable to carry out its statutory duties as the exclusive representative, undermine the status of the exclusive representative and chill bargaining unit employees in exercising their protected statutory rights.
The Regional Directors should consider whether the violation undermines the fundamental right to organize and/or engage in collective bargaining when deciding whether to recommend that appropriate temporary relief be sought.
FLRA Regions should look at all unfair labor practice charges to determine if they are appropriate for injunctive relief. The party filing the charge, in most cases a union, also has the right to request the Regional Office decide on whether an injunction is appropriate. All candidates for injunctive relief should have expedited case processing.
The party filing the unfair labor practice charge must be prepared to submit its evidence expeditiously to speed up the investigation process. If a decision is made that an unfair labor practice violation occurred and injunctive relief if appropriate, then the General Counsel must submit a request to the Members of the FLRA to request authority to go to U.S. District Court to seek an injunction. If the request is approved, then the Regional Office handling the unfair labor practice charge will file in federal court for a temporary restraining order (TRO). In many cases, once the TRO is granted settlement discussions lead to a settlement of the unfair labor practice charge and the TRO is dismissed.
The Case of the National Guard in Puerto Rico
As General Counsel of the FLRA, I made decisions on several injunctive relief cases. The most memorable one dealt with the Puerto Rico National Guard.
The National Guard in Puerto Rico was represented by a federal sector union, as are many National Guard units. National Guard employees have both a military status and a civilian status. The union can only represent the employees in their civilian capacity.
The National Guard union in Puerto Rico decided to engage in informational picketing to complain about working condition issues. They believed they were picketing in their civilian capacities and not in their military capacities.
The Adjutant General of Puerto Rico did not agree. He fired 19 Guardsmen who engaged in picketing because his position was that military members could not legally picket.
The Union representing them filed an unfair labor practice charge alleging the firing violated the Statute. The Regional Office found an unfair labor practice and the FLRA authorized seeking an injunction. The Federal Court in Puerto Rico granted the request for a TRO.
I went to Puerto Rico with my Regional Director handling the case to meet with the Adjutant General to seek a settlement of the unfair labor practice complaint. To me, the firing of 19 employees was a very serious issue. The meeting was attended by myself, my Regional Director, the Adjutant General and a Spanish language interpreter. All the discussions took place through the interpreter which became very difficult and laborious. The meeting went nowhere. The language barrier became a significant barrier to a solution. It was curious that an interpreter was required since the Adjutant General had a diploma from Harvard hanging on his wall.
Once it was clear no settlement was going to be arrived at, my Regional Director happened to notice a signed photograph of Roberto Clemente on the wall of the Office and commented on the photograph. The Adjutant General then spent 20 minutes explaining in perfect English how he had the photo and his knowledge of Clemente. The case was not settled and all 19 stayed fired.