Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—NLRB Acting GC Memorandum Aims at Early Identification and Investigation of Section 10(j) Cases, (Sep 22, 2025)

By Rosalie DiFlora and Michelle Devlin of Littler Mendelson

On September 5, 2025, NLRB Acting General Counsel (GC) William B. Cowen released Memorandum GC 25-11, which encourages early identification and expedited investigation of potential Section 10(j) cases. The memorandum also instructs Regions to apply a 2024 Supreme Court decision to determine whether interim injunctive relief is appropriate.

Section 10(j) of the National Labor Relations Act authorizes the NLRB to petition federal district courts for "appropriate temporary relief or restraining order" when it believes that interim relief is necessary to protect employees' rights and the Board's remedial authority during the pendency of unfair labor practice (ULP) administrative proceedings.

Cowen's memorandum previews that, for as long as he serves as general counsel, he will utilize 10(j) injunction proceedings in a different manner than did his predecessor, former General Counsel Jennifer Abruzzo.

Directive to Regions to Promptly Investigate, Seek and Potentially Resolve 10(j) Injunctive Relief

Cowen's memorandum instructs the Regions to promptly investigate, collect evidence and submit their position on 10(j) to the Injunction Litigation Branch (ILB). He emphasizes that Regions should not delay in submitting recommendations to the ILB if the evidence supports seeking interim relief. He commits that the ILB will respond promptly to Regions' seeking 10(j) relief. Further, Regions are encouraged to settle the 10(j) portion of the case (if the charged party is interested), while the underlying administrative case proceeds. Cowen instructs the Regions on the types of unfair labor practice (ULP) cases where 10(j) injunctions should be considered, "such as discharges during an organizing campaign, some post-certification bargaining violations (particularly those in the context of first contract negotiations), withdrawals of recognition from incumbent unions, successor employers' refusals to bargain and/or hire, and cases involving unlawful picketing activities or bad faith bargaining by unions." He cites to the list of categories of Section 10(j) cases on the NLRB website.

Standard for Evaluating the Appropriateness of 10(j) Injunctions

Cowen directs all Regions to apply the four-factor standard the Supreme Court set forth in Starbucks Corp v. McKinney, 602 U.S. 339, 346 (2024) to determine whether interim injunctive relief is appropriate. The standard requires a clear showing of: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of an injunction; (3) the balance of equities favoring injunctive relief; and (4) injunctive relief being in the public interest. In McKinney, the Supreme Court rejected the Sixth Circuit's more lenient "reasonable cause/just and proper" test, which had required only a showing that there was reasonable cause to believe a ULP had occurred, and that injunctive relief was just and proper. Cowen explains that McKinney, "raises the bar for the NLRB in seeking interim relief," in that the Board must now present more robust evidence to the district court to support the bid for a 10(j) injunction.

A Return to a More Traditional Approach to Section 10(j) Injunctions

Under the prior administration, former General Counsel Abruzzo took a self-described "aggressive" approach to 10(j) injunctions, and instructed the Regions to seek injunctions in a wide swath of cases.[1] Backlog and delay in processing resulted in the agency's bringing 10(j) actions against employers often months or years after the alleged unlawful acts - sometimes even after the underlying ULP hearing was over - which caused significant expense to employers (and the NLRB itself) and led courts to be skeptical of the need for injunctive relief. Cowen indicates he will take a more traditional posture on the types of cases where 10(j) relief will be sought and will have little tolerance for delay in pursuing 10(j) injunctions.

What Does This Mean for Employers?

Cowen's memorandum reinforces the NLRB's commitment to using Section 10(j) injunctions to protect employees' rights under the NLRA. However, employers can expect a change in the way that the agency uses 10(j) injunctions, that is, for its intended statutory purpose to secure interim relief for alleged violations of the Act. If 10(j) actions are filed under Cowen, employers should expect them to be filed more promptly and in accordance with the McKinney decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Rosalie DiFlora and

Michelle Devlin

Littler Mendelson

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Tel.: +1 213 443-4245

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Footnotes

1 Cowen rescinded former General Counsel Jennifer A. Abruzzo's three guidance memos on Section 10(j) injunctions: Memorandum GC 22-02 about when Regions should pursue 10(j) injunctions; Memorandum GC 23-01 about settling the 10(j) aspect of cases allegedly warranting interim relief; and Memorandum GC 24-05 regarding the Supreme Court's decision on the 10(j) injunction standard.

Attorneys: Rosalie DiFlora and Michelle Devlin (Littler Mendelson).

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