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NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC

  • October 21, 2010

The Acting General Counsel for the National Labor Relations Board has issued guidelines to the agency’s regional officials, recommending that they prepare to seek promptly federal court injunctions where the evidence obtained during an expedited Board investigation appears to support a discriminatory termination charge.  According to Acting General Counsel Lafe Solomon, this would compel employers charged with discriminatory termination of union advocates and supporters during union organizing to offer the fired employees reinstatement pending litigation of the underlining unfair labor practice charge in Board administrative hearings.

Lafe Solomon’s memorandum (GC 10-07), issued September 30, 2010, to the agency’s Regional Directors, Officers-in-Charge and Resident Officers includes new investigatory and administrative procedures when employees allege an unlawful discharge or other unfair labor practices during union campaigns to organize employers’ workforces. 

Background

In 1947, the National Labor Relations Act was amended to provide the NLRB with authority to seek preliminary injunctions during the pendency of unfair labor practice litigation.  Since that time, every General Counsel of the NLRB, to varying degrees, has sought injunctive relief in aid of prosecuting unfair labor practice complaints pursuant to Section 10(j) of the Act.

Timelines

To streamline and expedite the process, the Acting General Counsel identified timelines for processing and seeking 10(j) relief.  These include: 

  • Following receipt of an unfair labor practice (ULP) charge alleging an employee was discharged for union activity during a union organizing drive, the Regional Office will earmark the charge for expedited processing and handling.
  • Within 7 days, the Regional Office will obtain an affidavit from the discharged employee (who generally will be the Charging Party).
  • Within 14 days from the filing of the ULP charge, the Regional Office will obtain any additional supporting evidence from the Charging Party.
  • If the evidence points to a prima facie case on the merits, the Regional Office will request a position statement from the Respondent employer and provide it with the specific allegations that should be addressed.  The employer will have 7 days to submit a position statement.
  • The Regional Director must determine within 49 calendar days from the filing of the ULP charge whether to seek 10(j) injunctive relief for the Charging Party.  The Regional Director is encouraged to move swiftly to issue a Board complaint alleging there is reasonable cause to believe the employer has violated the NLRA by firing the Charging Party, which is a predicate for further 10(j) action. 
  • The Regional Office will then submit the case to the Injunction Litigation Branch of the General Counsel’s Office in Washington, D.C., for review and recommendations. The Acting General Counsel personally will review these cases and decide whether 10(j) injunctive relief should be sought.  The Injunction Litigation Branch will then submit the 10(j) request to the (presently) 4-member NLRB for final authorization.  Once it is given, the Regional Office will file the request for a preliminary injunction with the appropriate federal district court.

 

“Nip-in-the-bud” Cases

The Acting General Counsel has characterized a pro-union employee’s discharge during an organizing drive as “nip[ping] in the bud” all employees’ efforts to engage in protected concerted activity (under Section 7 of the Act). Therefore, he reasons, it is essential to effect the employee’s reinstatement as soon as possible to restore the status quo and help vindicate all employees’ rights.  To help focus public attention on these cases, the Acting General Counsel stated the agency will post the case names and status for 10(j) injunction cases authorized by the Board on the NLRB website (www.nlrb.gov).  The first cases already have been posted. 

* * *

There is little doubt that labor unions, with the apparent backing of the NLRB’s Office of the General Counsel, will push the envelope during organizing drives in an effort to spur campaigns.  They will have greater incentive to file more charges sooner.  Employers should ensure their managers are trained to document and support the reasons for an employee’s separation from employment, to apply company practices and policies consistently, and to communicate with Human Resources and legal counsel prior to separating an employee, especially during an organizing drive.  A disciplinary or discharge decision for valid business reasons during a union organizing drive need not paralyze a company. Ironically, the Board prosecutor’s new initiative may actually promote better termination decisions, that are better documented, by employers since the decisions almost certainly will be scrutinized in short order. 

Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

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