Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Many have speculated that the National Labor Relations Board may seek to implement through the Board’s processes certain aspects of the Employee Free Choice Act in lieu of legislative action. To wit, in a move that partially implements EFCA’s “enhanced enforcement” provisions, the NLRB Office of the General Counsel (GC) has put into place a program designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns.
Section 10(j) of the National Labor Relations Act (NLRA) allows the Board to seek a federal court injunction to prevent unions and employers from committing unfair labor practices and to maintain the status quo while a matter is pending before the Board. Unions have long complained that this power was underutilized by the Board and that employer termination of union supporters was a primary impediment to unions’ ability to successfully organize. To address this complaint, as drafted, EFCA called for enhanced penalties for violations during an organizing campaign such as the termination of an employee supporting the union’s organizing effort. Now, even without the passage of EFCA, under the new program, in all cases where an employee termination during an organizing campaign is the subject of an unfair labor practice (ULP) charge and the charge is found to have merit, the GC’s office will consider obtaining a court order compelling reinstatement of the employee while the underlying ULP claim is still pending. According to the GC’s letter to NLRB regional directors, the NLRB’s Section 10(j) program is to be considered a “top priority.”
The program, outlined in Acting GC Lafe Solomon’s Memorandum to all regional directors, (pdf) “covers all stages of case processing—from identification of cases as potential Section 10(j) cases by Regional Offices through Board authorization and litigation of Section 10(j) cases to trial and decision" of cases on their merits. The program establishes an optimal timeline for processing “nip-in-the-bud” discharge cases, and sets forth a list of best practice procedures to facilitate the processing of such matters. For example, all potential Section 10(j) organizing campaign discharge cases are to be identified as soon as possible, and, where practicable, a lead affidavit is to be taken within seven calendar days from the date the charge is filed. If the regional director determines that the employee’s complaint has merit, he or she must notify the employer in writing of the potential request for injunctive relief. The employer would then have a week to submit its position on the matter. After an expedited set of procedural steps, the Board will ultimately need to authorize the request for injunctive relief. The regional director must then file the request in federal court within two days of authorization.
According to a press release, (pdf) Chairman Wilma Liebman said the Board “has revisited its procedures for reviewing such requests in an effort to expedite the process.” Said Liebman,“[t]he Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.”
Among the GC’s list of best practices for regional directors to pursue, the Memorandum advises that “once before an administrative law judge, the Region should oppose any request for postponement or extensions of time for filing documents. If a postponement is granted, the Region should contact [the Injunction Litigation Branch] to evaluate whether a special appeal contesting the postponement should be filed with the Board.” In addition, regions are encouraged to assign more than one agent, if needed, to investigate and process such injunctive relief cases.
This enhanced enforcement may have a chilling effect on employers’ right to continue to operate during a union organizing campaign as some may be reluctant to address legitimate disciplinary issues that occur simply because the offending employee happens to support unionization. It could also encourage union supporters to “cross-the-line” in their organizing efforts with the belief that they are immune from discipline for actions that would otherwise be terminable.
Photo credit: dra_schwartz