NLRB Acting General Counsel Lafe Solomon announced yesterday that the Office of the General Counsel (which acts as the "prosecutor" in unfair labor practice cases) is implementing a program to streamline the handling of Section 10(j) cases that involve employee discharges during union organizing campaigns. Section 10(j) authorizes the NLRB to seek an injunction from a federal court in certain situations. In a discharge case, the injunction orders the employer to reinstate the employee pending the outcome of the NLRB’s administrative process.
The program’s goal, Mr. Solomon said, is “to give all unlawful discharges in organizing cases priority action and a speedy remedy” so that employees may resume union organizing. Under the new initiative, potential 10(j) organizing campaign discharge cases are identified as quickly as possible at the regional level. Once identified, detailed procedures are outlined (pdf) by Mr. Solomon for regional offices to investigate and prioritize resources towards an organizing campaign discharge case. Board Chairman Wilma Liebman said (pdf) that the Board has also revisited its procedures for 10(j) cases in order to expedite the litigation process.
The Acting General Counsel’s new guidelines are an interesting development for labor professionals for a number of reasons:
- First, the similarity to provisions of EFCA is unmistakable. EFCA would add language to the NLRB requiring the prioritization of unfair labor practice charges occurring during an organizing campaign, which would include unlawful discharges. As readers of this blog know, President Obama has commented directly on administrative efforts to make union organizing easier.
- Second, employment decisions during organizing campaigns are always fraught with substantial risks. Disciplinary actions like terminations will be even more difficult now. Indeed, during much of the 2000s, around 20 or fewer 10(j) cases were filed. Employers should expect those numbers to increase.
- Finally, the sweep of these rules is substantial. What if the union abandoned its organizing drive? What if the employee doesn’t want reinstatement? Neither of these things, "in themselves," matters according to the Acting General Counsel’s memorandum.
The Acting General Counsel’s action underscores the importance of seeking out labor counsel during a union organizing campaign to assist in navigating potentially turbulent waters.