Employers should brace themselves for an increase in claims for interim injunctive relief related to alleged unlawful firings during organizing campaigns. A memorandum issued recently by the Acting General Counsel of the National Labor Relations Board emphasizes the goal of “a speedy remedy” under Section 10(j) of the National Labor Relations Act.
The memorandum, issued on September 30, 2010, by Acting General Counsel Lafe E. Solomon, outlines the Board’s renewed focus on interim injunctive relief under the NLRA in such cases involving alleged unlawful firings during organizing campaigns. It states that the goal "is to give all unlawful discharges in organizing cases priority action and a speedy remedy." The memorandum sets forth an optimal timeline and procedures for processing "Nip-in-the-bud Discharge Cases."
In essence, the Board affirmed its commitment to identifying unlawful firing charges as potential 10(j) cases and obtaining injunctive relief, if appropriate, as soon as practically possible. This agency-wide initiative highlights the NLRB’s authority under Section 10(j) to seek a federal district court injunction, granting temporary relief, while the Board processes an unfair labor practice charge. The General Counsel must seek Board authorization to seek an injunction in federal court.
The Board has used Section 10(j) injunctions in the past to require employers to offer interim reinstatement to discharged employees pending Board resolution of a case. Acting General Counsel Solomon stressed that the aim of the renewed focus on Section 10(j) was to ensure that "the passage of time does not undercut our ability to provide effective remedies in these cases."
The timeline and procedures set forth in the memorandum are to be considered best practices by the Regional Offices. Some of the significant directives by the Board follow:
- Potential Section 10(j) organizing campaign discharge cases should be identified by the Region as soon as possible after the filing of the charge.
- Where possible, the lead affidavit should be taken within seven calendar days from the filing of the charge.
- Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
- If the charging party’s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue be submitted to the Regional Office within seven calendar days after the written notification.
- A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue a complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.
- Regions must submit to the Injunction Litigation Branch all meritorious 8(a)(3) Nip-in-the-bud Discharge Cases that do not settle, including those currently pending in the Regions and before an administrative law judge. Acting General Counsel Solomon will personally review and decide whether Section 10(j) authorization should be sought in all such cases.
Click here to view cases in which the board has authorized a Section 10(j) injunction.
Employers should prepare to defend against a Section 10(j) injunction in cases where there has been an unlawful discharge case filed during an organizing campaign.