On September 30, 2010, the National Labor Relations Board’s (NLRB) Acting General Counsel, Lafe E. Solomon, announced an initiative to encourage and expedite the processing of Section 10(j) requests in cases involving alleged unlawful discharges during union organizing campaigns. (The text of this initiative may be accessed here.)
This initiative institutes new timelines and procedures to accelerate the review of unfair labor practice charges alleging an unlawful discharge occurring during a union organizing campaign (so-called “nip in the bud” cases) in order to expedite a decision by the NLRB as to whether to seek a federal court injunction pursuant to Section 10(j) of the National Labor Relations Act (the Act). The initiative requires the NLRB’s regional offices to investigate charges involving discharges during union organizing campaigns and to submit a report within one week of their findings to the Acting General Counsel. The Acting General Counsel has committed to personally review all such reports within a significantly reduced time period. If the Acting General Counsel determines that a Section10(j) injunction is appropriate, he will seek authorization, as currently required, from the NLRB. Chairman Wilma Liebman stated that she concurs with the need to expedite requests for Section 10(j) authorization.
Beginning on October 5, 2010, the NLRB will post on its website the names and status of all cases in which the NLRB has authorized the Acting General Counsel to seek a Section 10(j) injunction.
Since Taft-Hartley amendments of 1947, the NLRB has had the authority under Section 10(j) of the Act to seek an injunction in a federal district court for interim relief while an unfair labor practice case is being processed by the NLRB. The NLRB seeks a Section 10(j) injunction when it determines that the purposes of the Act would be frustrated if expedited and interim relief of alleged unfair labor practices is not obtained. A Section 10(j) injunction can be obtained within a few months, if not weeks, of the filing of an unfair labor practice charge, as opposed to the many months (and often years) it takes for the NLRB to make an administrative determination.
Before the General Counsel can seek Section 10(j) relief he must receive authorization from the NLRB, although Section 10(j) authority can be, and on occasion has been, delegated from the NLRB to the General Counsel. Once authorization is received, the General Counsel files a complaint in the federal district court where the alleged unfair labor practice occurred. Although the various circuit courts of appeal have differing standards for granting Section 10(j) relief, none of the standards require the NLRB to establish a violation has occurred, but only that it has sufficient basis to so argue.
What Should Employers Expect?
Although the announced initiative does not change the law as to what the NLRB must establish in order to convince a district court that a Section 10(j) injunction is warranted, the NLRB’s more aggressive approach does create potentially serious ramifications for employers alleged to have illegally terminated employees during an organizing drive. It is not necessary to establish that the terminations are in fact unlawful in order to obtain an injunction that would result in a court order requiring the employer to reinstate the employees. Rather, the NLRB need only establish a reasonable likelihood that the terminations could be unlawful. As a result, employers could be compelled to reinstate terminated employees whose terminations are ultimately found to be justified perhaps years later. And because these cases will arise during union organizing campaigns, unions will be able to capitalize on the injunction as part of their organizing propaganda.