Last week, the Acting General Counsel for the National Labor Relations Board issued new guidelines to all field offices regarding injunctive relief under section 10(j) of the National Labor Relations Act. Normally, General Counsel memos do not attract much attention. This one, however, may deserve closer scrutiny because it looks in some respects like the stagnant Employee Free Choice Act (EFCA) that was introduced in the House and Senate in early 2009.
The General Counsel fills an important role as the NLRB's chief enforcement officer. The Acting General Counsel, Lafe Solomon, was appointed by President Obama this past summer. Mr. Solomon's September 30 memorandum to the NLRB's regional offices addresses the importance of injunctive relief for unlawful discharges during organizing campaigns. According to the memorandum, such discharges "nip in the bud" all employees' efforts to engage in core protected self-organization activities and are among the most serious violations of the NLRA. In order to remedy "nip in the bud" violations, the NLRB historically has had the option to seek injunctive relief under Section 10(j) of the Act. In Mr. Solomon's view, 10(j) relief has proven to be a quick and effective way to remedy unlawful discharges by providing interim immediate reinstatement to an employee who is discharged during an organizing campaign. In order to "continue and enhance" the 10(j) program for "nip in the bud" cases, the Acting General Counsel's memorandum lays out an expedited casehandling timeline that field office personnel are to follow for charges alleging unlawful discharge during an organizing campaign.
So what is the connection between the General Counsel memorandum and EFCA? Although the card check provisions of EFCA draw the most attention, EFCA also includes severe penalties for employers who violate the law during organizing campaigns. In particular, EFCA provides for triple damages for employees who are unlawfully discharged during an organizing campaign. Further, EFCA calls for mandatory injunctive relief in cases where the NLRB has reasonable cause to believe an employer violates the law during an organizing campaign.
There is no doubt that EFCA is dead for now. But practitioners and commentators have expressed for some time the concern that those sympathetic to organized labor would seek to enact EFCA or parts of it through the back door, e.g., by NLRB rulemaking or through decisions issued by an NLRB that is loaded with members appointed by President Obama. The recently issued General Counsel memorandum does not by its terms call for mandatory injunctions during an organizing campaign. However, its expedited casehandling timeline and enhanced commitment to lightning-fast case resolution may as a practical matter result in more 10(j) cases, bringing us a step closer to EFCA and the goals of its supporters.