NLRB Acting General Counsel Lafe Solomon has announced an initiative to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign. According to the announcement:

…in all cases found meritorious the General Counsel’s office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. In addition, new timelines and procedures have been created to speed up the process.

In a General Counsel Memorandum released along with his announcement, Mr. Solomon explains his motivation for this decision thus:

An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it “nips in the bud” all of the employees’ efforts to engage in the core Section 7 right to self-organization.

Under Section 10(j) of the Act, the Board is authorized to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation. The guidelines promulgated under this new initiative direct the Regional Offices to identify potential Section 10(j) organizing campaign discharge cases “as soon as possible after the filing of the charge” and establish coding instructions to facilitate the Board’s tracking of such cases. Pursuant to the “optimal timeline” set forth in the guidelines:

  • Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases.
  • Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
  • If 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 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge.
  • 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 complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.

NLRB Chairman Wilma Liebman said in a statement that the Board has also revisited its procedures for requests to pursue injunctive relief: “The Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.

This is the latest in a series of developments expanding or seeking to expand the Board’s use of injunctive relief. Last month, we highlighted a preliminary injunction issued by a federal court in California requiring a bottler to recognize and bargain with the Teamsters pending resolution of unfair labor practice charges. In that blog post we also noted

Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases. Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

With Mr. Solomon’s announcement, it appears that the current Board will indeed be more aggressive in this regard in a wider variety of “nip-in-bud” cases.