Lacking the support of a filibuster-proof Senate, the National Labor Relations Board (“NLRB”) began its push to unilaterally implement portions of the Obama Administration’s labor relations agenda.
On September 30, 2010, the NLRB’s Acting General Counsel Lafe E. Solomon announced the NLRB’s Section 10(j) Program, a program intended to streamline the handling of Section 10(j) injunctions during union organizing campaigns. Section 10(j) authorizes the NLRB to seek a federal court injunction granting temporary relief (such as reinstatement of a union supporter who was unlawfully fired for his pro-union conduct) while unfair labor practice (“ULP”) charges are being considered.
In Memorandum GC 10-07 to the NLRB’s eighteen regional offices, Solomon said in traditional Midwestern vernacular that an unremedied firing “nips in the bud” employee efforts to organize themselves and intimidates other employees from exercising their statutory rights. These firings violate Section 8(a)(3), but often take years to decide.
Solomon announced an optimal timeline for these “nip-in-the-bud cases.” For anyone familiar with ULP cases, the Solomon’s target dates are incredibly ambitious–necessitating that the employer immediately contact a knowledgable labor lawyer upon receipt of a ULP charge. In addition, Solomon’s procedures require NLRB regional directors to consider seeking injunctive relief in “all meritorious 8(a)(3) nip-in-the-bud cases,” including those now pending before the agency.
Bottom Line
The new timeline and procedures may have a chilling effect on both union and non-union employers. Specifically, a union employer facing organization of a new group of employees, or a non-union employer observing the seeds of a new campaign, may be fearful to address legitimate disciplinary concerns because the employee happens to be a union supporter. This could embolden union supporters to engage in otherwise terminable conduct with the belief that they are immune from discipline.