Bookmark and Share
 

Legal Updates

NLRB Will Seek Quick Relief In Termination Cases

The National Labor Relations Board plans to intensify its efforts to secure preliminary court orders reinstating employees in “organizing discharge” cases, in which employees are unlawfully fired for participating in union organizing campaigns.

This announcement was conveyed through the public release of an internal memorandum by Acting General Counsel Lafe E. Solomon at the National Labor Relations Board (“NLRB” or “Board”), and is another example of the agency’s recent pro-union slant.

Legal Framework

Under Section 10(j) of the National Labor Relations Act (“NLRA”), whenever a party files an unfair labor practice (“ULP”) charge, the Board may decide, after investigating the charge, to initiate a proceeding in federal court seeking immediate injunctive relief against the party alleged to have committed the ULP.  If the court concludes that the charge is well-founded and that the party filing it will suffer irreparable harm without immediate relief, the court may issue a preliminary injunction granting such relief until the charge has been fully litigated.  In “organizing discharge” cases, reinstatement is typically the core relief sought.

The NLRA has always provided that employees unlawfully discharged for engaging in union activity are entitled to reinstatement with back pay.  In his memorandum, however, Acting GC Solomon noted that the Board’s usual processes – which can take several years from filing to final adjudication – are often inadequate, as a practical matter, to remedy such violations, because an employer’s discharge of a union activist often stops organizing activity in its tracks by deterring other employees from supporting unionization.  Additionally, by the time of an eventual reinstatement order, the employee is often unavailable for, or uninterested in, reinstatement.

Board’s Increased Focus On “Organizing Discharge” Cases

This concern is certainly not new, and Acting GC Solomon notes in his memorandum that the Board has developed “a variety of very effective strategies” for addressing “organizing discharge” cases, including investigating such charges as promptly as possible and, when they are determined to be meritorious, seeking injunctive relief or pressing employers to settle such charges and quickly reinstate employees.

Now, however, Acting GC Solomon states that his goal is “to give all unlawful discharges in organizing cases priority action and a speedy remedy.”  His memorandum indicates that, in furtherance of this effort, the NLRB will intensify its efforts to obtain preliminary injunctive relief in appropriate “organizing discharge” cases “to assure that the passage of time does not undercut our ability to provide effective remedies in these cases.”  These efforts are to include:

  • Attempting to secure all of the parties’ evidence in “organizing discharge” cases within 28 days of the filing of such charges;
  • Deciding whether to seek Section 10(j) relief within seven weeks after the filing of such charges;
  • Having Acting GC Solomon “personally review” all such cases; and
  • Requesting injunctive relief even where a union has abandoned its organizing efforts or a discharged employee has disclaimed any interest in reinstatement.

Notably, after serving in this temporary role since June 21, 2010, Acting GC Solomon was nominated on January 5, 2011, to be the Board’s General Counsel.  While the Senate has not yet taken action on this nomination, it seems almost certain that any successful nominee, whether Mr. Solomon or otherwise, will continue the Board’s recent pro-labor tack – including, presumably, the procedures for potential Section 10(j) cases outlined in Acting GC Solomon’s memorandum.

Recommendations for Employers

In light of the Board’s heightened emphasis on seeking injunctive relief in “organizing discharge” cases, an employer should act with renewed caution before terminating an employee who has been involved in recent union organizing activities.  While an employee’s participation in such activities certainly does not immunize him or her from being disciplined for appropriate reasons, Acting GC Solomon’s memorandum makes clear that if the Board deems an employee’s termination suspicious, it will not hesitate to seek Section 10(j) relief.

Such cases can result in significant expense and negative publicity for businesses, so employers should consider such termination decisions carefully, and take every appropriate step to ensure that employees are not unlawfully terminated (or otherwise retaliated against) for engaging in protected union activities.

For instance, an employer that is aware of recent or ongoing organizing activity among its workforce might arrange for all proposed disciplinary actions to be reviewed by a high-level employee (such as an HR executive) with no direct involvement in the events at issue, in order to ensure that such decisions are not perceived as being influenced by anti-union animus.  In addition, whenever an employee who is known to have been involved in organizing activities is slated for discipline, an employer would be wise to consult labor counsel before implementing the discipline.

Additionally, Acting GC Solomon’s memorandum underscores the need for employers to take active steps aimed at averting possible union organizing campaigns in their workplaces.  Such measures include:

  • Maintaining workplace policies that make organizing activity more difficult, including appropriate no-solicitation, no-distribution, no-access and e-mail policies;
  • Training managers in how to respond to organizing activity in a lawful and effective manner;
  • Training managers in how to manage effectively, since discontentment with such issues often motivates employees to seek to organize;
  • Ensuring that an employer has effective programs for rewarding positive job performance and addressing employee concerns, as discontentment with these issues also can motivate employees to seek to organize; and
  • When appropriate, communicating to employees an employer’s reasons for believing that it is in employees’ best interests to remain union-free.

***

If you have any questions about these issues or would like our assistance with any labor-law matters, please do not hesitate to contact us.