Employment Law Report
Acting NLRB General Counsel Issues New Guidelines for Seeking Section 10(j) Interim Relief in Connection with Discharges Occurring during Union Organizing Campaigns
On September 30, 2010, the NLRB Acting General Counsel announced an initiative to more quickly respond to charges filed when employees are discharged during a union organizing campaign. Henceforth, in all cases found to have merit by the NLRB regional directors, the General Counsel’s office in Washington, D.C. will review the case to determine if seeking a federal injunction compelling reinstatement of the employee would be appropriate pending litigation of the underlying unfair labor practice case. The injunction would be sought under Section 10(j) of the National Labor Relations Act once authorized by the Board.
According to the NLRB memorandum just issued, new time targets are being implemented to speed up the process within the agency. They are, in part:
–Potential Section 10(j) organizing campaign discharge cases are to be identified as early as possible and inputed into the agency’s computer system with notes stating “discharge organizing campaign” so as to permit reporting on the number and handling of these cases.
–Where possible, the lead affidavit is to be taken by the Board Agent investigating the case within 7 calendar days from filing of charge in all such cases.
–The Regional Office should obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
–If charging party presents a prima facie case on the merits and it appears there is a need for injunctive relief, the Regional Office is to 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.
–Ordinarily, the regional director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge and if found meritorious, the decision with respect to the need for Section 10(j) relief should be made at the same time.
–The regional offices should endeavor to quickly issue complaints in these cases and to set prompt administrative hearings.
–Regional offices are required to submit to the Injunction Litigation Branch (ILB) at the NLRB’s Washington, D.C. office all such cases at which time the Acting General Counsel will personally decide whether to seek Section 10(j) authority from the Board.
–Neither the alleged discriminatees’ lack of desire for interim reinstatement nor a union’s abandonment of its organizing campaign will be grounds to decline to seek Section 10(j) relief.