Hunton Employment & Labor Perspectives

We’ve been talking about the “new” NLRB and its pro-union slant all year, so its latest procedural revisions should not come as a surprise to you. On September 30, 2010,  NLRB Acting General Counsel, Lafe Solomon, announced an initiative to “strengthen and streamline the Agency’s response to charges filed when employees are fired in the midst of a union organizing campaign.”

In short, the General Counsel’s office is now considering seeking a federal injunction that will compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case in all cases found to be meritorious.  And, it will do it as quickly as possible. Regional Directors are required immediately to investigate allegations of unlawful firings in organizing cases and, if merit is found, to submit them to the General Counsel’s office with a short memo, ideally within a week of their findings.  Solomon says he will personally review each case upon recommendation, and the injunctions will be sought under Section 10(j) of the National Labor Relations Act once authorized by the Board.

On October 5, the NLRB began posting case names and status updates for all 10(j) injunction cases authorized by the Board on its website.

Employers should consider seeking counsel when considering employee terminations while a union organizing campaign is taking place.  Not only should the grounds for termination be reviewed carefully as always, but the employer should be prepared for the possibility of enhanced attention and expedited action by the NLRB.