NLRB Will Seek Federal Injunctions on Certain Employee Terminations

On September 30, 2010, the National Labor Relations Board (NLRB) announced a new initiative to more quickly respond to charges filed when employees are discharged during a union organizing campaign. The new initiative requires the NLRB’s regional offices to investigate charges involving discharges during union organizing campaigns and to submit a report within 7 days of their findings to the General Counsel. All cases found to have merit by the NLRB regional directors will be immediately referred to the General Council’s office for expedited review and determination on whether to seek a federal injunction under Section 10(j) of the NLRA that would force the offending employer to offer reinstatement to the terminated employees while the unfair labor practice case proceeds through litigation. With the new initiative, the NLRB has also begun posting on its website the names and status of all cases in which the NLRB has authorized the Acting General Counsel to seek a Section 10(j) injunction. Although the announced initiative does not change the standard for what the NLRB must establish in order to convince a district court that a Section 10(j) injunction is warranted, the NLRB’s more aggressive approach does create potentially serious ramifications for any employer alleged to have illegally terminated employees during an organizing drive. It is important to point out that it is not necessary to establish that the terminations are in fact unlawful in order to obtain an injunction that would result in a court order requiring the employer to reinstate the employees. Rather, the NLRB need only establish a reasonable likelihood that the terminations could be unlawful. As a result, employers could be compelled to reinstate terminated employees whose terminations are ultimately found justifiable, perhaps years later. Because these cases arise during union organizing campaigns, unions may be able to use  the threat of injunction as part of their organizing propaganda.