NLRB's "Nip-in-the-Bud" Memo Accelerates Timeline for Processing Unfair Labor Practice Charges

On September 30, 2010, NLRB General Counsel Lafe Solomon issued a memorandum outlining new procedures and timelines geared at encouraging the filing and expediting of petitions for injunctions under Section 10(j) of the National Labor Relations Act (NLRA). According to the memo, the NLRB intends to focus on firings during organizing campaigns that violate Section 8(a)(3) of the NLRA.

Aggressive Use of Section 10(j)

The memo instructs regional offices to aggressively pursue 10(j) injunctions. Under Section 10(j), the NLRB may seek a temporary injunction reinstating an employee while that employee's unfair labor practice charge is being processed. In the memorandum, Solomon expressed concern over employers terminating union supporters, union supporters filing Board charges and having significant time pass before resolution of the charge. The Board believes that such passage of time intimidates employees who otherwise support union organizing efforts. To remedy this perceived problem, the memo outlines a new accelerated timeline for processing unfair labor practice charges and using 10(j) to reinstate the employee while his or her charge is processed.

New Accelerated Timeline

The memo outlined the following "optimal timeline" for processing "nip-in-the-bud" cases:

• Within seven calendar days of the charge, the Board should take the "lead" affidavit.
• Within 14 days of the charge, the Board should obtain the charging party's evidence.
• If the charging party's evidence shows "a prima facie case on the merits," the regional office should notify the employer that the Board is considering a request for 10(j) relief, and that the employer's position statement should be submitted within seven days.
• The memo also provides that each regional office "will normally make a determination on the merits of the case within 49 calendar days from filing of the charge."
• Lastly, the memo states that the Regional Director "must submit" to the Injunction Litigation Branch in Washington, D.C., "all meritorious 8(a)(3) discharge nip-in-the-bud-cases, including those currently pending before an administrative law judge, that do not settle."

In light of this new memo, employers should consult with counsel prior to terminating any union supporters during an organizing campaign.