Friday, October 08, 2010

EFCA: Being Implemented Now -- Piece By Piece

And you thought you'd have to wait to know whether the Employee Free Choice Act would become law . . .

You don't. Part of it already has become law, no legislation necessary.

The Acting General Counsel of the National Labor Relations Board (NLRB) took it upon himself to issue new rules, some of which look remarkably like provisions in the Employee Free Choice Act (EFCA) which has been shot down legislatively more than once.

EFCA, for example, would add language to the National Labor Relations Act requiring the prioritization of unfair labor practice charges occurring during an organizing campaign, including unlawful discharges. The same is true with the new NLRB rules that streamlines the handling of what are called "10(j) cases" that involve firings during union organizing campaigns. Section 10(j) allows the NLRB to seek an injunction from a federal court in certain situations, including discharge cases in which the injunction requires the employer to reinstate the employee pending the outcome of the NLRB’s administrative process. While it has been on the books a long time, it has been rarely used. Under the new process, expect many (if not most) discharges during an organizing campaign to be reviewed by the NLRB to decide whether or not to seek an injunction.

Practical impact: While firing decisions during organizing campaigns are always risky, terminations will be even more difficult now since the NLRB will seek injunctions requiring immediate reinstatement when employer decisions are questionable (in the NLRB's opinion.)

The net effect in cases where injunctions are sought and granted will be this -- the union will take credit for "getting the employee's job back" and the employer will lose most of those campaigns, thus making the decision to discharge an employee not just a matter of right and wrong, but one that could (and perhaps will) affect the outcome of the election.


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