Having argued for the need to address through federal court injunctions alleged employer misconduct that can “nip union organizing conduct in the bud” (see NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC) — in particular, firing employee organizers and activists — the General Counsel now wants to accord the same treatment to alleged discrimination that takes place before the union arrives on the scene and after it has folded its tent and gone away in defeat. He reasons that discriminatory actions taking place outside the period of union organizing can inhibit union organizing also — in the future. He wants “pre-nip” and “post-nip” injunctions for this conduct, too.
It is all catnip, however, for misbehaving employees who are about to be fired for cause. They need only draw around them the mantle of claimed union activity and they may act with impunity. They will not resist the General Counsel’s tempting offer to tie their misconduct to protected union activity, however tenuous.
Unionization? If the union has never been at the employer or it has been there and gone, where is the connection deserving immediate protection? If these discharges require judicial intervention before the Board has heard and decided the claims of misconduct, it is difficult to envisage what discharge (by a union-free employer, at least) wouldn’t qualify for injunctive relief.
The General Counsel, as a practical matter, seems to be trying to have all these cases determined on an expedited basis in federal court, where, if successful, he can get an immediate order punishable by contempt. Once the district court accords relief and reinstates the employee, the Board will be in no hurry to complete its proceedings. Many of these cases, we suspect, will become anti-climactic. As for the reinstated employee, he enjoys the insulation offered by the employer’s fear of a contempt or retaliation charge. An employer will be most reluctant to terminate this employee again if he faces additional litigation or sanctions.
Adding insult to injury, the General Counsel will probably ask the court for a back pay award, including the newly suggested minimums, and even compound interest, while the employee is “provisionally” reinstated.
With all this new litigation who needs EFCA?