Controversial Union Rights Notice Now Available From Labor Board— Employers Should Not Rush To Post

Labor and Employment Alert:
Controversial Union Rights Notice Now Available From Labor Board — Employers Should Not Rush To Post

As of November 14, 2011, most private sector employers are required, by a controversial new National Labor Relations Board rule, to post a notice advising employees of their rights under the National Labor Relations Act. In this article, labor and employment lawyer, R. Scott Brink, discusses the new notice and pending legal challenges to the new notice rule. A link to the Form of Notice, which was issued on September 14, 2011, may be found at the end of this article.

This new rule requires employers to post an 11 x 17 inch notice in a conspicuous place where other notifications of workplace rights and employer rules and policies are posted. In addition, employers who post personnel policies or workplace notices to internal or external websites are required to post the notice on those sites. The NLRB has stated that failure to properly post the notice may toll statutes of limitations on unfair labor practice charges and may itself be an unfair labor practice.

Employers should not rush to post the notice prior to November 14, as the NLRB’s authority to issue the new rule is already the subject of legal challenge. NLRB enforcement of the new rule may be delayed, pending the resolution of a lawsuit challenging the validity of the rule.

The NLRB’s authority to issue the new rule is questionable. While the Act does authorize the NLRB to enforce its provisions, nothing in it specifically authorizes the NLRB to require employers to post notices if they are not involved in representation cases or unfair labor proceedings.

Employer organizations and business groups have criticized the new rule and the content of the notice on the grounds that it improperly fosters union organizing. The NLRB’s form of notice advises employees that they have the right to:

• Organize a union to negotiate with their employer concerning their wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with their employer setting their wages, benefits, hours, and other working conditions.
• Discuss their wages and benefits and other terms and conditions of employment or union organizing with their co-workers or a union.
• Take action with one or more co-workers to improve their working conditions by, among other means, raising work-related complaints directly with their employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice also advises employees that it is illegal for their employer to:

• Prohibit them from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question them about their union support or activities in a manner that discourages them from engaging in that activity.
• Fire, demote, or transfer them, or reduce their hours or change their shifts, or otherwise take adverse action against them, or threaten to take any of these actions, because they join or support a union, or because they engage in concerted activity for mutual aid and protection, or because they choose not to engage in any such activity.
• Threaten to close their workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit them from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

The new notice rule is another in a string of recent attempts by the NLRB to advance the cause of organized labor through rulings and rulemaking. Employers who have grown accustomed to settled NLRB rules should not assume that the current NLRB will abide by its prior decisions and that, given the opportunity, it is likely to interpret them in favor of organized labor.

The Form of Notice can be found here:

http://www.jmbm.com/portalresource/employee_rights_nlra_Sept_2011

For more information on the Rule and its application to your business, contact Scott Brink.