Controversy Stirs Over New NLRB Rule
The National Labor Relations Board has issued a new rule requiring union and non-union employers to notify employees of their rights under the National Labor Relations Act (“NLRA”). Employees will be required to comply with the rule beginning November 14, 2011.
The final rule does not differ substantially from the proposed rule outlined in Taft’s December 2010 e-bulletin. The rule requires employers to post an 11x17-inch poster that informs employees of their right to:
- Organize a union to negotiate with their employer regarding wages, hours and other terms and conditions of employment;
- Form, join, or assist a union;
- Bargain collectively through representatives for a contract with the employer setting wages, benefits and other working conditions;
- Take action with co-workers to improve working conditions; and
- Strike and picket, depending on the purpose or means of the strike or picketing.
The required notice also outlines various employer activities that are illegal under the NLRA, including prohibiting employees from talking about or soliciting for a union or distributing union literature during non-work time; questioning employees about union support or activities in a manner that discourages employees from engaging in union activity; retaliating against employees due to union activity; threatening to close the workplace if employees choose a union to represent them; promising promotions or other benefits to discourage or encourage union support; prohibiting employees from wearing union hats, buttons, shirts or pins in the workplace; and spying on or videotaping peaceful union activities and gatherings.
In addition to the physical posting of the notice, employers are also required to post the notice on their internet or intranet site if personnel rules and policies are typically posted there. And, the notice must be posted in English and in another language if at least 20% of employees are not proficient in English.
While an employer cannot be fined for failure to post the notice, failure to do so may be considered an unfair labor practice under the NLRA. In addition, the Board may extend the six-month statute of limitations for filing an unfair labor practice charge against an employer who fails to post the notice. If it is determined that an employer “knowingly and willfully” failed to post the notice, it may be considered evidence of unlawful motive in an unfair labor practice case.
The new rule is currently being challenged in three separate lawsuits. The National Association of Manufacturers (“NAM”) filed suit against the Board and its members on September 8, 2011 in the district court for the District of Columbia, alleging that the new rule exceeds the Board’s statutory jurisdiction and authority. NAM has requested that the court enjoin the Board from implementing and enforcing the rule.
The National Right to Work Legal Defense and Education Foundation and National Federation of Independent Businesses filed a similar lawsuit in the District of Columbia on September 16, 2011. Most recently, on September 19, 2011, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed suit in the district court for the District of South Carolina alleging that the rule exceeds the Board’s statutory authority and violates the First Amendment.
It is possible that additional lawsuits challenging the rule will be filed prior to its November 14 effective date. Absent a court order suspending the effective date, affected employers should be prepared to comply.
For additional information on the rule and notice, please contact a member of Taft’s labor and employment group.
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