NATIONAL LABOR RELATIONS BOARD TO REQUIRE PRIVATE EMPLOYERS TO NOTIFY EMPLOYEES OF THEIR RIGHT TO UNIONIZE
On December 21, 2010, the National Labor Relations Board (“NLRB”) issued a Notice of Proposed Rule-making in which the NLRB seeks to require private sector employers to notify employees of their rights under the National Labor Relations Act (the “Act”). Not surprisingly, the rule proposed by the NLRB is similar to the one that was recently enacted by the U.S. Department of Labor (“DOL”) in June 2010, which applied to federal contractors. See
The NLRB’s proposed rule would require all employers covered under the Act (which includes virtually all private sector employers except for agricultural, railroad, and airline employers) to post notices advising employees of their rights under the NLRA, including the right to organize and join a union or to refrain from doing so. The notice specified in the rule must be at least 11x17 inches in size and must be posted in conspicuous places where the employer would normally post notices for employees. Employers who customarily post other messages electronically would, subject to specific requirements, also be required to post the notice electronically.
Employers who fail to comply with the rule would face sanctions, which includes posting remedial notices. In addition, if the NLRB finds an employer willfully refused to post the notice, it will deem that not doing so constitutes anti-union animus, which could be held against the employer in any unfair labor practice proceeding.
The NLRB is inviting public comment on the proposed rule, including the issue of whether the NLRB has the authority to promulgate and enforce such a rule. Public comments must be submitted within 60 days of publication of the proposed rule. Based on the current composition of the NLRB (three Democrats and one Republican) and its apparently friendly disposition towards unions, it is likely that the proposed rule will be finalized and become effective sometime in the spring of 2011.
Complying with such a rule is likely to provoke questions from employees concerning their rights and unionization. Employers seeking to remain union-free must be proactive in ensuring that their supervisors and managers are trained to field such questions and are able to provide appropriate responses.
Obermayer attorneys are available to answer your questions and assist you in formulating new practices and strategies to ensure that your company is prepared when the rule is finalized and is insulated against interference from third parties.