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NLRB Reform Agenda Will Put Employers’ Union Avoidance Strategies to the Test

Recent developments following the National Labor Relations Board (NLRB) election results indicate that the NLRB will affect sweeping changes in 2011 making union organizing easier and compliance more onerous and expensive for employers. Employers face greater enforcement mechanisms, modifications to agency policies and procedures, and additional regulatory requirements under certain initiatives implemented and under consideration.

For instance, the NLRB issued a Notice of Proposed Rulemaking which was published in the Federal Register on December 22, 2010. If adopted, the rule requires employers to post in the workplace notices describing employees’ rights under the National Labor Relations Act (NLRA), including, but not limited to, the right to organize a union, engage in collective bargaining, and conduct other forms of group-oriented activity (such as strikes and picketing). The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

Under this proposed rule, all employers covered by the NLRA would be required to physically post and maintain the notice in a conspicuous location, “including all places where notices to employees are customarily posted”. Employers that customarily communicate with their employees by electronic means are additionally required to disseminate the notice by email or by posting the notice on the company’s website. If a significant number of employees are not proficient in English, then the employer must provide the notice in the employees’ language.

Employers that fail to post the notice would be subject to the following sanctions:

(1) finding the failure to post the required notices to be an unfair labor practice (an NLRA violation);

(2) tolling the statute of limitations for filing unfair labor practice charges; and

(3) considering the failure to post the notices as evidence of unlawful motive in future unfair labor practice cases.

Although similar notices are required by other federal workplace laws (e.g., ADA, FLSA, ADEA and FMLA), the proposed NLRA notice is different in that the NLRA notice would contain not only a summary of the law, but actual examples of employer conduct that violates the NLRA. The sole dissenting Board member, Brian E. Hayes, questioned whether the NLRB has the authority to promulgate or enforce the notice posting rule.

This proposal is one of many NLRB initiatives that will substantially impact labor relations for employers in 2011 and beyond so check back as this is a hot topic and there will be more posts to come.”