Unions and Labor Relations

The past few days have not been pretty for the National Labor Relations Board ("NLRB") and its controversial Notice of Employee Rights poster requirement.   Last Friday, a South Carolina federal district court found the proposed notice-posting rule invalid.  Today, the DC Circuit Court of Appeals entered an injunction temporarily barring the NLRB from enforcing the notice-posting rule.  In response to the DC Circuit’s ruling, NLRB Chairman Mark Gaston Pearce confirmed that regional NLRB offices will not enforce the rule pending resolution of these issues.  The DC Circuit will hear oral argument in September 2012.

What does this mean for you?  It means the poster requirement, which was set to go into effect April 30, is on hold yet again, and you do not need to post the notice.  This time, it’s on hold until at least the Fall of 2012.

If you would like more background on the notice-posting rule, click here to access my previous posts on the issue.  We will continue to update you as this seemingly never ending saga continues to unfold. 

As of today, the National Labor Relations Board ("NLRB") reversed course on its new notice requirement, which I have discussed in prior posts (here and here).   The NLRB has pushed the posting requirement back to January 31, 2012 to allow for "enhanced education" and "outreach to employers."  You can read the press release here.

Though the NRLB just publicized its decision to delay the posting requirement today, there is already speculation about the reasons for the delay.  It’s no secret many businesses were unhappy with the new posting requirement, not to mention a lawsuit attempting to block the posting requirement is currently pending in federal court.  Whatever the reason, all workplaces can put the poster on hold for now. 

I’ll continue to post updates as this story unfolds.

In follow up to my post on the new NLRA Employee Rights Notice requirement, the NLRB has released the official poster on its website.  Click here to download a copy. 

The posting requirement is effective beginning November 14, 2011.  Remember, this applies to most private employer, regardless of whether or not the workplace is unionized.  If you have questions about whether the new notice requirement applies to you, please let us know.

Last week, the National Labor Relations Board issued a Final Rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act.  The Final Rule, entitled "Notification of Employee Rights Under the National Labor Relations Act, contains a long list of employee rights, and many examples of unlawful employer conduct. 

The notice requirement takes effect November 14, 2011.  Copies of the notice will be available on the NLRB’s website beginning November 1, 2011.  The notice should be posted in the location where employers post other required notices.  Additionally, if employers typically post workplace rules on an internet or intranet site, the employer must also post the notice on that site. 

You’re probably thinking, "Why do I care, we don’t have a union," right?  Wrong!  This new posting requirement applies to both union AND non-union employers subject to the NLRA, which means it covers just about every private employer.  There are limited exceptions, including agricultural, railroad, and airline employers, but it applies to the vast majority of workplaces.

The NLRB has posted a helpful Q&A on the Final Rule, which can be found here.  Be sure to post the notice no later than November 14, 2011, as failure to properly post the notice may constitute an unfair labor practice under the Final Rule.  If you have questions about the notice or whether you’re required to post it, please contact counsel to discuss.

Last week, the National Labor Relations Board ("NLRB") issued a news release announcing a proposed rule which would impose a new notice requirement on employers subject to the National Labor Relations Act ("NLRA").  The notice would inform employees of their rights under the NLRA, including their right to unionize.

According to the press release, the NLRB "believes that many employees protected by the NLRA are unaware of their rights under the statute.  The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions." 

The proposed rule is open for a 60-day comment period.  If the rule passes, covered employers would be required to post the employee rights notice where other notices (i.e. FLSA notices, FMLA notices, OSHA notices, etc.) are typically posted.  Additionally, an employer may be required to post the notice electronically, if that is the primary method by which the employer communicates with its employees.

A fact sheet is available here.  The full text of the proposed rule is available here.  Check back with us for an update after the comment period ends February 22, 2011.

The final rules implementing Executive Order 13496, which was signed by President Obama on January 30, 2009, were recently issued.  Under the new rules, federal contractors and subcontractors are required to inform employees of their rights under the National Labor Relations Act ("NLRA"), the primary federal law that governs relations between unions and private employers.  Importantly, the new posting requirements do not apply to contracts under the Simplified Aquisition Threshold (currently $100,000) or to subcontracts under $10,000.

The notice informs employees of their NLRA rights with regard to organizing and collective bargaining, conduct that is deemed an unfair interference with employee rights, and information on contacting the National Labor Relations Board if an employee believes his or her rights have been violated.  The notice must be posted conspicuously in plants and offices where notices to employees are customarily posted.  If the employer customarily posts notices electronically, the employer must post this notice electronically as well.

The Department of Labor ("DOL") issued a "Fact Sheet" with helpful information, which you can download here.  The DOL also provides the model notices on its website.  The notice must be at least 11×17 inches in size.  Employers who can print on large paper can use this form.  Employers without the capability of printing on large paper must use this form, and tape it together so that it is at least 11×17 inches in size.

Please note that the notice must be posted no later than June 21, 2010.

A provision in fictional ACME, Inc.’s employee handbook states:

"All employees are strictly prohibited from discussing their salary or wage information with one another. Violation of this policy may lead to discipline up to and including termination."

This provision, or one similar to it, is undoubtedly found in handbooks or other work rule documents in many workplaces. Is there a problem? Yes—and it could become more pronounced if not rectified soon by ACME and/or other employers.

Many employers are surprised to learn that the National Labor Relations Act ("NLRA") applies to non-union workplaces. It does, and Section 7 of the NLRA guarantees that all employees, regardless of union status, have the right to engage in "concerted activities for the purpose of . . . mutual aid or protection." This means that all employers, both union and non-union, are prohibited from interfering with their employees’ right to discuss terms and conditions of employment, including wages and benefits, with each other.

In a relatively recent National Labor Relations Board decision, the NLRB found that an employer’s "Confidentiality" rule, which prohibited employees from discussing disciplinary information and salary, "plainly infringes upon Section 7 rights" as it "explicitly restricts discussion of terms and conditions of employment."

Now that we know stifling discussion about wages and benefits risks violation of the NLRA, what about other ramifications?  Another consideration after the jump

Continue Reading The NLRA…Not Just for Unionized Workplaces