If you follow closely the potential for labor law reform you know that the focus of that effort has now shifted from legislative action—passage of the Employee Free Choice Act (EFCA)—to the enforcement/rulemaking arena involving the National Labor Relations Board (NLRB). In an effort to make amends for their failure to pass EFCA, the Obama Administration has instead given organized labor a decidedly pro-labor NLRB, now with an acting General Counsel—Lafe Solomon—who appears willing to aggressively promote the reform agenda. Developments this week suggest that the NLRB is poised to deliver substantive change, which will make union organizing easier.

In one of the most significant actions to date, today the NLRB issued a Notice of Proposed Rulemaking pursuant to which employers covered by the National Labor Relations Act (NLRA) would be required to post in their workplace educational notices describing for employees their rights to organize a union. It comes as no surprise that the notice proposed by the NLRB is “similar to one recently finalized by the U.S. Department of Labor for federal contractors,” since controversial NLRB Member Craig Becker helped draft the DOL notice when serving on the Obama transition team. Below is a brief summary of the proposed rule.

The Proposed Posting Requirements

The NLRB’s proposed notice would inform employees of their right to act together to improve wages/working conditions, to form a union, to join a union, to bargain collectively or to choose not to do any of these things. The proposed notice also apparently provides examples of potentially unlawful conduct.

Under the proposal, all covered employers would be required to post the notice physically in a conspicuous place “including all places where notices to employees are customarily posted.” Employers that customarily communicate with employees electronically, additionally are required to distribute the notice by email or by prominently posting the notice on a company’s intranet or website. Employers with a significant number of workers who are not proficient in English must provide the notice in the language their employees speak.

The Board proposed the posting requirement reasoning that many American workers are ignorant of their NLRA rights. According to the Board, this “knowledge gap” is attributable to the fact that the “overwhelming majority or private sector employees are not represented by unions” and that immigrants, constituting an “increasing proportion of the nation’s work force, are unlikely to be familiar with their workplace rights.” Moreover, the Board noted that the workplace “is the most appropriate place” to communicate with employees about their statutory rights and that the burden of compliance with the new requirement on employers would be minimal.

In the event that an employer fails to post the notice, the Board proposes several sanctions including: (1) finding the failure to be an unfair labor practice; (2) tolling the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices; and (3) considering the knowing failure to post as evidence of unlawful motive in unfair labor practice cases.

While the Board downplays the significance of this proposed development by pointing out that similar notices are required by other workplace laws (e.g., wage/hour and EEO), it fails to note that this is the first time in the 75-year history of the Act that the NLRB has proposed such a requirement.

The Notice of Proposed Rulemaking will be published in the Federal Register on December 22, 2010. Members of the public can submit comments on the proposal for 60 days, until February 22, 2011.

Memorandum on Remedies

While this development is significant in isolation, that it comes on the heels of another directive issued by the General Counsel yesterday, suggests that the pace of change at the NLRB is picking up and that employers need to be on alert. In Memorandum GC 11-01, the General Counsel announced an initiative to systematically seek appropriate remedies in response to serious unfair labor practices committed by employers during the course of an initial union organizing campaign.

In short, the General Counsel is requiring NLRB regional offices to use more frequently the right they have long had to seek injunctive relief from federal district courts to remedy alleged unfair labor practices pending final resolution of those claims as part of the Board litigation process. The memo authorizes regional offices to include remedies—such as a public reading of the Board’s remedial notice, allowing unions access to bulletin boards, and requiring employers to provide unions a list of employee names and addresses—in complaints and petitions seeking temporary injunctions from federal courts.

We have for some time been predicting change from the NLRB. While the pace has until now been measured, it appears things are about to pick up. All of this change is likely to make union organizing easier and to make it more difficult for employers to exercise the right of free speech that exists under the Act.

Additional Information

We will keep you informed of developments as they occur. In that regard, be aware that we are now in the 60-day comment period regarding the proposed rule, which would require posting of the NLRA rights notice.

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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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