12.21.2010 Board Proposes Rule Mandating NLRA-Rights Posters in the Workplace and Announces an Aggressive New Initiative Against Employers in Organizing Contexts

With the Republican gains in the Senate and takeover of the House in the November elections, labor’s top statutory priority, the Employee Free Choice Act, has been all but declared dead. In an effort to strengthen the National Labor Relations Act (“NLRA”) the National Labor Relations Board (“NLRB”) took two big steps this week that make significant changes in the landscape for employers under the NLRA.

NLRB Proposes Rule Mandating NLRA-Rights Poster in the Workplace

On December 22 the NLRB published a proposed rule that, if enacted, will require employers to notify employees of their rights under the NLRA. Details of the proposed rule can be found at the NLRB’s website. The rule, which would apply to almost all private employers regardless of whether or not they are unionized, will require employers to display prominently in the workplace a specific 11-by-17-inch poster that informs employees of their rights under the NLRA, including their right to organize a union. In addition, the proposed rule requires employers to distribute the notice through email or by posting it on an intranet site if the employer “customarily communicates with its employees by such means.” This development represents the NLRB’s first foray into administrative rule-making and could be a harbinger of more rules in the future.

The consequences for employers that fail to follow the proposed rule are significant and include the following:

- Unfair Labor Practice Charge – Under the proposed rule, failure to post the required notice would constitute a violation of Section 8(a)(1) of the NLRA, and, thus, could result in an unfair labor practice charge against the employer.

- Expanded Statute of Limitations – An employer’s failure to post the notice could also give employees theoretically unlimited time to file otherwise unrelated charges. Under existing law, an employee generally must file a charge alleging a violation of the NLRA within six months of the alleged violation. Under the proposed rule, if an employer fails to post the required notice, the employee may be allowed to bring charges that occurred more than six months in the past unless the employee had actual or constructive notice that the employer’s actions were unlawful. The Board’s justification for this considerable expansion of NLRA liability is that, without the poster in the workplace, employees may not be aware of their rights.

- Proof of Unlawful Motive – The proposed rule also has other substantive implications for employers facing unfair labor practice charges. The NLRB has indicated that failure to post the notice may, in and of itself, be considered evidence of an employer’s unlawful motives. As with the expanded statute of limitations, this aspect of the rule has implications even with respect to charges that are unrelated to the poster. For instance, where an employee alleges that her employer unlawfully disciplined her based on her union membership, the NLRB may conclude that the employer’s failure to post the required notice is evidence of anti-union animus and, thus, that the discipline was the product of unlawful motives.

Even if employers do post the notice, they still face the additional problem of proving that they had posted it in time. That is, a union witness seeking to establish animus or take advantage of the longer statute of limitations may simply assert that he never saw the poster; the issue could then devolve into a he said/she said situation where the NLRB may defer to the union’s testimony. Should the proposed rule take effect, employers should consult with an attorney and take preemptive steps to address this potential problem.

This rule is also an example of an effort by the new NLRB to expand its powers. Historically, labor law has evolved through NLRB proceedings and federal litigation, and it is virtually unprecedented for the Board to institute such a sweeping change outside of the adjudication process. However, the current Board already has indicated its intention to expand employee rights through rule making. The Board is not unanimous in its endorsement of this new approach, however, and Member Hayes has dissented from the promulgation of the proposed rule. Member Hayes has noted, correctly, that in other statutes such as Title VII Congress specifically mandated posted notices of employee rights, but it did not do so in the NLRA. Employers and other members of the public have 60 days in which to submit formal comments on the proposed rule. Williams Mullen plans to submit a comment during this period, and welcomes suggestions and input from concerned employers.

Acting General Counsel Announces Aggressive Remedies Initiative in Organizing Context

Spreading further cheer to employers this holiday season, the NLRB’s Acting General Counsel, Lafe Solomon, issued a memo (GC Memorandum 11-01) on December 20 announcing an initiative to “systematically” seek effective remedies for “serious” unfair labor practices committed during the course of union organizing campaigns. According to the Acting General Counsel, “[i]n all organizing cases, the remedial touchstone should be prompt and effective relief to best restore the status quo and recreate an atmosphere in which employees will feel free to exercise their [rights under the NLRA] to make a free choice regarding unionization.”

While the Acting General Counsel fails to define what employer actions will constitute “serious” violations of the NLRA during an organizing campaign, he has made it clear that actions such as an employer’s solicitation of grievances from employees during an organizing campaign, which neither the NLRB nor federal courts have found to be a hallmark violation of the NLRA, will constitute the type of violation that will justify the General Counsel’s office seeking extraordinary remedies. According to the Acting General Counsel such actions “demonstrate to employees the extent to which an employer is willing to go to avoid unionization" and may be as effective as more threatening conduct in chilling the exercise of employee rights under the NLRA. The Acting General Counsel’s memo also states that, when violations of the NLRA occur during organizing campaigns, additional extraordinary remedies that the NLRB may seek include having an employer read out loud to its employees a notice stating that it has violated the law and providing unions with the right to come on the employer’s site to post bulletins or obtain employee contact information.

Only time will reveal the full ramifications of these two actions by the NLRB. Whatever their impact on employees’ rights, however, it is clear that employers who are ignorant of the changes may face serious and unwelcome consequences. Employers with questions regarding these developments are encouraged to contact a member of the Williams Mullen Labor and Employment team.

For more information about this topic, please contact the authors or any member of the Williams Mullen Labor & Employment Team.


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