NLRB Notice Posting Requirements obligates all private sector employers covered by NLRB Jurisdiction

On August 25, 2011, the National Labor Relations Board (NLRB) issued final regulations (194 pages!) concerning required notifications an employer must give to employees concerning their rights under the National Labor Relations Act. This requirement applies to all covered employers, not just those with a union. The requirements will take effect 75 days from the posting of the final rule in the Federal Register. The target deadline is November 15, 2011. If your company is subject to NLRA jurisdiction posting of the Notice is required. This is similar to the posting requirement imposed on federal contractors by executive order.
The NLRB will provide downloadable versions of the poster for free. Failure to post the notice will be considered an unfair labor practice. Willful failure to post the notice may be considered evidence of improper motivation for other acts alleged to be unfair labor practices. In appropriate situations the NLRB may extend the statute of limitations for the filing of other unfair labor practices where an employer fails to post the notice. Although there are no fines for non-posting the consequences can be substantial.
The posting must be “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” If the employer posts personnel rules on the internet or on a company intranet, the notice must also be posted there electronically.
Employers with 20% of their workforce not proficient in English must also post notices in the appropriate languages.

NLRB proposes notification of rights rule

The NLRB has announced a Notice of Proposed Rulemaking, for a new rule which would require employers to notify employees of their rights under the National Labor Relations Act. From the presser:

Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The 60 day comment period is open. replies are accepted electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. A fact sheet is here.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. This is a bigger change than anything the current NLRB has done since the 2008 elections. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation, primarily very quick elections. Details after the jump

Trade Group sues to prevent new notice posting requirement

The National Association of Manufacturer's (NAM) has filed suit to compel the NLRB to suspend its new rule requiring employers to post a notice in the workplace concerning rights employees have under the National Labor Relations Act. It appears this is in keeping with the NAM's battle against regulations it maintains impede productivity and job creation. There is a world of difference between a environmental regulation and a notice posting requirement, but as they are both new regulatory restraint, the NAM is against them. The NLRB requirement requires the posting of a notice that the NLRB provides as a free download. Its hard to distinguish this posting requirement from other requirements under state and federal law which compel employers to post notices to inform employees of their rights. The real issue here is employers fear employees might learn something that they will act upon. There is a strong argument the new requirement, when assessed in the context of the new rules for representation elections the Board has proposed, presents an opportunity for the sophisticated employer who integrates appropriate discussions into a program of education for employees.

Rejected! Federal Judge nixes NLRB notice requirement

A federal district court in South Carolina has ruled the NLRB lacks the authority to promulgate the rule which requires employers to post a notice advising employees of their rights under the National Labor Relations Act. The opinion is here. The opinion is by District Judge David C. Norton who was appointed by by President George H. W. Bush. At first blush this seems to be a rather extraordinary reigning in of the NLRB's rule making authority.

DC Circuit enjoins NLRB Notice requirement

A federal court of appeals in Washington has issued an emergency injunction against the NLRB's employer notice posting requirements which were scheduled to go into effect on April 30th. Previous posts here.

Court (mostly) upholds Notice posting requirement

A federal district court judge has ruled the NLRB lawfully implemented a rule requiring employers to post a notice of NLRB rights. The court noted, however, the failure to post a notice could not be a per se violation of Section 8(a)(1). The Board must employ a case by case analysis which should include a finding of interference or infringement upon rights protected by the Act. As a practical matter this provides wide leeway to find a violation in almost all circumstances. The court also rejected the rule's provision that a failure to post could toll the 10(b) limitations period because it conflicted with the statutory mandated period. The requirements become effective April 30.

NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.

Could Dana Corp be the EFCA compromise?

One of the things the NLRB does well is compile and release statistics on case handling. Sure its self-serving in part, but it does provide raw data. In the latest report there is a real nugget. More after the jump.

NLRB Poster about employee rights

Here is a lighthearted video on the NLRB's requirement employers post a notice advising employees of their rights under the National Labor Relations's Act.

Deadline!

On April 30 two important new NLRB rules become effective. First, all employers subject to NLRB jurisdiction will be required to have posted a notice advising employees of their rights under the National Labor Relations Act. Previous posts here. The poster can be downloaded for free here. Second, the Board will begin operating under a new set of rules for conducting representation elections. Employers would be well served to perform a current vulnerability assessment, including taking affirmative steps to be prepared to respond promptly to any union organizing activity in their workforce.

NLRA notice requirement delayed

The NLRB has postponed until January 31, 2012 the effective date of the new rule requiring employers to post the Notice of NLRA rights. The reason for the delay: "to allow for enhanced education and outreach to employers . . . ."

Employer notice posted

The NLRB has released a downloadable version of the Notice employers are required to post advising employees of their rights under the NLRA. Our previous post on the requirements is here.

Electronic notices required

In a divided decision (Hayes dissenting) the NLRB has adopted electronic notice requirements when that is a "customary means of communicating with employees."

Strike mishandled

The NLRB has issued a press release concerning an Administrative Law Judge decision to require a Michigan employer to reinstate 148 employees allegedly fired because of their union activity. The order also requires payment of back pay. The UAW called a strike in August of 2008 against Douglas Autotech Corporation. The union had not properly given the notice required by Section 8(d)(3). The union made an unconditional offer to return to work the third day of the strike. The employer locked out the union, but continued to negotiate. Subsequently the company changed course and terminated all the union-represented employees, including those who did not strike. Although a strike conducted without proper Section 8(d)(3) renders the strikers activities unprotected, the ALJ found the delayed terminations after the employer had implemented the lockout and continued negotiations, were flagrantly illegal. Although the press release does not say so, the ALJ must have concluded the employer's post-strike treatment evidenced that the workers remained employees, and that the subsequent terminations could not be justified by the prior unprotected strike. This is a costly miscalculation.