Employers Will Likely Be Required to Notify Employees of Their Right to Join a Union
By: Renisa A. Dorner
The Employers' Association Bulletin, February 2011
Since labor"s agenda will likely be stalled by the Republican-controlled House of Representatives, the National Labor Relations Board (NLRB) has come to labor"s aid through an administrative mechanism. On December 22, 2010, the National Labor Relations Board (NLRB) issued a proposed rule that would require nearly all employers to notify their employees of their right to join a union or to engage in activities protected by the National Labor Relations Act (NLRA). Currently, there is absolutely no requirement that an employer provide its employees with any information concerning unions. In fact, many employers have adopted a union-free policy statement that explains to their employees why union representation is unnecessary. If you haven"t already, you may want to consider such in the near future.
The type of notice being proposed by the NLRB is similar to the type of notice that most employers are required to post for other laws already, such as the FMLA, wage and hour, etc. However, in addition to the physical posting of a paper notice, the NLRB rule also requires that notices be distributed electronically, such as by e-mail or on an intranet site, if this is the manner in which the employer customarily communicates with its employees. In addition, if a significant number of employees are not proficient in English, then the notice will have to be posted in the language spoken by the employees. Upon the rule being finalized, the notice (plus translated versions) will be available from the NLRB"s regional offices or even downloadable from the NLRB website.
"The NLRA is almost unique among major federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces informing employees of their statutory rights," the NLRB stated. It is this lack of a statutory provision that caused one member of the NLRB to dissent from the proposed rule. Dissenting member Brian Hayes stated, "In my view, it is essential to have a broader basis for enacting such a rule than the opinions of my colleagues and the treatises of the party requesting rulemaking…. Section 10 of the Act indicates to me that the Board clearly lacks the authority to order affirmative notice-posting action in the absence of an unfair labor practice charge filed by an outside party."
In all likelihood, the proposed rule will become a final rule this Spring. Therefore, employers must keep an eye on this development as penalties can be assessed for failing to post the required notice. Such sanctions include a finding of a an unfair labor practice, the tolling of the six-month statute of limitations for an unfair labor practice charge, and even potentially a finding of union animus, if such failure is wilful. Practically speaking, the NLRB anticipates that most employers failing to post the notice will do so out of pure ignorance. So, typically, when the failure to post is recognized, the employer will comply without formal administrative action being taken by the NLRB.
Anyone wishing to submit comments on the proposed rule must do so by February 22, 2011. These comments should be identified by using the following code, 3142-AA07, and may be sent electronically through www.regulations.gov, or mailed to Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th St. NW, Washington, DC 20570.
