By Jackson Lewis
Not satisfied, it seems, merely with issuing individual case
decisions that favor organized labor, the National Labor Relations Board
has proposed a rule that would require employers to notify employees of
their rights under the National Labor Relations Act through a uniform
workplace posting. The posting would be required for both unionized and
non-unionized employers and would have to be posted physically and
electronically, at least when electronic posting is a “customary means
of communicating with employees.” Click here to view a copy of the proposed notice.
The rule could have a profound impact on union activism. The notice
informs employees of their right to unionize, identifies unlawful
conduct by employers, and contains instructions for filing unfair labor
practice charges in the event of alleged violations. Jackson Lewis will
be filing comments opposing the proposed rule on behalf of a number of
entities and employers generally. Comments are due in mid-February.
Implementation in some form, however, is a virtual certainty.
Failure to Post Notice
For a company's failure to post the notice, the proposed rule would
extend or toll the six-month statute of limitations for filing an unfair
labor practice charge against the employer.
An employer's
“knowing” failure to post the notice, moreover, could be considered
evidence of unlawful motive in an unfair labor practice case involving
other alleged violations of the NLRA.
Finally, failure to post would be considered an independent unfair labor practice.
What Employers Should Do
Employers should begin preparing for the implementation of the rule by considering the following actions:
- Train managers and supervisors on their rights and responsibilities under the National Labor Relations Act.
- Develop a communications strategy to explain to employees
the disadvantages of union representation. Posting of the notice may
spark interest in unionization. Employers should anticipate posting by
putting the notice in context and explaining what a union really could
mean for employees.
- Audit employment practices, procedures and benefits and take remedial measures, if needed, to ensure that employees are not vulnerable to a union sales pitch.
- Consider training an internal “SWAT Team” prepared to communicate with employees convincingly and lawfully in the event of union activity.
- Conduct a bargaining unit analysis to ensure potential bargaining units are configured in the manner most advantageous to the employer and its operations.
Jackson Lewis attorneys will discuss this and other labor law changes in our complimentary program, “Surveying the New Labor Law Landscape — 11 Changes in ’11: Tips for Employers.”
Reserve your seat at the office near you. Contact the Jackson Lewis
attorney with whom you regularly work about this and other workplace
developments.