NLRB Announces Proposed Rule Requiring Posting of Notice on Employee Rights

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On December 21, the National Labor Relations Board (NLRB) did something it rarely does: it indicated its intent to change labor law requirements through the regulatory process, rather than its normal process of case-by-case adjudication.

See full text of NLRB’s proposed rule on employee rights notice posting, including introductory commentary. NOTE: This is just a proposed rule at this time, with a sixty-day comment period now open.

NLRB Press Release Summary of Proposed Notice-Posting Rule

The NLRB press release states:

The rule would require employers to notify employees of their rights under the National Labor Relations Act.

[T]he Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

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 proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Key Elements of NLRB’s Proposed Employee Rights Notice-Posting Rule

  • All employers subject to National Labor Relations Act (NLRA) must post notice.
  • Employers must post the required notice of employee rights conspicuously, including all places where notices to employees are customarily posted.
  • Electronic posting by email or on internet or intranet is also required if employer customarily communicates with employee by such means.
  • Translated version may be required if significant portion of workforce is not proficient in English.
  • The NLRB will enforce the new rule by processing alleged failure to post the employee rights notice as an unfair labor practice charge.
  • In addition to remedy of order requiring posting along with a remedial notice, NLRB may enforce rule by tolling statute of limitations for filing an unfair labor practice charge and treating willful failure to post as evidence of unlawful motive in case in which motive is at issue.

Full Text of Proposed Notice

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the
National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

  • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
  • Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
  • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
  • Strike and picket, depending on the purpose or means of the strike or the picketing.
  • Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

  • Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking
    lots or break rooms.
  • Question you about your union support or activities in a manner that discourages you from engaging in that activity.
  • Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
  • Threaten to close your workplace if workers choose a union to represent them.
  • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
  • Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
  • Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

  • Threaten you that you will lose your job unless you support the union.
  • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
  • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  • Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  • Take other adverse action against you based on whether you have joined or support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the
violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: www.nlrb.gov. You can also contact the NLRB by calling toll-free:1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

The National Labor Relations Act covers most private-sector employers.Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the
NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

Looking Ahead to 2009: The Potential Revival of Previously Proposed Federal Employment Laws

In the recently convened Congress, we anticipate the revival of a significant number of labor and employment law bills previously introduced, but not enacted into law. The Democratic electoral successes suggest better prospects for the passage of these laws. In fact, one has already been rushed through the legislative process. However, those that appear to impose substantial cost burdens on business may be less palatable to Congress now that jobs have become such a critical concern.

Labor Law

In addition to the Employee Free Choice Act, discussed in a previous article, federal labor law would also be substantially altered by the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT Act).

This law would redefine “supervisor” for purposes of the National Labor Relations Act. As a result, many workers now deemed to be supervisors would be considered employees. As such, they would be eligible to form and join unions and enjoy other protections afforded to employees under the National Labor Relations Act.

Employment Discrimination Law

The following four efforts to modify existing employment discrimination protections were left on the table by the last Congress:

  1. The Ledbetter Fair Pay Act, a response to a Supreme Court case strictly interpreting the time period within which pay discrimination claims may be brought. This Act has now been passed by Congress. It allows such claims to be brought within a specified time after the date of any discriminatory paycheck, rather than after the date the discriminatory pay practice began.
  2. The Paycheck Fairness Act, which would amend the Equal Pay Act to make it more difficult for an employer to justify differences in pay between male and female employees. This Act would also protect employees who share salary information with their co-workers in furtherance of a sex discrimination investigation, and it would expand Equal Pay Act remedies to include compensatory and punitive damages. It has passed the House already this year, but may face a battle in the Senate.
  3. The Fair Pay Act, which would require equal pay for “equivalent work.” Employers could not pay jobs that are held predominately by women or minority employees less than jobs in the same company held predominately by men or white employees if those jobs are “equivalent in value” to the employer. The Fair Pay Act would make exceptions for different wage rates based on seniority, merit, or quantity or quality of work, and would contain a small business exemption.
  4. The Employment Non-Discrimination Act, which would add discrimination based on sexual orientation to Title VII of the Civil Rights Act of 1964.

Other Employment Issues

Other laws recently proposed involve a variety of other employment issues. These include:

  • The Working Families Flexibility Act, which would create a statutory right for employees to request a change in the number of hours worked, when work is performed, or where work is performed. This Act would not require that the employer agree to any particular request, but would require it to meet with the employee to consider such requests and to provide a written explanation and satisfy other procedural requirements if it refused them.
  • The Patriot Employers Act, which would provide tax credits to employers who increase the proportion of jobs located in the United States.
  • The Employee Misclassification Prevention Act, which would require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. It would also impose penalties on employers who misclassify employees as independent contractors.
  • The Arbitration Fairness Act, which would ban mandatory arbitration agreements in the employment, consumer, franchise, and civil rights contexts.

Employee Free Choice Act: Employee Choice or Union Empowerment?

In the current Congress, the House passed the Employee Free Choice Act (“EFCA”). Although current economic difficulties suggest that passing this legislation will not be an immediate priority for the President and Congress in early 2009, organized labor support was very important in the 2008 Democratic Party electoral success, and the EFCA has long been at the top of labor’s wish list. It is, therefore, expected to be reintroduced and to enjoy substantial Congressional and Presidential support.

The Two Most Significant and Troublesome EFCA Provisions

The EFCA contains two provisions designed to tilt the balance of power in union organizing and collective bargaining quite dramatically towards labor.

In achieving this objective, the first provision also deprives employees subject to union-organizing efforts of a right of privacy that is fundamental to democratic principles — the right to a secret ballot.

The second provision inserts a third-party decision-maker into some labor-management negotiations, depriving employers, employees, and unions of autonomy in establishing terms and conditions of employment.

1. Majority Sign-Up

The first troublesome EFCA provision involves certification on the basis of majority sign-up. This means that a union may be certified as a bargaining representative if the NLRB finds that a majority of employees in an appropriate unit has signed authorizations designating the union as its bargaining representative. (Once a union has been certified, the employer must bargain with it in a good-faith effort to agree on a collective bargaining contract.)

The key difference from current law is that presently, although an employer may voluntarily recognize a union under such circumstances, it need not do so.

Instead, an employer may insist on a secret-ballot election. This way, an employee may sign a union authorization under pressure from fellow employees or aggressive union representatives, yet still vote against the union in the privacy of the election booth.

Under present law, an employer also has an opportunity to campaign to change the minds of employees between the time they sign cards and the election. The frequent success of such campaigns, and claims of unlawful coercion of employees during them, are the main factors leading unions to support this dramatic change in the law.

Granted, there have been abuses under the present election system — by unions as well as employers. But in our opinion, and that of most of the business community, depriving employees of the right to a secret-ballot vote is no solution.

2. First-Contract Mediation and Arbitration

The second troublesome EFCA provision applies if an employer and a union who are engaged in bargaining a first contract are unable to reach agreement within 90 days after starting to bargain. Under the EFCA, either party may refer the dispute to the Federal Mediation and Conciliation Service (“FMCS”) for mediation.

If mediation then fails to result in an agreement after 30 days, the EFCA provides for the dispute to be referred to arbitration, with the arbitrator decreeing contract terms to be binding for two years.

The concern behind this aspect of the EFCA is that often the bargaining of a first contract proves so difficult that unions and/or the employees they represent get frustrated and give up.

Sometimes this occurs because employers abuse the system and do not bargain in good faith as required. But often unions are at least equally at fault. For example, unions may develop unrealistic expectations among employees when organizing them and/or may place their insistence on certain controversial contract terms above the employees’ interest in rapid approval of an agreement containing basic protections and competitive wages and benefits.

Here again, the proposed cure under the EFCA does not fit the disease. Giving a third-party arbitrator unbridled authority to determine contract terms for two years achieves the objective of rapid production of a contract, but at the expense of the fundamental principles of collective bargaining that have been at the heart of American labor policy for over seventy years.

Other EFCA Provisions

As proposed, the EFCA also includes stronger enforcement and penalties addressing employer unfair labor practices that occur during organizing activity and bargaining, including:

  • Investigational priority
  • Civil fines of up to $20,000 per violation
  • Treble back pay

There are no concomitant enhanced penalties for intimidation and coercion of employees by unions.

Conclusion

The EFCA’s proposed changes to the National Labor Relations Act do not enhance employee free choice. To the contrary, under the EFCA, employees would lose substantial control over their employment — without a secret ballot, they would lose an important aspect of control over whether they belong to a union in the first place; and mandatory binding arbitration would potentially remove their right to decide whether to accept or reject a collective bargaining agreement.

We will continue to update you on the progress of the EFCA legislation. We anticipate that at least some portions of it will be enacted by a Democratic Congress and signed by a Democratic President.

However, there remains considerable, well-organized opposition from business groups. With sufficient pressure, even with Democrats in firm control in Washington, the contours of a final law may be less onerous to business.

For example, some knowledgeable sources suggest a possible compromise would be to preserve the secret ballot, but create an expedited election procedure to reduce employers’ opportunity to influence employee votes.

Your involvement in the political process concerning this matter of great interest to all employers can make a difference by helping to forge a reasonable compromise.

Additionally, since some form of pro-labor change is virtually a given, it is not too early to take a good hard look at your vulnerability to unionization and how to reduce it.

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