*With contributions from Jackson Lewis attorney Jon Spitz.
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 even contains instructions for filing unfair labor practice charges in the event of alleged violations. Jackson Lewis will be commenting on (and 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.
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.
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.