Micro Union Case Hits Federal Court Of Appeals

Posted by Mark Theodore on April 23, 2012

One of the NLRB's most sweeping decisions in decades, Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf, has reached a federal appeals court, as the employer seeks to have the decision overturned.  As we have previously discussed, the Board in this case established the micro union standard, where the bargaining unit sought by a union will be given special deference if the employee grouping selected shares a community of interest.  The significance of this rule is that an employer now may be faced with multiple bargaining units (e,g,, by department or job classificatiion or title) when the standard for 77 years has been to look at the industry involved and the functional integration of the employees.  Now, if an employer seeks to include additonal employees in the bargaining unit, it must demonstrate the larger grouping shares an "overwhelming"community of interest.  In the rule's short tenure, it has become apparent that the undefined new standard is (almost) impossible to reach. 

The case is being heard by the Sixth Circuit Court of Appeals in Cincinnati, Ohio.  As of April 23, 2012, the principal parties and friends of the court have filed their briefs.  Just as with the underlying case, it is anticipated that the court will receive numerous briefs from interested parties. The next step will be for the court to hold oral argument.  A decision is not expected for several months.

We were privileged to file amicus briefs separately on behalf of two distinguished organizations, the Retail Industry Leaders Association ("RILA") and the Coalition for a Democratic Workplace ("CDW").  As the briefs demonstrate, the Board's rule in Specialty Healthcare imposed an entirely new legal framework without proper notice and discussion, as well as violated key provisions of the NLRA.  Those briefs are attached here RILA Amicus Brief (Apr 23 2012).pdf and here Coaliton For A Democratic Workplace Amicus Brief (April 23, 2012).pdf

As always, we will be watching this case very closely and will report significant developments as they occur. 

NLRB Reveals More Details To Proposed Election Rule Changes

Posted by Mark Theodore on November 29, 2011

As we reported earlier, the NLRB announced it was ready to vote on some proposed amendments to the rules concerning representation elections. There was no indication in the original announcement of about the substance of the changes.

On November 29, 2011, NLRB Chairman Mark Pierce disclosed more information in the form of a Board Resolution. This proposed resolution will be formally introduced on November 30, at a public meeting of the NLRB where its approval will be subject to vote by Chairman Pierce, Member Becker and Member Hayes. There seems to be little doubt that the Chairman and Member Becker will vote to approve the resolution, while Member Hayes will very likely register a vote against it if he participates in the meeting.

The regulations were initially proposed on June 22, 2011 and have been the subject of vigorous debate ever since. More than 60 witnesses testified at a hearing before the Board on July 18-19, and over 65,000 written comments were filed later in the Summer. The process has resulted in an unheard of public fight between the Chairman of the NLRB and Member Hayes, each of whom alleges the other is engaging in improper conduct. The basic premise of reality television, where all is laid bare to be seen and analyzed by the public, has finally reached into a government agency.

The resolution that will be offered tomorrow can fairly be categorized as "not good, but not as bad as it could have been." While the NLRB has not dropped any of its plans to overhaul the entire representation election system, it is important to note, for example, that the NLRB will not be voting to adopt the actual "quickie" election timeframe of as little as ten days which was forecast under the original rules. Still, although not as sweeping as the NLRB initially proposed, the resolution to be voted on this week represents significant and fundamental changes to the way representation petitions are likely to be processed in 2012. The resolution proposes the following changes:

  • Allow the Hearing Officer (a Regional Office employee) to limit a pre-election hearing to those matters relevant to the question of whether an election should be held.
  • Authorize the Hearing Officer to decide whether or not to permit post-hearing briefs, depending on whether the case presents issues that would benefit from briefing.
  • Eliminate pre-election appeals to the NLRB and instead consolidate it with a single, post-election review proceeding.
  • End the practice of not scheduling an election for approximately 25 days after a decision and direction (which is the current practice to allow time for a pre-election request for review, now eliminated).
  • Limit the grounds upon which special permission to appeal to the Board may be granted to “extraordinary circumstances”.
  • Make the post-election appeal to the Board discretionary, instead of as a matter of right.

Any resolution approved on November 30 would still require the NLRB to draft and formally approve by separate vote the final regulations.

What we can tell from this new information, however, is that in the interests of “streamlining” an allegedly outdated, burdensome process, the NLRB’s proposed amendments will as a practical matter:

  • Give Hearing Officers and Regional Directors much more discretion to decide the scope of a representation hearing. This will automatically shift additional burden to employers to preview their case, including what proof they have, in order to persuade the Region to even hold a hearing. However, if the Hearing Officer or Regional Director is not convinced, then the issue may never be decided by the NLRB. Take, for example, a typical case. The union petitions for a unit of 50 employees. The employer asserts that the actual unit should be 55 employees (50 petitioned for and 5 additional), because of the interaction and community of interest of all the employees. If the Hearing Officer decides that the employer did not raise a significant enough issue to have a hearing, then the only way the employer would be able to have the issue decided is to ask the 5 additional employees to vote in the election. Those employees' ballots will then be challenged. If the five votes are determinative, meaning they could affect the outcome of the election, then a hearing would be held to discuss the eligibility. But...if the ballots are not determinative, then no hearing will be held and the employer's issue will not receive due consideration from the NLRB.
  • Most important, the proposed changes must be read in connection with the NLRB's recent decision in Specialty Healthcare about which we reported here. In that case, the NLRB imposed a new, but ill-defined standard for challenging the appropriateness of a petitioned-for bargaining unit. If the union petitions for “an” appropriate unit, i.e., one whose members share a community of interest, then that unit will be accepted by the NLRB unless the employer demonstrates the larger unit possesses an “overwhelming community of interest.” This new, higher standard combined with the front-end discretion to hold a hearing means fewer hearings will occur, and employers pressured to schedule an election at the earliest possible date.
  • Giving the Regional Director and Hearing Officer more discretion to determine if an issue is worthy of a hearing also will likely mean the Regional Directors will decline to hold hearings unless they can be persuaded by a strong, detailed offer of proof that the petitioned-for unit is inappropriate. In other words, the employer must spend time persuading the Region to even hold a hearing when it could be using the time to prepare its case, One can imagine that a) this will not be uniformly applied throughout the various Regions and b) that it now makes it incumbent on the employer to prove its case simply to justify having a hearing.
  • If a hearing is held, the Regional Director's ability to dispense with post-hearing briefs will automatically shorten the timeframe for making a decision. Currently, briefs are due one week after the hearing closes, and sometimes longer if there is an understanding due to parties' schedules (and yes, plenty of union counsel have asked for extensions to file briefs). Elimination of post-hearing briefs is another easy way for the NLRB to reduce the election timeframe.
  • If the proposed changes are made, an election would be held in a much shorter timeframe if the employer does not otherwise agree on the unit issues. Under the current process, if the parties do not agree on the bargaining unit and the Regional Director issues a decision on the unit issue, the election then must be scheduled between 25 to 30 days from the date of decision. The resolution proposes eliminating the 25 day period (ostensibly because the NLRB is eliminating the pre-election appeal period); presumably, the election could be scheduled as soon as practical by the Regional Director, which might mean ten days after decision.

The tragedy in all of this is, of course, that the NLRB has embarked on a course of fixing a problem that doesn't exist. One problem with fixing something that is not broken is that it has unintended consequences. Moreover, the "fixes" proposed by these rules also appear to have one very clear intended consequence: tilting the playing field in favor of unions and sharply limiting debate on one of the most important issues facing employees and their employers.

We will keep you posted on these important developments as they occur.

NLRB To "Vote" On Quickie Election Rules November 30

Posted by Mark Theodore on November 18, 2011

The NLRB announced today that it was going to hold a vote on its proposed regulations to upend the well established and longstanding representation case procedures.  According to the NLRB's announcement today, the vote is over "whether to adopt a small number of amendments" proposed earlier this year. This may well be the understatement of the year as very few people, if any, believe that the NLRB will do anything short of adopting all of the proposed changes, not just a few unidentified amendments.

In fact, Member Hayes, in a scathing letter to Congress, also dated today, asserts his two colleagues are determined to issue a final rule before the expiration of Member Becker's term at the end of the year. In this letter, Member Hayes levels pointed criticism of the agency's rulemaking process as contrary to precedent and practice:

In my dissent to the Notice of Proposed Rulemaking, I criticized the majority's use of 'a rulemaking process that is opaque, exclusionary, and adversarial,' in contravention with the Administrative Procedure Act, the Government in Sunshine Act, and President Obama's January 21, 2009, Memorandum of Transparency and Open Government, and in sharp contrast to the Board's procedural practice during the 1987-1989 rulemaking for appropriate bargaining units in the healthcare industry.  That criticism apparently made no impression on my colleagues, who have continued this process in the same manner, and without my participation; and who now have made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker's without regard to Board tradition or rule.

One wonders what the environment must be on the 11th floor of the NLRB where all the Members have their offices.  

Of course, this latest news, while hardly surprising, makes one wonder the thought process of the NLRB. As noted earlier here, the NLRB postponed the requirement that all employers under its jurisdiction post rights notices after a public firestorm, accompanied by several lawsuits challenging the rule.  That outcry was over a notice posting; what will the public's response be to this seemingly predetermined outcome?   Litigation is certain to be filed.  The NLRB's own public divisions are unlikely to calm the debate.

The NLRB's vote will be made at a public meeting and streamed live on the internet.  More to come. . .

Government Tightens Squeeze On Contractors, Publishes Final Persuader Rule For DoD, NASA and GSA Contracts

Posted by Mark Theodore on November 02, 2011

Contracting with the Department of Defense ("DoD"), National Aeronautics and Space Administration ("NASA") and General Services Administration ("GSA") will become more burdensome after December 2, 2011, according to final regulations published today.  The regulations, which were proposed on April 14, 2010, and were adopted without any changes (no surprise there), deem certain labor relations costs unreimbursable by the federal government.  The new regulations, set forth in bold, adds to the existing regulation:

(a) Costs incurred in maintaining satisfactory relations between the contractor and its employees (other than those made unallowable in paragraph (b) of this section), including costs of shop stewards, labor management committees, employee publications, and other related activities, are allowable.

(b) As required by Executive Order 13494, Economy in Government Contracting, costs of any activities undertaken to persuade employees, of any entity, to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing are unallowable.  Examples of unallowable costs under this paragraph include, but are not limited to, the costs of-

(1) Preparing and distributing materials;

(2) Hiring or consulting legal counsel or consultants;

(3) Meetings (including paying the salaries of the attendees at meetings held for this purpose); and

(4) Planning or conducting activities by managers, supervisors, or union representatives during work hours.

In theory, the rule purports to simply say the contractor cannot charge the government for certain expenses, which sounds good, especially in these trying economic times.  Practically speaking, however, this rule will do nothing but cause problems for non-union employers while rewarding unionized contractors.  Here are a few examples:

  • The rule says it is neutral and applies to statements for or against a union, but let's be honest:  how many unions are federal contractors that would fall under this rule? 
  • The rule on its face allows charges for "union stewards" to work on government paid time, but disallows a supervisor expressing his or her view about unionization.  And union stewards always act in a manner that is efficient for the business, right?  What if the supervisor's view is personally held and not one of employer policy, would the employer have to deduct the estimated amount of the conversation from any billing to the government? If so, how would it estimate the time? 
  • If an employee asks a question of his or her supervisor about unions, must the supervisor account for the time spent answering the question?
  • If an employee asserts that he or she had a conversation with a supervisor about the union, what is considered persuader activity?  What if the supervisor's answer is completely factual?  Who decides what is persuader activity and what is not? Will the government put the contract in jeopardy based on the allegation?
  • A union can use whatever resources it gets, often indirectly from the government through public sector dues payments, to use lawyers and hire organizers, but these expenditures are not affected by the rule.  The private sector employer, however, must segregate such costs.

In sum, this change while facially neutral does not even withstand the slightest scrutiny.   Like many other regulations popping out of the government like so many gumballs from a machine, this one too may be challenged in the courts.

The changes the administration forces onto federal contractors foreshadow what it intends for all private sector employers.  For example, the federal government required contractors to post the NLRB rights poster months before the NLRB issued the broader rule covering all employers under its jurisdiction.  Likewise, this final rule is similar to the Department of Labor's attempt to narrow the LMRDA's advice exemption, about which we reported here.

 

Rhyme or Reason? Trying to Make Sense of the NLRB's Social Media Cases

Posted by Scott Faust on October 12, 2011

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been spilled by commentators and the OGC, itself, trying to help employers and their counsel make sense of it all.  The law is still developing – it has only been a few weeks since an ALJ rendered the first decision in a Facebook case – but thus far, social media cases have been evaluated and decided on the basis of existing legal principles.  There has been no indication that existing rules will be modified or adapted to meet the realities of the digital world, despite fundamental differences in the character of on-line communications versus more traditional forms of employee communication.  Though the rules may be familiar, applying them to social media cases is a challenge.

The majority of cases generally fall into two categories, with some overlap: (1) those involving discipline based upon employee conduct on social media sites and (2) those challenging employer social media policies as overbroad and unlawful restrictions on employees’ rights under the NLRA.  With the stated intention of offering assistance to labor law practitioners and HR professionals, NLRB Acting General Counsel Lafe Solomon issued a report this past August explaining the rationale underlying the OGC’s decisions in a sampling of the key social media cases within the last year (OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases). 

When is employee conduct on social media sites protected by the NLRA?

The cases to date make clear that existing standards defining protected concerted activity will be used to evaluate employees’ social media activities.  Non-union employers must not lose sight of the fact that their employees are also protected by the NLRA and these standards apply whether or not employees are represented by a union. 

  • An employee’s activity is concerted when the employee: 
    • acts with or on the authority of other employees;   
    • seeks to initiate or to induce or to prepare for group action;
    • brings “truly group complaints” to management’s attention. 
  • Discussions between or among employees must be “a logical outgrowth” of group action or collective goals. 
  • An employee’s activity is not concerted when the employee acts alone or on behalf of him or herself, regardless of whether other employees may benefit and regardless of whether the object of the employee’s action is something about which other employees would be concerned.   
  • Disparaging comments about an employer, including supervisors, are generally protected, but they may lose the Act’s protection when they: 
    • are unrelated to a dispute over working conditions; 
    • focus only on the employer’s products or business policies, particularly if the criticism comes at a “critical time” for the employer 
    • are reckless or maliciously untrue; 
    • are appeals to racial, ethnic or similar prejudices; o 
    • are insulting or obscene personal attacks that cross an ill-defined “I know it when I see it” line of propriety.

The difficulty of applying these principles to social media cases is aptly illustrated by the first “Facebook” case to be decided by an ALJ, Hispanics United of Buffalo, Inc., which was decided on September 2, 2011.  In that case, the ALJ found that a nonprofit, non-union employer violated the NLRA by terminating five employees who had engaged in protected concerted activity.  Specifically, they had engaged in a Facebook discussion concerning another employee’s criticism of their job performance that included vulgar language.  In so ruling, the ALJ recognized that individual action can be protected as concerted action as long as it is engaged in with the object of initiating or inducing group action.  The facts of the case, however, indicate that there was no evidence of the terminated employees’ intent to take group action beyond their Facebook postings.  The ALJ nonetheless concluded that the terminated employees were “taking a first step towards taking group action,” and by terminating them, the employer prevented them from taking any further group action.  

Distinguishing Hispanics United from cases in which no concerted activity was found -- e.g., where an individual employee posted a complaint that received supportive messages from co-workers but did not otherwise manifest any intent to induce group action -- can be challenging.  For example, in another case discussed in the Acting GC’s report, Wal-Mart, No. 17-CA-25030, the OGC declined to issue a complaint where an employee was disciplined for posting vulgar comments to his Facebook page that were critical of local store management.  Although other employees submitted supportive comments, the OGC found that the postings were an expression of an individual gripe that was not protected concerted activity.  In so finding, the OGC noted that the Facebook posts contained no indication of the employee’s intent to initiate or induce group action – just like the Facebook posts in Hispanics United.  

Though the Wal-Mart case and several others described in the Acting GC’s Report manifest the OGC’s recognition that there are limits to the scope of protected concerted activity in the social media context, the conclusion by the ALJ in Hispanics United that the terminated employees’ Facebook posts were protected because they were “taking a first step towards taking group action” presents employers with the difficult task of deciding when to infer an individual employee’s intention to take group action and when to treat a post as an individual complaint.  In this regard, the fact that all five employees who participated in the Facebook exchange were terminated was significant.  The ALJ specifically found that the employer’s termination of all five employees for their Facebook postings established that the employer viewed the five as a group and that they were engaged in concerted activity.  

Though these cases are highly fact-specific, and though application of the operative legal principles to the facts of each case can be difficult, a few guidelines do emerge from the body of cases reported thus far: 

  • Employee conduct on social media sites that expressly engages co-workers or seeks to promote group action with respect to an issue related to terms and conditions of employment will be protected.
  • An individual employee’s social media post will likely be protected if it suggests implicitly or explicitly an intention to promote group action or support, particularly if it solicits co-worker comments.
  • An individual employee’s social media post that does not expressly solicit co-worker input but nonetheless generates co-worker comments that grow into a substantive conversation concerning terms and conditions of employment may well be protected.
  • An individual employee’s social media post that is neither directed to co-workers nor engages co-workers, or a post that does not address issues of mutual concern to other employees will likely be treated as an unprotected individual gripe or complaint.
  • Disparaging comments concerning the employer and/or supervisors will be protected, even if they include vulgar or rude language, unless they are so outrageous or offensive as to lose the protection of the NLRA.
  • Discriminatory comments or posts that advocate unlawful action will not be protected.

In applying these guidelines, employers are well advised to consider the NLRB’s renewed emphasis on protecting employee rights to engage in protected concerted activity, as well as its general interest in expanding employee access to digital media and facilitating employee communication.  They should also be mindful of the Acting General Counsel’s aggressive posture in these cases.  Accordingly, before implementing disciplinary action, employers should consult with counsel and carefully weigh the risks of running afoul of the emerging law in this area.

What is the lawful scope of a social media policy?

As in the employee discipline cases, cases involving challenges to employers’ social media policies as overbroad and unlawful restrictions on employee rights under the NLRA have also, thus far, applied well-established legal principles without modification or adaptation to any particular attributes of social media communications: 

  • An employer violates NLRA Section 8(a)(1) through the maintenance of a policy that “reasonably tends to chill” employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 
  • If the policy does not explicitly restrict Section 7 activities, it is unlawful only upon a showing that (1) employees would reasonably construe the language to prohibit protected activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of Section 7 rights.

As in the social media disciplinary cases, the cases involving challenges to social media policies are highly fact-specific.  Examples of unlawful policies addressed in the Acting GC’s Report include:

  • Prohibition against posting pictures that depict the company was unlawfully overbroad because it would prohibit employees from engaging in a protected activity like carrying a picket sign or wearing a t-shirt portraying the company’s logo in connection with a labor dispute.
  • Prohibition in hospital social media policy against communications that compromise privacy, embarrass or defame the hospital or its staff, or damage the goodwill of the hospital was unlawfully overbroad where the policy did not define what the hospital considered to be private or confidential, nor did it contain a disclaimer informing employees that it did not apply to protected Section 7 activity.
  • Prohibition against posting anything that would disclose “inappropriate or sensitive” information about the employer was unlawful in the absence of any definition or guidance as to the nature of the prohibited subjects.
  • Prohibition against using the company name, address or other information in employees’ personal profiles was unlawfully overbroad because it interfered with employees’ ability to find and communicate with their coworkers on-line and was not narrowly drawn to protect a legitimate interest of the employer.
  • Prohibition against revealing personal information regarding co-workers without their consent was unlawfully overbroad and could be reasonably interpreted as restraining employees’ Section 7 right to discuss wages and other terms and conditions of employment.
  • Prohibition against “disrespectful conduct” or “rude or discourteous behavior,” was unlawfully overbroad where the policy did not contain a disclaimer informing employees that it did not apply to protected Section 7 activity.

Two unifying themes emerge from the unlawful policies summarized in the Acting GC’s Report:

  1. They were not narrowly tailored to serving a well-defined, legitimate business need; and
  2. Their broadly worded prohibitions could reasonably be read to restrict employees’ exercise of protected Section 7 rights and they did not disclaim any such unlawful intention. 

Indeed, one of the lawful policies addressed in the Acting GC’s Report aptly illustrated these points.  That policy instructed employees to respond to all media inquiries by (i) replying that that they were not authorized to comment for the employer or did not have the information being sought, (ii) taking the name and number of the media organization, and (iii) relaying the information to the employer’s public affairs office.  The OGC concluded that this policy was lawful because it served the employer’s legitimate business interest of communicating to the media with one voice, and it was not so broadly worded as to lead employees reasonably to think they were prohibited from exercising Section 7 rights to talk to the media on their own behalf about their working conditions.

Employers are well-advised to implement and enforce social media policies.  Whether the workplace is unionized or not, however, such policies must not be so broadly worded as to explicitly or implicitly restrict employees’ right to engage in protected concerted activities or to discourage (or “chill”) employees’ exercise of their rights.  Policies should clearly articulate the legitimate business interests sought to be protected or achieved through the policy, and the restrictions should be narrowly tailored to serve those legitimate interests.  Though disclaimers are not required, and though they do not, in and of themselves, provide an absolute defense, the inclusion of express language disclaiming any intention to restrict employee rights under the NLRA can be helpful to defeat claims that employees may reasonably interpret the policy to restrict their rights.

This is a rapidly evolving area, and with so many cases in the pipeline, the law is sure to continue to develop.  We will keep you posted on those developments.

NLRB General Counsel Allows Discharge for Inappropriate "Tweeting"

Posted by Michael Lebowich on May 17, 2011

tweet1.JPG

Employee use of social media remains at the forefront of issues at the National Labor Relations Board.  Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the Agency), the NLRB’s Division of Advice recently issued an Advice Memorandum stating that an employer did not violate the National Labor Relations Act when it terminated an employee for writing “unprofessional and inappropriate” comments on his personal Twitter account.

In early 2010, a “crime and safety beat” reporter for the Arizona Daily Star began posting a series of controversial tweets on his Twitter account – which he independently operated and controlled although it identified him as a reporter for the Daily Star.  His Tweets commented on both his manager's and his own views of crime (and crime reporting) in Tuscon, including:

  • “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.”
  • “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
  • “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.’”
  • In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”

After the tweet about the paper's copy editors, the reporter was instructed that, even though the Daily Star did not have a formal social media policy, in the future he was “prohibited from airing his grievances or commenting about the Daily Star in any public forum.”  The reporter, however, continued posting controversial tweets - - leading to his suspension and eventual discharge for tweeting insensitively about homicides and in other manners which drew negative attention to the Daily Star.

Although the reporter claimed he was fired for engaging in activity protected by the National Labor Relations Act, the Division of Advice disagreed.  Instead, it decided that the “inappropriate and offensive” Twitter postings were not protected activities, because they “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

In what should be a warning to other employers dealing with social media issues, the Division of Advice did conclude that the paper's initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7.  However, since the statement was only made to a single employee and the Daily Star made its decision to discharge based on the comments unrelated to that statement, it saw no reason to issue a complaint on that issue.

The NLRA and the Non-Union Employer: Proposed Union Rights Poster

Posted by Michael Lebowich on February 01, 2011

Late last year, the National Labor Relations Board announced that it was planning on issuing a new rule that would require all employers (even those that are not currently unionized) to put up a poster detailing all of the rights (including the right to join a union) guaranteed to employees under the National Labor Relations Act.  This was the first proposed use of administrative rule making in more than 20 years, and comes nearly 18 years after the idea was first proposed to the Board by a labor law professor, Professor Charles Morris, in 1993.  The Board's rule making announcement can be found here and the NLRB's fact sheet on the proposed rule is here.

EmployeeRightsPoster11x17_Final.jpgThe Board’s action follows President Obama’s 2009 Executive Order No. 13496, directing the U.S. Department of Labor to require federal contractors to post NLRA rights notices, with the resulting oddity of the Labor Department administering and enforcing the obligation of contractors to post the notices containing rights enforced by the NLRB.

The Board has said that it intends to create a poster that is similar to the one to the right that was created by the Department of Labor.  The full-size poster can be found here.

The public will be given the opportunity to comment on the proposed rule.  A number of issues undoubtedly will invite comments, including whether the Board’s general rule making authority is sufficiently broad to include requiring the posting of the proposed notices; what should be contained in the notice; how the Board will enforce the obligation to post the notices; whether failure to post the notices will constitute an unfair labor practice; how many notices must be posted in a workplace that is multi-lingual; and whether electronic posting will be required?

Employers with concerns about the proposed posting requirement should seriously consider filing comments, which are due on February 22, 2011.  Comments may be submitted, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington, DC 20570.