By: Frank L. Carrabba

As most of you know, on December 22, 2010, the National Labor Relations Board (NLRB) published a proposed rule that would require all covered employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA or Act). The proposed notice is similar to the notice the Department of Labor approved last year that is applicable to Federal contractors. The public comment period on the NLRB rule ended February 22, 2011.

Before we look at the comments pertaining to the rule, let’s review the contents of the proposed rule. The text of the proposed notice would first advise employees of specific rights they have under the NLRA, such as 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.

The proposed notice also informs employees that 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.

The notice also advised employees of potential unfair labor practices that may be committed by their union. They are 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.

Lastly, the notice informs employees that they should contact the NLRB within six months if they feel their rights have been violated. It lists a toll-free telephone number for the NLRB for the employee to report unlawful activity by an employer or a union. The notice also lists the NLRB’s website address for additional information concerning their rights.

The notice would have to be posted in places where workplace notices are typically posted. For employers who communicate with their employees by e-mail or other electronic means, the notice would have to be posted electronically as well.

According to the proposed rule, failure to post the notice would be an unfair labor practice under the NLRA and an employer’s knowing failure to post the notice would be evidence of unlawful motive in NLRB cases that require proof of motivation to prove an unfair labor practice, such as an alleged refusal to hire because of an individual’s union membership or affiliation.

Numerous employers and employer associations commented on the proposed rule. The Coalition for a Democratic Workplace, which includes AGC, furnished comments. First, the Coalition stated that “Congress did not authorize the Board to require a Workplace Notice in the absence of a Representation Petition or Unfair Labor Practice Charge”. Second, the Coalition argued that “[t]he Proposed Rules Conflict with longstanding Board Precedent Concerning Remedial Notices”. Currently, an employer is required to post NLRB notices only when election petitions are filed and unfair labor practices are found. The Coalition’s entire comments can be found at www.myprivateballot.com.

One would expect the NLRB to publish its rule in the not-to-distant future. Most likely there will be litigation if the Board’s final rule approximates the proposed one. Consult your legal counsel for more information on how you should prepare for what is most certainly a significant change in NLRB policy.

FRANK L. CARRABBA

Frank Carrabba has been engaged in the practice of labor and employment law for almost forty (40) years. He represents employers exclusively in all areas of labor and employment law, including alleged employment discrimination, NLRB charges against employers, union organizing campaigns, Davis Bacon Act related issues, alleged wrongful terminations and wage and hour issues.

His first trial resulted in a U.S. Supreme Court decision. He began his career at the NLRB in Washington, D.C. in 1971.

He is board certified in labor and employment law by the Texas Board of Legal Specialization. He has been a member of the Employment Practices Committee of the AGC Houston Chapter for many years and has twice edited the Labor Relations Guide and the Open Shop Field Supervisor’s Handbook for the Chapter.