By: Jonathan T. Swain
Kristofor L. Hanson

In order to put something under union Christmas trees this year, the National Labor Relations Board (the “Board”) and its Acting General Counsel have taken the initial steps to require both union and non-union employers to post notices of employees’ rights under the National Labor Relations Act (“NLRA”), and to enhance remedies available to employees for unfair labor practices during union organizing campaigns.

Proposed New Rule Requires Employers to Notify Employees of Their Rights Under the NLRA

In an unprecedented exercise of its rule-making authority, the Board has proposed a new rule requiring all employers covered by the NLRA (union and non-union) to post a notice informing employees of their rights under the NLRA. The Board has indicated that its action is intended to increase employees’ knowledge of their rights under the NLRA, while at the same time encourage statutory compliance by employers and unions.

Although notice postings are required under such laws as Title VII of the Civil Rights Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, and the Family and Medical Leave Act, among others, under those laws the posting requirement is statutorily mandated. The NLRA contains no such mandate. Knowing that Congress would be unlikely to amend the NLRA to require such a posting, the Obama-dominated Board has undertaken a regulatory end-around Congress in drafting this proposed rule.

Under the proposed rule, 29 CFR Part 104, which can be accessed here, employers will be required to post a notice in all places where notices are customarily posted containing a summary of employee rights established under the NLRA. The language of the notice must include a detailed description of employee rights, along with examples of conduct that violates the NLRA. The notice will mirror the notice of the Department of Labor’s final rule requiring federal contractors to post notices of employees’ NLRA rights.

The Board is accepting public comments on the proposed rule. Comments must be received by the Board within the next 60 days. We will be providing additional information in a follow-up alert concerning this commenting process.

Memorandum Announces Section 10(j) Remedies for Unfair Labor Practices During Organizing Campaigns

In addition to the newly proposed notice-posting rule, the Board’s Acting General Counsel, Lafe Solomon, has announced an initiative expanding the Board’s efforts to ensure employees access to effective remedies for employers’ unlawful conduct during union organizing campaigns. In Memorandum 11-01, available here, Solomon announced the Board’s effort to expand Section 10(j) injunctive relief to serious unfair labor practices during organizing campaigns, beyond the “hallmark” practices such as discriminatory discharges, and threats of job losses and plant closings.

Under the initiative, the Regional Offices are now directed to seek injunctive remedies against any unlawful employer conduct during organizing campaigns that may accompany discriminatory discharges, such as interrogation and surveillance, unlawful solicitation of grievances, an employer’s promise or grant of benefits, a sudden attentiveness to employees’ previously ignored needs, and any interference with employees’ ability to communicate between themselves and with a union. Proposed remedies for such practices include requiring employers to read notices aloud to employees in addition to posting them, allowing union access to plant bulletin boards, and requiring employers to disclose employee names and addresses to a union.

Employers should be aware of this new initiative and prepare themselves for the likelihood of increased scrutiny of their actions during union organizing campaigns.

If you have any questions about this material, please contact Jonathan Swain or Kristofor Hanson here at Lindner & Marsack, S.C.