“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” 

The NLRB recently announced that more than 5% of their cases involve non-union concerted activity.  So what is this protected, concerted activity?  Well, the NLRB launched a new, interactive website earlier this week to highlight recent cases providing examples of such protected activity.  Employers can view the website here. 

In proposing the new rule, Board Chairman Mark Gaston Pearce explained that the amendments were not likely to impact the majority of NLRB-supervised elections as: “about 90 percent [of NLRB-supervised elections] are held by agreement of the parties…[and t]he amendments…would not affect those agreed-to elections.”

Under the new rule, which seeks to reduce unnecessary litigation and enable expeditious resolution of questions concerning representation, the Board: 

• Focused pre-election hearings on only those issues relevant to determining if there is a question concerning representation;
• Provided hearing officers with the authority to limit the presentation of evidence;
• Provided hearing officers with discretion on whether to allow for post-hearing briefs after pre-election hearings;
• Eliminated pre-election appeals to the Board and consolidating appeals into a single, post-election review request;
• Made Board review of post-election regional determinations discretionary;
• Eliminated duplicative regulations;
• Eliminated the practice of not scheduling an election for approximately 25 days after a decision and direction.

Although the new rule does not specify how soon a pre-election hearing should be held, most Regions issue the Notice of Representation Hearing on the day the petition is filed and schedule the initial hearing for 7-10 days thereafter. Thus, employers are likely to only have a seven-day window under the new rule in which to prepare for a pre-election hearing once they have received notice. Opponents of the rule point to the increase in union control over the timing of election hearings and their ability to “ambush” the employer’s ability to educate their employees about the disadvantages of unionization.

With the new rule in effect, employers should take immediate steps to increase awareness of workplace grievances and employee unrest, both of which could result in a union organizing campaign, and to make sure that they are adequately training supervisors on how to lawfully respond once an organizing campaign has been initiated. In addition, employers are advised to take a second look at wage rates, benefits packages and employment policies to ensure that they are both fair and competitive. 

For more detailed information, the Acting General Counsel issued a guidance memorandum [pdf] on April 26, 2012 explaining how Regions should implement the new rule. Likewise, the General Counsel’s office has issued a set of Frequently Asked Questions, which provide a quick and easy explanation of the revised rule and the procedures for its implementation. 

The District Court in South Carolina ruled [pdf] that, although the rule might be useful, the NLRB exceeded its rulemaking authority when it failed to show that the proposed rule was “necessary” to carry out any provision of the NLRA.  Moreover, the Court was not persuaded that the NLRA’s silence regarding a notice posting requirement was a statutory “gap” that permitted the NLRB to promulgate a rule.

Then, the D.C. Circuit today granted a temporary injunction pending the appeal of a prior district court ruling in which the U.S. District Court for the District of Columbia upheld the NLRB’s authority to promulgate the rule, which prohibits the rule from going into effect. 

As a result, employers will not be required to post the required notice by April 30.  We will continue to closely monitor this situation as these developments are occurring rapidly. You may also review prior blog entries on this topic [here].    

However, the Court also held that the NLRB exceeded its authority by promulgating the portion of the rule that automatically deems a failure to post to be an unfair labor practice and a provision that would toll the statute of limitations in unfair labor practice actions against employers who have failed to post.

The NAM is considering appealing the Court’s ruling.  Unless the decision is stayed or reversed on appeal, employers should plan on complying with the posting requirement on or before April 30. Posters are available for download on the NLRB website or at no charge in hard copy from NLRB regional offices.  A fact sheet regarding the posting is currently available.

Given the current political climate, President Obama is receiving sharp criticism about appointing the members during the Senate’s holiday recess.  Legal challenges have been threatened regarding President Obama’s tactic.  If the appointments stand, the Board will consist of three democrats and two republicans.  And unfortunately, there is no definitive signal as to how these recent appointments will rule on matters during their respective terms.  Until the first decisions are made (especially review of likely appeals of controversial issues like the one reported here), employers and labor attorneys will be anxiously waiting.

Note: The National Labor Relations Board (“NLRB”) is governed by a five-person board and a General Counsel who are all appointed by the President with the consent of the Senate.  Each board member serves a five-year term while the General Counsel is appointed to a four-year term.

The Board granted the recent postponement in order to facilitate the resolution of current legal challenges, effectively giving businesses three more months before they have to comply. As previously reported, most private sector employers will be required to post the 11-by-17-inch notice, which is intended to inform all employees of their Federal labor rights, by the new implementation date. The notice is available at no cost from the NLRB through its website, http://www.nlrb.gov, which has additional information on posting requirements.

For now, employers should prepare to comply with the notice-posting rule by the April 30, 2012 effective date. We will continue to monitor the litigation surrounding the notice-posting rule and will keep you apprised of any future developments.

Although Governor Kasich expressed that he respects the voice of the voters, it appears that unions will likely attempt to turn this win into a catalyst to stir up more union activity.   For employers, this means keeping a pulse on what is happening in the workplace.  As previously discussed here, there never is a time to discount the possibility of union activity.  As a result, employers should be prepared to react to potential unionization and have a strategy in place before the petition for certification is filed. 

 Will the new posting requirements, as previously reported here, go away completely?

Probably not.  Although the NLRB extended the deadline, particularly to give medium and small businesses extra time for employee education and implementation, the posting requirement isn't likely to be abandoned.   Most private sector employers will be required to post the 11-by-17-inch notice, available from the NLRB through its website.

Although several businesses have challenged the new posting requirements through court actions, no court (to date) has ruled that the posting requirements are unlawful.  Now that the posting deadlines have been extended, these cases will be watched closely in the coming months.  

This new NLRB rule has drawn some heat from employer friendly organizations who call the new rule “punitive;” however, union friendly organizations view the rule as a much needed step to make sure employees are apprised of their rights. The NLRB noted that the rule is aimed at protecting an employees understanding of their right to unionize, which is in jeopardy due to a recent decline in union membership.

So what will be required? 

Every employer covered under the NLRA will be required to post an 11 by 17 inch poster “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” For example, if an employer posts personnel rules on the internet or on a company intranet, the notice must also be posted there.

Employers with 20% of their workforce that are not proficient in English must also post a notice in the appropriate language, which will be provided by the NLRB. All posters will be available for download on the NLRB website by November 1, 2011 or at no charge in hard copy from NLRB regional offices.  A fact sheet regarding the posting is currently available.

Although there are no fines for not posting the required notice, the posting consequences can be substantial. For example, failure to post the notice will be considered an unfair labor practice under NLRA Section 8(a)(1); a willful failure to post the notice may be considered evidence of improper motivation for other acts alleged to be unfair labor practices; and in appropriate situations the NLRB may extend the statute of limitations for the filing of other unfair labor practices where an employer fails to comply with the new posting obligations.

On May 26, in a case remanded to it from the DC Circuit Court of Appeals, the National Labor Relations Board held it’s free speech.  The Board found that the defining characteristic of an unlawful picket is the “coercion” and “confrontation” it seeks to place upon a consumer. The mere exercise of free speech, on the other hand, is not coercive. By a 3-1 majority, the Board proceeded to explain its view that rat balloons were not coercive, but merely symbolic speech. The opinion of the Democrat-controlled Board was not unexpected, following in the wake of similar cases decided recently on the issue. The vigorous dissent argued that while the balloon might appear innocuous or even comical from afar, to the pedestrian on the ground, the giant balloon, accompanied by the presence of union agents, would surely be confrontational. (The case, Sheet Metal Workers Local 15 (Brandon Region Medical Center), is available on the NLRB website.)

Nothing against our red-eyed little friends - we firmly believe The Rats of NIMH will remain an enduring classic of children’s literature - but the presence of “the rat” can mean major headaches on a jobsite. Labor disputes and the delay and litigation that often follow in their wake can be very costly if not handled correctly.

If you’re watching the stand off in Wisconsin or the emerging labor struggles in Ohio and Indiana, it appears that state government workers – and the unions that represent them -- might not be in the driver’s seat going forward.  In fact, they might not even get a seat at the table.  And if you’re a private sector employer watching these disputes, you might be wondering, Does this mean we can write off the unions altogether?

As a lawyer who represents management in labor organizing campaigns, I’m advising my clients not to become over confident.  Sit tight for the moment.  The National Labor Relations Act – governing private sector employees – is alive and well.  And only time will tell us if the state government disputes are isolated incidents of political rhetoric or the beginning of a sweeping change in the labor movement.

For now, employers should take a hard look at what’s in front of them – their own workforces.  Experience shows us (and the research confirms) that employees turn to unions over issues like respect, communication, and management relations – things we can fix.  Some of these issues don’t even cost money.

So, if you’re watching the labor disputes with interest, make sure you don’t forget to watch the labor issues that aren’t making the headlines.  It’s usually when we least expect it that employees turn to a union.  (And it might be time to implement that supervisor training you just couldn’t find the time or budget for last year.)