As expected, the NLRB has moved forward with initiatives that seem designed to make it easier for unions to successfully organize. The most controversial aspects of the proposed Employee Free Choice Act, including card-check recognition and mandatory arbitration in bargaining, seem to be dead in the water. But a union-friendly NLRB is pursuing initiatives administratively that will facilitate union organizing.
Rule Making to Require Posting About Organizing Rights
The NLRB recently issued a Notice of Proposed Rule Making which would require all employers to post notices in the workplace advising employees of their rights to engage in union organizing. The notice would have to be posted prominently in the workplace and employers that communicate electronically with employees would be required to include the posting in an electronic communication The proposed mandatory organizing poster is very similar to one that is required for federal contractors and subcontractors. It gives a comprehensive explanation of employee rights to organize and restrictions on employer responses to organizing.
A copy of the NLRB news release about the proposed rule, together with links to the Notice of Proposed Rule Making, which includes the full text of the proposed posting, and additional information, can be found here.
The prospect of a mandatory prominent notice about union organizing in the workplace is good cause for every employer to evaluate its overall plan for response to possible union activity.
General Counsel Memo About Extraordinary Remedies During Union Organizing
When union organizing does occur an employer has the right to communicate its position about union organizing and to continue to run its business appropriately. However, an employer does not have the right to engage in improper interference with employee organizing. Sometimes in the middle of an organizing campaign and before the election happens an employer is accused of discriminatory treatment such as a discriminatory discharge or other illegal conduct. Of course, the employer has the right to make its defense and often the legal dispute is not resolved until after the election occurs. In some cases, the NLRB goes to federal court and asks for an injunction to get some sort of temporary relief before the election occurs. The idea is that some kinds of employer illegal conduct could have a damaging effect on the rights of the employees to exercise their free choice in the election and that some sort of interim relief may be necessary to offset that potential damaging effect.
Earlier this year the top attorney for the NLRB (the General Counsel) issued a directive to all NLRB regional offices stating that any time any employee is discharged during organizing and a charge is filed claiming that the discharge was for anti-union reasons, the NLRB should pursue an injunction requiring that the employee be reinstated to employment until the case has been fully decided by the NLRB. This sort of extraordinary temporary relief, called a 10(j) injunction, in the past has been one pursued only in unusual cases. However, today's NLRB is determined more than ever to deal aggressively with what it considers to be improper employer conduct.
In a memo issued on December 20, 2010 the General Counsel now has directed regions to pursue other kinds of interim relief when a discriminatory discharge is alleged. and the employer is also accused of other kinds of improper conduct during the election campaign, such as interrogating employees, promising benefits or improperly restricting employee communication about the organizing. The remedies that the General Counsel suggests should be pursued are truly extraordinary. For example, the memo suggests that the NLRB ask the federal court to require a top management official, such as the president of a company, to personally read a notice to employees explaining to them their rights to engage in organizing. The theory is that while it is being determined whether the employer violated the law at all, any potential impact on voting employees will be offset if a top management official stands in front of them and reads to them their rights concerning organizing. Similarly, the board suggests that in some cases it might be appropriate to require that outside union organizers have access to employee bulletin boards. The memo goes so far as to suggest that in some cases it might be necessary to request that outside union organizers be granted access to the employer property to conduct meetings with employees.
These are very controversial measures because they would be required before there has been any finding that the employer engaged in any illegal conduct. In fact, the possibility of this sort of interim relief might actually be an inducement to unions to file charges in the hope of getting a significant boost in the organizing effort. Of course, an employer will have the opportunity to argue in federal court against the injunctive relief.