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Alert: President Obama’s Labor Board Takes Actions

The pro-union members of President Obama’s National Labor Relations Board have made no secret of their desire to make it easier, and more likely, for employees to bring unions to their workplaces. This article highlights two recent NLRB actions, and provides employers with some practical advice.

The NLRB’s “Employee Rights” Notice Must Be Posted by April 30, 2012

Barring a last minute court decision, by April 30, 2012 virtually all employers will be required to post the NLRB’s “Employee Rights” Notice. The Notice, available at nlrb.gov, must be 11 x 17 inches and posted wherever employee notices are posted and/or electronically on an intranet if that is how a company communicates with its employees. Even though the National Labor Relations Act has existed for over 75 years without such a notice, the NLRB insists that this is a “neutral” communication that will “provide American workers with meaningful awareness of their rights and protections under federal labor law.” Be forewarned: this Notice is not “neutral.” All executives and HR professionals need to make the time to read it. For example, the Notice begins with the following language:

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers. . . .

After the introduction, there is an eye-catching series of seven bullet points. The first six bullet points inform employees of their “rights” to organize, act collectively or to “seek help from a union.” Indeed, the first two “rights” listed are as follows:

Under the NLRA, you have the right 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.

It is only in the final bullet point that the Notice states that employees may “choose not to do any of these activities, including joining or remaining a member of a union.”

The Notice also contains a section informing employees of examples of illegal conduct by an employer. It further advises employees that if they believe their rights have been violated, they “should contact the NLRB promptly to protect your rights.” The NLRB includes its website and toll free numbers in bold print.

At a minimum, it is anticipated that the posting of this Notice may result in questions or discussions among your employees. It could also lead to union organizing at your business. If you are an employer who prefers to remain union-free, will you and your management team be ready to respond to questions or actions that may result from the April 30 Notice?

Employers should consider taking the following steps prior to April 30 or as soon as feasible:

(1) Review and update with counsel any workplace policies such as union-free management, solicitation and distribution rules, and e-mail or social media use.

(2) Educate your executives and managers as to the reason your company prefers to be union-free, and train them as to appropriate and lawful responses to any questions or activities related to unions or the Notice.

(3) Assess whether there are any issues, changes or concerns within the workforce that could lead some employees to believe they may be better off with a union.

(4) Ensure that management has an effective communications protocol in place in the event there is any suspected union activity or unusual conduct among employees.

(5) Analyze the nature of your workforce which should include an understanding of which employees are supervisors under the NLRA.

The NLRB’s “Quick Election” Rules Are Also Set to Take Effect April 30, 2012

On April 30, 2012, the Labor Board will also implement new changes to rules governing union elections. These changes have been referred to as the “Quick Election Rules.” While the NLRB’s final changes do not contain the more controversial proposals sought by the Labor Board last summer, the new rules are nevertheless problematic for employers.

While there are always aberrations, the current union election process has worked well for decades. You may be surprised to learn that unions currently prevail in almost 65% of all elections. Nevertheless, by claiming that it seeks to “modernize and streamline” the election process, the Labor Board has made it clear that it seeks to shorten the time from a union’s filing of a petition for an election to the election itself. As employers will have less time to educate employees as to the facts, this will inevitably lead to more union organizing.

In addition, it would not be surprising if the Labor Board proposes new election rules later this year (or if President Obama is reelected). Employers should stay informed.

Conclusion

As you recall, labor unions and their advocates were unable to obtain passage of the so-called “Employee Free Choice Act” (the card check bill) that took center stage in 2008 and 2009. What they could not achieve legislatively, they are now doing through an activist NLRB.

Employers who wish to remain union-free must be aware of the current landscape. Be prepared to take steps that are proactive and lawful.

Todd Leeson is the Chair of the Labor Law Section of Gentry Locke in Roanoke, Virginia. He can be reached at leeson@gentrylocke.com.

Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.

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