As discussed in previous Client Alerts and newsletters, employers may expect change under the National Labor Relations Board (NLRB) appointed by the current administration. Although recent developments in Congress make it unlikely that the Employee Free Choice Act (EFCA) will be passed any time soon, the NLRB has indicated that it will exercise its power to implement union-friendly rules. These changes will affect almost every private employer nationwide.
The Board recently issued a proposed rule requiring all private employers to post a prominent notice to employees informing them of their rights to organize and to strike and picket and that contains the NLRB’s contact information. The proposed rule also requires that the notice be distributed electronically if the employer customarily communicates with employees by such means. Failure to post the notice will be considered an independent violation of Section 8(a)(1) of the National Labor Relations Act.
The newly appointed General Counsel for the National Labor Relations Board has already implemented new rules encouraging local NLRB offi ces to obtain injunctions requiring “real time” reinstatement of employees terminated during union organizing drives and extending such injunctions to lesser offenses, such as unlawful promises or threats made to employees during campaigns. The General Counsel has also issued guidelines authorizing the NLRB to seek broader remedies on unfair labor practice cases, such as union access to the facility and to company bulletin boards, as well as turning over addresses and phone numbers of employees.
There are indications that the Board is also considering shortening the time between the date of a petition for an election and the election itself. Currently, internal Board rules provide that the period should not exceed 45 days, but it is possible that the Board will reduce that to 14 days. The Board is also looking at implementing electronic voting in elections.
The Board is currently reconsidering some past precedents under the new administration. For example, the Board is already reconsidering standing precedent on (1) use of company-provided e-mail systems to disseminate pro-union information to coworkers, (2) how long a successor employer must continue to recognize the union, and (3) whether a bargaining unit consisting of only certifi ed nursing assistants is appropriate, rather than requiring all nonprofessional employees to be included.
The Board has also dived into the electronic water cooler. In a highly publicized case arising out of Connecticut, the Regional Offi ce has issued a complaint against an ambulance company for its termination of an employee who posted derogatory comments about his supervisor on his Facebook page, which was accessed by coworkers who also posted similarly negative comments. At issue is whether those comments were protected concerted activity. A trial before the administrative law judge is set for early this year.
Employers may expect that 2011 will bring continued changes in the NLRB rules, many of which will assist unions in organizing employees. Although many employers are reluctant to mention “union” to their nonunionized workforce, once the proposed NLRB rule requiring posting of union organizing rights is fi nalized, the word will be out. Many employers are therefore proactively considering positive employee relations communications regarding the subjects of unions and their impact on employees, customers and their businesses.