The National Labor Relations Board (“NLRB”) issued proposed regulations which will likely reduce in half the time to have an election for a union, as we reported on July 13, 2011. On August 30, the NLRB’s Final Rule will be published, forcing companies to tell their employees that they have the right to organize themselves into a union. Although most companies believe that a union cannot happen in their company, warehouse employees, technicians, customer service employees, telephone bank employees and even secretaries have become unionized. Where companies used to wait to campaign against a union until after a union asked the government to hold an election, companies must now campaign before its employees seek out unions and tell the employees that a union is unnecessary and that a union-free environment is more advantageous for them.  

Starting on November 14, 2011, most private-sector employers will be required to post an 11” x 17” notice informing employees of their rights under the National Labor Relations Act (“Act”). These rights include assisting unions in organizing the employees and engaging in concerted, protected activity on behalf of coworkers. As we previously reported on June 1, 2010, the Obama Administration required all federal contractors to post a similar notice. On January 18, 2011, we reported that the NLRB was expanding this requirement when it filed a notice of proposed rulemaking. After receiving over 6,000 public comments, the NLRB has now issued its Final Rule.  

Only those employers subject to the Act must comply; but these include almost all privately-owned companies, except agricultural, railroad and airline employers and those employers whose annual revenues are lower than the jurisdictional limits of the NLRB. The notices will be available starting on November 1, 2011 from the NLRB’s webpage and they must be posted physically and electronically like other personnel policies. If at least 20 percent of the employees are not proficient in English, the notice must be posted in the foreign language they speak. The NLRB will find an unfair labor practice (“ULP”) for failing to post the notice, may extend the sixmonth statute of limitations for those employees and unions who want to file a ULP against an employer who has not posted the notice and may find the employer’s knowing failure to post evidence of an unlawful motivation if, for example, an employee is discharged.

Although federal and state agencies require employers to post a number of posters, this poster has clear implications employers must address. Rather than waiting for a union to start organizing its employees and beginning a pro-union campaign, employers must respond to the posting, because employees will be reading it and asking important questions, especially to their first-level supervisors. They need, first, to understand the implications of unionization for the employer and themselves as supervisors and, second, to be trained on how to respond to employee questions. A supervisor’s negative comments about the employer or a neutral response to a question could lead employees to believe that a union is necessary and not opposed. Instead, employers can start utilizing the many tools in Masuda Funai’s “Union-Safe Tool Kit.”