Since its inception, the Obama administration has launched union- and employee-friendly initiatives, including several failed attempts to pass the infamous Employee Free Choice Act in an effort to slant the playing field toward unions and employees. Such efforts have often threatened devastating consequences for employers. Perhaps sensing the powerful resistance to the re-invigorated labor movement posed by employers, the National Labor Relations Board (“NRLB") has joined the fight, promulgating a new rule that requires private employers to inform their employees of their right to form and support a union. Employers must comply with the new rule by Nov. 14, 2011. Failure to post the notice is itself a new unfair labor practice and can also make it more difficult for an employer to defend against other unfair labor practice charges.

New Rule Encourages Employees to Exercise Their Right to Unionize

Under the new rule, employers subject to the National Labor Relations Act (“NLRA"), which covers virtually every private employer, are required to post an 11-by-17-inch notice to employees describing their rights under the NLRA (the “Notice"). The detailed Notice explains to employees their right under the NLRA to “organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity." The Notice also provides a comprehensive list of conduct by employers and unions prohibited by the NLRA. Additionally, the Notice warns that “If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights . . . ." It also promises that “The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law."

In addition to physically posting the Notice, employers that regularly communicate notices to employees through their Internet or intranet pages must also publish the Notice to employees through those means. Employers whose workforce includes 20 percent or more workers who are not proficient in English and speak another language must also publish the Notice in the employees’ language. If the 20 percent of employees who are not proficient in English speak multiple languages, employers must publish the Notice in all of the languages or in the language spoken by a majority of these employees, while providing copies to the remaining employees in their respective languages. Fortunately, employers will be able to order the requisite Notice form from the NLRB or download and print the form directly from the NLRB’s Web site.

The Notice and extensive posting requirements essentially encourage and empower employees to take action in defense of their right to form and support a union.

Failure to Post New Notice May Spell Unfair Labor Practice Loss for Employers

The new rule is unprecedented in that it significantly expands the NLRB’s role from that of an agency that steps in only to adjudicate unlawful conduct, to that of an agency that monitors employers – even when there is no unlawful conduct to remedy. Moreover, the new rule implements as standard practice the posting of notices informing employees of their rights under the NLRA, a practice normally employed as a sanction to remedy unfair labor practices charges. Nevertheless, perhaps the most controversial aspect of the new rule is what happens to employers that fail to comply with its mandates. The new rule threatens three distinct forms of reprisal for employers that do not timely comply with its posting requirements.

First, the new rule makes it an independent, actionable unfair labor practice for an employer to fail to comply with its posting requirements. The new unfair labor practice falls under Section 8(a)(1) of the NLRA, which makes it unlawful for an employer to “interfere with, restrain or coerce employees" in the exercise of their rights under the NLRA. The NLRB will subject an employer that fails to make the requisite postings under the new rule to the same sanctions generally available in unfair labor practice charge proceedings, which includes seeking a cease and desist order as well as unspecified “additional remedies."

Second, the new rule authorizes the NLRB to make an untimely unfair labor practice charge timely when the employer has failed to post the requisite notice.  Section 10(b) of the NLRA generally precludes issuance of an unfair labor practice complaint based on conduct occurring more than six months prior to the filing and service of an administrative charge with the agency. The new rule allows the NLRB to prosecute such untimely charges as an additional sanction to employers that fail to comply with the posting requirements.

Third, the new rule encourages the NLRB to consider an employer’s knowing and willful refusal to comply with the posting requirement to be evidence of unlawful anti-union animus in adjudicating unfair labor practice charges. Certain unfair labor practices require the complainant to establish the employer’s unlawful animus or anti-union motive. For example, an employee who files an unfair labor practice charge alleging that he was terminated because of his union activity would have to establish the employer’s unlawful motive (e.g., conduct by the employer demonstrating union animus). Under the new rule, an employer that fails to comply with the posting requirements and is subject to an unfair labor practice charge may be found to have violated the NLRA, even in the absence of evidence showing union animus. In other words, to the NLRB, the mere failure to post the Notice is itself evidence of an unlawful motive, even when there is no other evidence of animus.

These three sanctions can significantly impact employers in their workplace and in NLRB proceedings. Moreover, the severity of these sanctions adds teeth to the new rule, making it clear that the NLRB wants employees to be informed of their rights to join and support unions and will undoubtedly sanction employers harshly for failing to comply with its notice posting requirements.

Complying with the New Rule while Maintaining a Union-Free Philosophy

The NLRB received more than 7,000 comments to the proposed version of the new rule, the majority of which opposed the rule. Indeed, employers heavily protested the proposed version of the new rule, arguing that it was unnecessary due to the lack of evidence establishing a real need for notice posting and that, by enacting the new rule, the NLRB was exceeding its statutory authority. Despite these and many other protests, the new rule has been promulgated and employers must act fast to comply. Employers must post the new Notice by Nov. 14, 2011, and must distribute the Notice in the various languages spoken by its workforce and through any electronic means regularly used for communicating government notices to employees.

Because the new Notice will likely result in increased union organizing activity, employers should take this opportunity to ensure their non-solicitation, non-distribution and other union-related policies are up-to-date and NLRA compliant. Employers should also ensure that their general employment policies, including their non-discrimination, anti-harassment, Internet and social media use, and other employment policies are current and lawful. Further, employers should invest time in re-training Human Resources and management-level employees to make sure they are familiar with the NLRA, other key employment laws and the employer’s various employment policies. This re-training is invaluable in helping Human Resources and management-level employees tackle difficult questions from what will almost certainly be a more challenging workforce. Regardless of whether an employer has already developed and/or communicated its stance on union representation to its employees, this is a good time to revisit its position and solidify its strategy for dealing with organizing drives, concerted employee activity and other issues that might crop up more frequently as a result of the new rule. Employers should communicate with employees now and often to reinforce employees’ right to oppose unionization. Employers should also continue to identify, reduce and eliminate the root causes of employee dissatisfaction that increase the likelihood of a successful union organizing drive.

The NLRB’s new rule makes one thing clear: Employees will now be more informed than ever about their rights under the NLRA. Employers must act now to not only comply with the new rule, but to also prepare their workplace for increased union activity and to offset the potential impact of the new Notice.