December 30, 2010

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Happy Holidays From the NLRB!

The National Labor Relations Board ("Board") has not forgotten about employers during this holiday season. Rather, the December 22, 2010 edition of the Federal Register includes a special "gift" to employers - a Notice of Proposed Rulemaking ("NPRM") governing notification of employee rights under the National Labor Relations Act ("NLRA"). If nothing else, the NPRM puts an end to the speculation swirling over whether, when, and in what area the Obama Board would initiate rulemaking to effect policy changes [see New NLRA Notice Posting Requirement Takes Effect June 21, 2010].

Because the Board believes that many employees protected by the NLRA are ignorant of their rights under the statute, the stated purpose of the proposed rule is "to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions." To achieve that goal, the proposed rule would require most employers, including most non-union employers, to educate employees about their right to organize and bargain collectively by posting a notice in their workplace alongside the various other posters concerning safety, wage and hour, and anti-discrimination.

The proposed notice is similar in form and content to the one finalized earlier this year by the U.S. Department of Labor for federal government contractors. However, unlike other workplace notices, in addition to the 11 x 17 inch paper poster, employers would also be required to distribute the notice electronically, such as by e-mail, posting on an intranet or internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means. Employers could choose to either download and "prominently" post the notice electronically, or to provide a link to the Board's Web site that contains the full text of the required employee notice.

In support of the electronic distribution requirement, the proposed rule cites J. Picini Flooring, wherein the Board recently changed its standard notice-posting remedy to require employers found to have violated the NLRA to distribute remedial notices electronically in addition to the traditional posting of a paper notice on a bulletin board. Given the increasing prevalence of electronic communications at and away from the workplace, the Board reasoned that notices posted on traditional bulletin boards may be inadequate to reach employees who are accustomed to receiving important information from their employer electronically and do not typically look at information on a traditional bulletin board. Furthermore, the growth of telecommuting and the decentralization of workplaces permitted by new technologies mean that an increasing number of employees would never even see a paper notice posted at the employer's facility. Accordingly, by requiring electronic distribution, the Board is attempting to adapt its rules and policies to reflect the modern work environment.

The Board rejected voluntary compliance as a possibility, and proposed serious potential consequences for employers who fail or refuse to post the required notices. The Board's proposal would treat a failure to post the notice as an unfair labor practice. Such a failure would also warrant tolling of the six month statute of limitations period for any unfair labor practice charge against a noncompliant employer. Finally, an employer's willful failure to post the notice could be considered as evidence of unlawful motive in an unfair labor practice case involving other alleged NLRA violations.

Members of the public may submit comments on the proposed rule, including comments on whether the Board has the power under the Act to create the proposed rule, for 60 days, until February 22, 2011.

If you have any questions about how to remain in compliance with the NLRA and the NLRB, please contact Ellen Joy Glass at (602) 440-4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Group.

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