Labor Relations Insight by Phil Wilson: Notice Posting FAQs

by | Mar 8, 2012 | Labor Relations Ink

The Bradford Pears are in full bloom and about every other trip from my house these days is to a drug store. It must be spring. Speaking of things that make me sick, it’s been a mercifully mild winter in Washington DC too. That was probably planned so we could fully enjoy the Republican primaries, which are beginning to make me wish that the NLRB was in charge of those elections too. They certainly could use some streamlining. While things are popping up all over my yard, so too are things popping on the labor front. Last week The District Court of Washington DC ruled that the NLRB could require employers to post its notice of (some) rights under the NLRA, but could not adopt two enforcement provisions. Instead, the Board must treat enforcement of the notice posting requirement the way it has to treat other issues it oversees – on a case-by-case basis. This decision has led to a number of questions from clients and friends. I thought I’d answer those here: Question: It looks like to me that there is no real enforcement provision. What is the penalty now if I don’t post the notice? Failure to post can be found to be an unfair labor practice by the NLRB. The district court ruled that these cases, like other unfair labor practice cases, must be considered case-by-case. In other words, not posting by itself is not automatically a violation of the Act. The Board must look at all the circumstances and determine whether, based on the facts, the employer interfered with, restrained or coerced employees in their exercise of rights under the Act. Question: Do I still have to post? Employers are still required to post the notice, and I advise everyone to post. It is true that the odds of getting an unfair labor practice upheld under this framework are lower. After all, the NLRB now must not only prove that you didn’t post the notice, but also that your failure to post actually interfered with the exercise of rights under the Act. But there is still a risk, and it is especially a risk for any company that actually faces organizing activity. The better question to ask is why not post? At the end of the day the posting probably won’t be read by anyone. If the principle of posting a one-sided explanation of the Act bothers you, you can always post a counter notice that gives employees “the rest of the story.” Question: When do I have to post the notice? The notice posting requirement is set to go into effect on April 30, 2012. It is likely that both sides of this case will appeal the District Court ruling. There is a possibility that the parties (the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, National Federation of Independent Businesses among other Amici) will ask for another injunction to prevent the rule from going into effect while it is on appeal. At this point you should definitely be ready to comply on April 30. We will obviously alert our readers if there is any change in that date. Question: What else should I be doing to prepare for the posting rule? Like all of these regulatory changes, the most important thing you can do is work diligently at creating a positive work environment at your company. The bottom line is that no matter what the government does to try to bail out unions, if your employees don’t see the need for a union you won’t really be impacted by these rules. Other than that, keep an eye out for additional changes (Chairman Pearce has already promised additional rulemaking this year). We will keep you up to date there. Also, if you aren’t already a member of the industry groups that are actively fighting these rules (those listed above, plus the U.S. Chamber of Commerce, SHRM, and your own industry trade groups) consider joining up – these groups are the “tip of the spear” in the fight against the overreaches of the agencies. Let us know if you have any other questions about any of these new rules.

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