The most valuable reward to Organized Labor for its support of the Democratic Party in the past Presidential election did not come in the form of sweeping new labor legislation. In the end, the much publicized Employee Free Choice Act proved to be too tough a sell even for President Obama.
However, as evidenced by a new rule being proposed by the National Labor Relations Board ( the "NLRB" or "Board"), the President was not without other means to show his gratitude.
The National Labor Relations Board ( "NLRB") consists of five members who are nominated by the President. The NLRB functions as a quasi-legislative/quasi-judicial body charged with the responsibility of administering and enforcing the National Labor Relations Act ("NLRA"). As such, the NLRB wields enormous power to affect the rights and responsibilities of employers, employees and unions on a day to day basis.
Because the members of the NLRB are not elected, it is customary for each new President to use his power to nominate prospective members who are politically aligned with the views of the president's major supporters. In the case of President Obama, this process has resulted in a Board dominated by pro union appointees. So it is not surprising that this reconstituted body would waste no time using its authority to do what Congress has thus far been unable to do: make it as easy as possible for unions to organize.
The Board has submitted to the Federal Register a Notice of Proposed Rulemaking that provides for a 60-day comment period. The proposed rule would require employers to notify employees of their rights under the National Labor Relations Act. The proposed Notice provides that "employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities." It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency's regional offices and could also be downloaded from the NLRB website. The Obama Administration has already finalized a similar rule with respect to private sector employers bidding and operating under federal contracts. Therefore, it is likely this new rule will be implemented sometime in early 2011.
This proposed rule is nothing more than an effort to assist union organizing and will almost certainly be labeled as such by major business groups. The claim that the rule is necessary because employees are generally unaware of their right to organize is weak at best. The number of employees unaware of their right to organize in the United States is almost certainly insignificant. More importantly, the proposed rule arguably exceeds the NLRB's rulemaking authority because it effectively creates a new unfair labor practice. For example, in the event that an employer fails to comply with the Notice posting, it is likely that the Board would extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Similarly, if an employer knowingly fails to post the notice, that could be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
It is extremely important that all employers subject to the NLRA and their legal representatives pay close attention to the decisions and rules issued by the Obama Board. We will do our best to keep you fully apprised of those activities.
If you have any questions or would like additional information concerning this bulletin, please contact Bob Murphy or Jim McMullen at (619) 696-6700, or Dan Berkley at (415) 986-5900.