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Labor & Employment Law Alert: Developments at the National Labor Relations Board (NLRB)

September 9, 2011

 This Client Alert updates our previous Client Alerts on developments at the National Labor Relations Board (NLRB). We will discuss these and other labor-related developments at our upcoming Annual Labor & Employment Seminar on October 20, 2011.

The NLRB recently (1) issued a final rule requiring most private employers to post notices informing employees of their collective bargaining rights under the National Labor Relations Act (the Act) and (2) proposed a new rule that would significantly alter the union election process. These developments affect both unionized and nonunionized employers.

NLRB Issues Final Rule on Posting Notices

On August 30, the NLRB issued a final rule requiring that private employers covered under the Act (whether unionized or not) post an employee rights notice on or before November 14, 2011. The 11-by-17 inch poster advises employees of their rights under the Act, including the right to act in concert to improve wages and working conditions; to form, join, or assist a union; to bargain collectively with their employer and to refuse to participate in any of these activities. The notice also contains examples of unlawful conduct by employers or unions and advises employees on how to file complaints under the Act. The poster will become available by November 1, 2011 at the NLRB website (www.nlrb.gov) or by contacting the NLRB.

Employers must post the notice where other required workplace notices (e.g., FLSA, EEO and FMLA posters) are typically posted. In addition, if employers normally post notices to employees electronically, they must do so for the employee rights notice as well. Finally, if more than 20% of a covered workforce is not proficient in English, the employer must post a translated version (in the language in which the affected employees are proficient) along with the English version of the notice. The NLRB will provide translated versions of the notice.

Employers’ failure to abide by this rule may be treated as an unfair labor practice under the Act. Employers should be prepared to get the notice when it becomes available and to post it no later than November 14. 

NLRB Proposes New Rules on Union Election Procedures 

In June 2011, the NLRB proposed new rules that would significantly alter the process by which secret ballot elections are conducted to determine whether employees want to be represented by a union. The NLRB held a public hearing on the issue in July and a 60 day written comment period.

The NLRB has stated that the intent of the new rules is to streamline and modernize the election process and to reduce litigation. However, one of the most significant practical effects of the new rules would be to considerably shorten the timeframe of the election process, thereby reducing the amount of time employers have to mount a meaningful campaign against unionization. To put this in perspective, the average amount of time between the filing of a petition and the actual balloting is currently 57 days. Commentators suggest that under the new rules, this time period would be reduced to 10-20 days.

In addition, the new rules will (1) change the process of determining which employees are eligible to vote, (2) require employers to provide unions more private information on affected employees and (3) defer adjudication of many election-related disputes until after the election takes place.

Although the new rules have not yet been implemented, it is important that employers become familiar with the new process in order to respond effectively should they be faced with a representation case.