Diserio Martin O'Connor & Castiglioni LLP

Controversial NLRB Rule Being Challenged

February 22, 2012

On August 25, 2011, the National Labor Relations Board ("NLRB") issued a final rule requiring employers covered by the National Labor Relations Act ("NLRA") (virtually all employees) to post a written notice informing employees of their rights under the NLRA. The NLRB has received more than 7,000 comments to the proposed rule, most of which question the ability of the NLRB to enact a rule with such broad implications for so many employers. In issuing the final rule, the NLRB stated that its greatest concern was that, except in very limited circumstances, there is no obligation for employers to inform employees about their rights to unionize.

The notice, which must be posted in a conspicuous place, is available on the NLRB's website. The rule requires employers to notify their employees that under the NLRA employees have the right to organize a union to negotiate with their employer concerning wages, hours and other terms and conditions of employment.  The notice must also inform the employees that they have the right to form, join or assist a union, bargain collectively through a union representative, discuss forming a union with other employees, strike and picket (depending on the purpose or means of the strike or picketing) and take action with other employees to improve working conditions by raising work-related complaints directly with the employer or with a government agency or by seeking help from a union.

The notice must further inform employees that it is illegal for an employer to prohibit them from talking about or soliciting for a union with other employees during non-work time, question an employee about his or her union support in a manner which discourages joining a union, fire, demote, transfer, or take other adverse action against an employee (or threaten these actions) because of the employee's participation in a union, threaten to close the workplace if the workers choose to form a union, spy on or videotape peaceful union activities or promise benefits to discourage union support.

The rule, originally scheduled to go into effect on November 14, 2011, has had its effective date postponed until April 30, 2012. The rule is being challenged in court by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation which have argued that the NLRB has no statutory authority to promulgate such a rule.

In this new environment, it will be crucial for employers, large and small, to understand their newly defined legal obligations in order to ensure a productive workforce and effectively manage their legal risk.  Please contact Scott Centrella, head of our employment litigation group, for more detailed information.

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