Happy Holidays from the NLRB—Now Post This

By Karen G. Schanfield and Richard A. Ross | January 25, 2011

Running a biomass business is hard work these days, between managing your feedstock and off-take, dealing with environmental issues and worrying about financing. But, now, thanks to an unexpected holiday gift from the National Labor Relations Board, you may get to post information on helping your work force unionize. 

On Dec. 22, the NLRB issued proposed regulations requiring employers to post notices informing employees of their rights under the National Labor Relations Act, including the right to form and join labor unions. These proposed regulations are significant both procedurally and substantively and apply to union and nonunion employers. The proposed rule will apply to all private employers within the NLRB jurisdiction. This excludes airlines, railroads and other industries covered by the Railway Labor Act. Other than the traditional "mom and pop" stores, the proposed rules would cover most employers, regardless of the number of employees.

The NLRB has been in existence for 75 years. Only once has the board issued substantive regulations. That was in 1974, when it enacted regulations establishing appropriate bargaining units in the health care industry. Today’s action, coupled with the recent issuance of a memorandum from the board’s Acting General Counsel indicating that the board will be more aggressive in enforcing employee and union rights during organizing campaigns, suggests that the board is likely to take additional steps to facilitate union organizing.

Under the proposed regulations, private employers must post a notice which is “at least 11 inches by 17 inches,” with the color and type size and style as required by the board. The notice must be physically posted “in conspicuous places, including all places where notices to employees are customarily posted.” Employers that have significant numbers of employees who are not proficient in English, will also be required to post the notice in their native language. The posting will be provided by the NLRB.
Recognizing that many employers customarily communicate with their employees electronically (via email, posting on an intranet or Internet site), the proposed regulations also require the use of those methods to provide the notice to the employees. Even more astounding, the proposed regulations would require that the electronic notice include a link to the NLRB’s website. In addition, an employer that has a significant number of employees who are not proficient in English, will be required to provide the electronic notice in their native language (as provided by the board).

Employers who fail to make the required posting either physically or electronically will be subject to sanctions. The proposed sanctions include finding the failure to post as an independent unfair labor practice, tolling the statute of limitations for filing unfair labor practice charges, and using the failure to post as evidence of anti-union animus in unrelated unfair practice charges. Currently, the statute of limitations under the National Labor Relations Act is six months. By “tolling” that period, the statute of limitations would be unlimited in duration.

The NLRB is required to publish the proposed regulations for 60 days to accept comments before they can become permanent regulations. Given the political composition of the board and other actions that the board has recently taken, it is very likely that the final regulations will look similar to the proposed regulations.

Additional information on the regulations can be found at www.nlrb.gov. Employment and labor problems can make life difficult and the NLRB has kindly just added another issue for you to be concerned about in the new year.

Authors: Karen G. Schanfield and Richard A. Ross
Shareholders, Fredrikson & Byron’s Employment & Labor Law Group
kschanfield@fredlaw.com and rross@fredlaw.com