When asked, many human resource professionals say that their companies are not vulnerable to a union drive. Their answers may now change.
On December 21, 2010, the National Labor Relations Board ("NLRB") filed a Notice of Proposed Rulemaking in the Federal Register. The NLRB wants all companies within its jurisdiction to post a notice similar to notices required to be posted by other federal and state employment law agencies. This is because a union only needs two employees in one company to organize a union. Unlike other notices, the NLRB's notice will inform employees of their rights to organize a union, strike, picket and take other concerted activity.
The Rule will go into effect after the end of a 60-day comment period. Unless the NLRB changes the Proposed Rule, the Final Rule will require companies to physically post the notice in multiple languages and also post the notice electronically. An employee has only 180 days to file a case against a company. If a company fails to post the notice, unlike other postings, the NLRB will toll the statute of limitations. This could result in the time period for employee claims continuing indefinitely until the company posts the notice. The NLRB may also allege in its prosecutions that the mere failure to post this notice is evidence of the company's intent to engage in unlawful activity.
By spring, the conversations will start. Employees will ask their supervisors about unions. The supervisors may agree with the employees they supervise that a union may help the employees. Employees may be encouraged to complain in groups about their working conditions. Human resource professionals will need to know how to respond.
To prepare for the posting requirement, companies need to begin or continue to implement a union-free plan. The plan helps companies prepare for the discussions which will take place in the workplace between employees and their supervisors. As part of the plan, companies are considering counter-postings to give correct and full information to employees about their rights, the company's rights and the truth about unions and negotiations. Other companies are providing training to their supervisors, including specific provisions in employee handbooks to respond to potential union organizing, and taking steps to be prepared for the conversations and possible union organizing campaigns. Importantly, human resource professionals know that actions taken after a union organizing campaign begins may violate the law, because the action was taken because of the union.
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