The Labor and Employment Law Blog : Labor & Employment Lawyer & Attorney : Weintraub Genshlea Chediak Tobin & Tobin Law Firm : Sacramento California : Labor & Employment Law Blog

This was all done on the very same day that three appointments to fill NLRB vacancies were made while the U.S. Senate was either “in recess” or “not in recess.” But, that is a story for another day.  

On the last day of his term, Craig Becker (NLRB member) and Mark Gaston Pearce (NLRB Chairman) (both President Obama appointees) issued an opinion in the highly anticipated case of D.R. Horton, Inc. and Michael Cuda. In D.R. Horton, NLRB held that the holding in AT&T Mobility does not apply in the workplace, and that requiring them as a condition of employment is an unfair labor practice in violation of the NLRA. AT&T Mobility, the NLRB reasoned, was a case about consumer class actions, whereas D.R. Horton involves the workplace and substantive rights granted all employees under the National Labor Relations Act. "Furthermore, AT&T Mobility involved a conflict between the FAA and state law, which is governed by the Supremacy Clause, whereas the present case involves the argument that two federal statutes conflict."

According to the NLRB opinion from Becker and Pearce, "Clearly, an individual who files a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7" of the National Labor Relations Act. "Such conduct is not peripheral but central to the act's purposes."

The decision will be reviewable by the Eleventh or D.C. Circuit U.S. Court of Appeals. Employers will have to wait and see what the D.C. Circuit does with this decision. However, until then Employers should be cautious when trying to implement compulsory arbitration agreements that contain a class action waiver.
 

Well on December 23, 2011, the NLRB postponed the implementation date again – to April 30, 2012. The postponement was made at the request of a federal judge in Washington D.C. who is presiding over a pair of lawsuits by the National Association of Manufacturers (“NAM”) and the National Federation of Independent Business (“NFIB”), that challenge the NLRB’s authority to require employers to post the Notice.

We will continue to monitor the legal challenges to the Notice and keep you posted. However, for more information on what the Notice requires of employers, and which employers are required to comply, you can read my November 16, 2011 post.
 

While it is still an open question as to whether any of the pending legal challenges to the rule will block the NLRB from implementing the rule starting January 31, 2012, employers should be aware of what is required under the rule and whether they are obligated to comply.

What is Required to be Posted?

The NLRB has created an 11” x 17” notice that informs employees that the NLRA protects their right to organize a union; form, join, or assist a union; bargain collectively; discuss wages, benefits, and other conditions of employment; raise complaints; strike and picket; or choose not to do any of these activities. The notice also outlines certain conduct by employers and unions that is prohibited by the NLRA and informs employees what to do if they believe their rights have been violated under the NLRA (“Notice”).

Where Can Employers Obtain a Copy of the Notice?

The NLRB says that the easiest way to obtain the Notice is to download it from its website - www.nlrb.gov/poster and print it on a single 11-by-17 paper or two 8-by-11 papers taped together. Free copies of the Notice are also available upon request at any NLRB regional office. Employers who purchase commercially produced comprehensive employment law posters that contain various required notices, will just need to make sure that their new 2012 comprehensive poster includes the new NLRB Notice. 

What Employers are Required to Post?

With some limited exceptions, most private sector employers (union and/or non-union) are likely required to post the new Notice, regardless of size or industry. For the most part the rule exempts just a few industries: agricultural, railroad, airlines, and very small employers that have just a slight effect on interstate commerce (e.g. non-retail employers with annual gross volume of less than $50,000, and retail employers with an annual gross volume of less than $500,000).

Where Should the Notice be Posted?

The Notice should be posted in a conspicuous place, where other workplace rights notices and company notices concerning personnel rules or policies are customarily posted. Reasonable steps should be taken to ensure the Notice is not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Employers with remote worksites should post the Notice at those locations to ensure that all employees are notified of their rights.  Employers with operations both within and outside the U.S. are required to post notices at workplaces in the U.S. and its territories, but not at any workplaces in foreign countries. Employers who typically post personnel rules and policies on an internet or intranet site should also post the Notice of NLRA rights there, in addition to a physical posting. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Are there any Penalties for Non-Compliance?

The NLRB cannot penalize employers merely for failing to post the new Notice. However, whether the employer did or did not post the new Notice will likely be considered by the NLRB in any unfair labor practices case. Therefore, failure to post the Notice could have negative consequences for an employer who is otherwise trying to defend against allegations of violations of the NLRA. Moreover, if an employer does not post the Notice, the NLRB may also extend an employee’s six (6) month statute of limitations for filing an unfair labor practices claim against an employer.

Recommendations.

Unless and until either the courts or new legislation declares that the NLRB does not have the authority to require employers to post the new Notice, all employers subject to the NLRB’s jurisdiction are well advised to comply with the new rule and post the Notice by January 31, 2012 so as to avoid any potential exposure related to non-compliance.