In a move that stands to affect motor carriers, the National Labor Relations Board (the “Board”), on December 22, 2010, published a Notice of Proposed Rulemaking (the “Notice”) in the Federal Register relating to employer obligations under the National Labor Relations Act (the “Act”). The Notice is the fulfillment of the Board’s recent promise to effect policy through rulemaking rather than by statute. The Board issued the proposed rule because the Board believes employees are unaware of their rights under the 75 year old Act.
Under the proposed rule, private-sector employers (including motor carriers but excluding airline and railroad employers) must post a notice of employee rights, including the right to:
- Organize a union to negotiate wages, hours, and other terms of employment.
- Form, join or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract with the employer setting wages, benefits, hours, and other working conditions.
- Discuss terms of employment or union organizing with co-workers or a union.
- Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.
- Strike and picket, depending on the purpose or means of the strike or the picketing.
- Choose not to do these activities, including joining or remaining a member of a union.
The notice of employee rights would also expressly inform employees that it is illegal for the employer to:
- Prohibit soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
- Question employees about their union support or activities in a manner that discourages employees from engaging in that activity.
- Fire, demote, or transfer employees, or reduce hours, change shifts, or otherwise take adverse action, or threaten to take any of these actions, because employees join or support a union, or because employees engage in concerted activity for mutual aid and protection, or because employees choose not to engage in any such activity.
- Threaten to close the workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
- Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so.
To the extent an employer’s workforce is mobile or remote, and the employer regularly communicates with employees electronically, the above notice must be communicated in the same way. Currently, only federal contractors are required to post a notice similar to the notice proposed by the Board. The Board has asked for comments on the proposed rule before the Board finalizes the rule, including comments on whether the Board has the power under the Act to create the proposed rule at all. Comments, however, must be submitted within 60 days.