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NLRB Issues Rule Requiring Employers to Post Notice of Employee Rights Under NLRA

August 25, 2011

On August 25, 2011, the National Labor Relations Board issued a Final Rule that will require virtually all private employers to post a notice that informs employees of their rights under the National Labor Relations Act. In issuing the Final Rule, the NLRB rejected virtually all of the proposals advanced by the employer community that were aimed at making the notice less biased in favor of union organizing.

Posting Requirements

The NLRB issued its Final Rule after the close of a 60-day comment period following the NLRB’s publication of the Proposed Rule. The Final Rule was approved by NLRB Chairman Liebman, and Members Pearce and Becker, with Member Hayes dissenting. The notice approved by the NLRB’s Final Rules will, with very minor changes, be the same notice that the U.S. Department of Labor has adopted for federal contractors.

Employers will be required to post the notice in languages other than English if at least 20% of company employees are not proficient in English and speak another language. The NLRB will provide notices in a number of languages other than English. The notice will have to be posted prominently in areas of the workplace where other notices are posted. Significantly, the NLRB abandoned the position taken in the Proposed Rule that would have required employers to post the notice via email, voice mail, text messages, or other electronic communications that are customarily used to communicate with employees. In a less significant concession, the Final Rule allows the notice to be posted in either black and white or color. It also may be posted on two standard-sized pages taped together in order to reduce cost to small employers who may not immediately have the means to print 11x17-inch pages.

Consequences of Failing to Post the Notice

A failure to post the notice constitutes an unfair labor practice (ULP) (i.e. it will be deemed an interference with, or attempt to restrain or coerce employees, in the exercise of their rights under the NLRA in violation of 8(a)(1)). However, the Board Majority stated in its preamble to the Final Rules that the NLRB will in most cases assume that any failure to post the notice was based on ignorance of the Rule and it anticipates that all ULP charges based on such inadvertent inaction will be closed if and when the employer posts the notice upon a Board agent’s request. Any employer who knowingly fails to post the notice will be issued a cease and desist letter and be required to post the notice and a remedial notice. Significantly, if an employer knowingly fails to post the notice, the usual 6-month statute of limitations that applies to unfair labor practice charges may be extended for any employer ULPs that allegedly occur during the time the notice was not posted. This means that unless the employer can show that the charging party had actual or constructive notice that the alleged employer conduct was unlawful under the NLRA, the charge would not be subject to the normal 6-month statute of limitations.

Employer Input Largely Rejected

Comments submitted by employer interest groups stressed that the proposed notice was biased in favor of unionization. For example, the proposed notice failed to give sufficient information to employees about their rights with regard to opposing unions (such as the right to decertify a union and the right to refrain from funding union political activity by deducting certain amounts from union dues) and the potential adverse consequences of unionization (such as the loss of the right to deal individually with the employer). With modest exception, the Board rejected the employer-proposed changes to the wording of the notice (the exception being that the introduction to the notice will include a clause stating that employees also have the right to refrain from engaging in the activity of organizing, bargaining collectively, and engaging in protected concerted activity). Employer concern that the notice appeared to constitute official endorsement and encouragement of union organizing and collective bargaining was summarily addressed. The Board responded that it made an addition to the introduction about the right of employees to refrain from these activities and opined that the NLRA, by its terms, encourages the practice and procedure of collective bargaining.

Dissenting Board Member’s Views

Member Hayes, in dissent, asserted the NLRB lacks authority under the NLRA to promulgate this Rule and that the Rule itself is arbitrary and capricious. Specifically, Member Hayes contrasted the NLRA with other workplace statutes that expressly authorize provisions requiring employers to post notices. Congress did not, in the NLRA, include such a provision. Moreover, Member Hayes argued, Congress did not grant the NLRB the authority to implement such a rule.

Significance

This new NLRB requirement is another effort to increase the visibility of unions and facilitate union organizing. It is a precursor to the upcoming expedited Board election rules that we discussed in our July Eupdate that will likely issue in the coming weeks. With the “union” word now coming into employer break rooms (via this notice), it is now more important than ever to design and implement a thoughtful, proactive employee communications program concerning your company’s position on unions and why the company feels that third party representation is not in the employees’ or the company’s best interests. Supervisors should also be trained on the signs of union organizing activity as well as the “dos and don’ts” when it comes to communicating with employees about unions. For assistance with these important issues, please contact your Shawe & Rosenthal attorney.

 

Shawe Rosenthal LLP provides this publication for informational purposes, and it should not be construed or relied upon as legal advice. You should contact your Shawe Rosenthal LLP lawyer to discuss any questions that you may have concerning your own situation.