NLRB Adopts Final Rule Requiring Posting of Notice in Workplace

On August 25, 2011, the National Labor Relations Board issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice in a conspicuous location in the workplace.   The poster will notify employees of their rights under the NLRA, specifically:

“Under the NLRA, you have the right to:

  • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
  • Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
  • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your 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 any of these activities, including joining or remaining a member of a union.”

The notice will also contain the following language:

“Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

  • Threaten or coerce you in order to gain your support for the union.
  • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
  • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  • Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  • Take adverse action against you because you have joined or do not support the union.”

The rule is scheduled to be printed in the Federal Register today, August 30, 2011, and will take effect 75 days later, i.e., notices must be posted by November 14, 2011.  The final rule can be found at:

NLRB Final Rule

This final rule adopts the proposed rule, issued on December 22, 2010 (see our post of February 22, 2010), with only a view changes.  The Board received a total of 7,034 comments from employers, employees, unions, employer organizations, worker assistance organizations, and other concerned organizations and individuals, including two members of Congress. The majority of comments, as well as Board Member Hayes’ dissent, opposed the rule or aspects of it.

The notice of rights will be provided at no charge by NLRB regional offices or can be downloaded from the NLRB website and printed in color or black-and-white.  It is expected to be available by November 1, 2011.  Translated versions will be available, and must be posted at workplaces where at least 20% of employees are not proficient in English.

The 11-by-17-inch notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule.  Federal contractors who post the notice required by DoL are not required to also post the NLRB notice.

The posting requirement applies to all private-sector employers subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. Employers in both union and non-union workplaces are subject to the NLRB’s jurisdiction and therefore must comply with the posting requirement, although the NLRB has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce.

In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.

If an unfair labor practice is found because the employer failed to post the required notice, the NLRB may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.   In addition, if the NLRB finds that an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.  The NLRB does not have the authority to levy fines.

Comment:

 The question remains whether the NLRB has the authority adopt such a posting requirement or to treat non-compliance as an unfair labor practice.  To quote from the dissent of NLRB member Brian E. Hayes:

“Today, my colleagues conjure up a new unfair labor practice based on a new statutory obligation. They impose on as many as six million private employers the obligation to post a notice of employee rights and selected illustrative unfair labor practices. The obligation to post is deemed enforceable through Section 8(a)(1)’s proscription of interference with employees’ Section 7 rights, and the failure to post is further penalized by equitable tolling of Section 10(b)’s limitations period and the possible inference of discriminatory motivation for adverse employment actions taken in the absence of posting. While the need for a more informed constituency might be a desirable goal, it is attainable only with Congressional imprimatur. The Board’s rulemaking authority, broad as it is, does not encompass the authority to promulgate a rule of this kind. Even if it did, the action taken here is arbitrary and capricious, and therefore invalid, because it is not based on substantial evidence and it lacks a reasoned analysis.”

This rule will undoubtedly be tested in the courts.

The Corporation Secretary

 

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