On August 25, 2011, the National Labor Relations Board (the NLRB), in a 3-to-1 vote, adopted a final rule (the Final Rule) requiring private sector employers subject to the NLRB's jurisdiction to post a notice advising employees of their rights under the National Labor Relations Act (the NLRA). The Final Rule was originally scheduled to take effect on November 14, 2011; however, the NLRB has decided to delay the implementation date to January 31, 2012, to allow for enhanced education and outreach to employers, particularly those who operate small- and medium-sized businesses.
To Whom the Final Rule Applies
The posting requirement of the Final Rule applies to all private sector employers (including labor unions) subject to the NLRA. The posting requirement applies whether or not the employer's workforce is unionized and whether or not the employer is a federal contractor. However, the Final Rule contains an exception for small private sector employers who would otherwise be subject to the Final Rule, but whose annual volume of business is not large enough to have a more-than-slight effect on interstate commerce. The threshold to meet this exception ranges from an annual gross sales volume of US$500,000 for small retailers to US$1,000,000 in annual receipts for colleges, universities and other private schools.
Posting Requirement
The Final Rule requires covered employers to post, beginning on January 31, 2012, an 11 x 17 inch poster in a "conspicuous place" readily visible to employees. The poster can be obtained at no cost from the NLRB's website1, headquarters or any of its regional, sub-regional or resident offices. Employers are permitted to reproduce the NLRB's official poster, or to post commercially-reproduced combination notices that consolidate information about different federal laws on a single document provided the notice's original size, content, format and size and style of typeface are preserved. Translated versions of the notice will also be available and must be posted at workplaces where at least 20 percent of the employees are not proficient in English. Employers that customarily post employee notices on an intranet or Internet site must display, no less prominently, either an exact copy of the required notice on such site or a link to the NLRB webpage containing the notice. Federal contractors and subcontractors that post notices as required by the US Department of Labor's notice posting rules will be deemed to be in compliance with the Final Rule without posting the notice due to the fact that such notices contain an almost identical statement of employee rights.
Content of Notice
The required notice lists employees' rights under the NLRA including, among others: (i) the right to organize a union and negotiate collectively concerning wages, hours and other terms and conditions of employment, (ii) the right to form, join or assist a union, (iii) the right to discuss wages and benefits and other terms and conditions of employment or union organizing with co-workers or a union, (iv) the right to take action with one or more co-workers to improve working conditions by raising work-related complaints directly with the employer and seeking assistance from a union, (v) the right to strike and picket, depending upon the purpose or means of the strike or picketing and (vi) the right to choose not to do any of the listed activities, including joining or remaining a member of a union.
The required notice lists examples of unlawful employer and union conduct under the NLRA. For employers, these include: (i) prohibiting discussion of unions during non-work time, (ii) questioning employees about union activity, (iii) taking adverse employment action because of union activity, (iv) threatening to close the business if a union is chosen to represent the employees, (v) promising benefits to encourage or discourage union support, (vi) prohibiting union apparel and (vii) spying on or videotaping peaceful union activity. For unions, the list includes: (i) threatening or coercing an employee to join a union, (ii) refusing to process grievances based upon membership in a union, (iii) using or maintaining discriminatory hiring hall practices, (iv) causing an employer to discriminate based upon union activity and (v) taking adverse action for not supporting or joining a union.
The required notice explains that if employees select a union as their collective bargaining representative, the union and the employer are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting forth the terms and conditions of employment. The notice also provides employees with information about how to report violations of the NLRA.
Consequences of Non-Compliance
The NLRB has stated that failure to post the notice may be treated as an unfair labor practice (a ULP) under the NLRA and/or may extend the six-month statute of limitations for filing a charge involving another ULP against the employer. However, the NLRB has stated that if the employer's non-compliance was due to the employer being unaware of its obligation under the Final Rule, and the employer subsequently complies, the ULP will normally be closed without further action. However, a knowing and willful failure to post the required notice may be considered evidence of an unlawful motive in a ULP case involving other alleged violations of the NLRA.
Best Practices Going Forward
Covered employers should prepare to post the required notice in each of their workplaces by no later than January 31, 2012. In addition, employers should consider providing training to supervisors on how to respond to questions that employees may raise following the posting of the notice. In particular, supervisors should be trained on how they can convey the employer's position on union representation without violating the NLRA.
Footnote
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.