NLRB Issues New Posting Rule on Notification of Employee Rights Under NLRA

Thursday, September 1, 2011

The National Labor Relations Board has issued its final rule on “Notification of Employee Rights under the National Labor Relations Act.”  The August 25, 2011, regulation, passed by a 3-1 vote of the Board, will have a significant impact on union-free and partially unionized employers. 

The regulation requires that all employers covered by the National Labor Relations Act conspicuously post a notice, where other employment notices are customarily posted, as well as on a company “intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.” The notice informs employees of their right to organize, provides contact information for the NLRB, and lists a litany of unlawful employer conduct. 

Failure to post the notice may constitute an independent unfair labor practice and may be considered evidence of unlawful motive in certain proceedings before the NLRB.  A failure to post also may toll the statute of limitations to file unfair labor practice charges for acts allegedly committed during the period in which an employer failed to post the notice. 

Employers will be required to post the notice beginning November 14, 2011.

Proposed Rule

The NLRB issued a Notice of Proposed Rulemaking on this issue in December 2010.  During the comment period that closed February 22, 2011, more than 7,000 public responses were submitted. Jackson Lewis prepared comments on behalf of several associations.  Concerns raised by the management community included that:

(1) the regulations and proposed posting exceed the NLRB’s rulemaking authority;

(2) the proposed remedies were punitive and exceeded the NLRB’s remedial authority; 

(3) the posting is unnecessary and imposes an unneeded burden on employers; and

(4) the suggested language of the poster did not present a balanced picture of Section 7 rights under the NLRA. 

Final Rule Closely Follows Proposal

The final rule contains some modifications. For example, the final rule removes the “requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner.” Additionally, in response to comments by Jackson Lewis on behalf of one association, the Board modified the posting from proposed language that indicated that a union may not “threaten you that you will lose your job” to read “threaten or coerce you in order to gain your support for the union.”  As to foreign language requirements, the final rule provides that “[w]here 20 percent or more of an employer’s workforce is not proficient in English and speaks a language other than English, the employer must provide notice…in the language the employees speak. If an employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language.” The NLRB also has offered to translate the notice to employees who “do not understand or speak English well.”  Nevertheless, the final rule closely follows the Board’s proposal.

Next Steps for Employers

Employers should prepare prior to the November 14, 2011, implementation date.  For example, employers should train supervisors now regarding the meaning of the notice, the company’s position on unionization, the significance of authorization cards, and how and when to communicate lawfully about these subjects.

Employers' labor relations programs should be reviewed.  This should include performing a bargaining unit analysis, and the pros/cons of posting their own notice (or otherwise communicating with employees) to help their staff understand the Board’s new posting and the employer’s position on the issue. Jackson Lewis attorneys are available to advise your business in connection with this rule as well as all other aspects of labor and employment law and related issues. 

Jackson Lewis will hold a free webinar for employers to discuss the “Notification of Employee Rights under the National Labor Relations Act.”  The date will be provided shortly. 

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