New NLRB Pro-Union Posting Requirements for Private Sector Employers
The National Labor Relations Board ("NLRB") has issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act ("NLRA") by posting a notice. This new pro-union posting requirement requires employers to advise employees of their right to organize a union, join or assist a union, and bargain collectively.
What Employers Are Affected by the New Rule?
The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. The new rule also does not apply to the United States Postal Service. Even employers that are not unionized will be required to display the new poster.
What Are the Posting Requirements?
Starting January 31, 2012, employers will be required to place a single poster 11" x 17" poster (or two 8.5" x 11" papers taped together) notifying employees of their rights under the NLRA. The content of the notice will be similar to the notice that federal contractors are already required to post under U.S. Department of Labor regulations.
Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board's notice on those sites.
If 20% or more of an employer's workforce is not proficient in English but speaks another language, a foreign-language poster must be displayed.
What Are the Penalties for Failing to Comply with the New Rule?
Failure to post the notice may result in a finding by the NLRB that the employer has committed an unfair labor practice under the NLRA. The NLRB expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. Perhaps more importantly, the Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer who fails to post the required notice. If 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.
Where Can Employers Obtain a New Poster?
Copies of the poster are available for free at NLRB regional offices and at the following link: http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf. The NLRB said it will also provide translated versions of the poster upon request.
Employers are Fighting Back Against the NLRB's New Posting Requirement
However, it is important to note that the National Association of Manufacturers and the National Federation of Independent Business have filed lawsuits against the NLRB seeking to enjoin enforcement of the rule on the grounds that it exceeds the NLRB's statutory authority. National Association of Manufacturers President and CEO Jay Timmons argues that the new rule "is just another example of the Board's aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn't have," and that "[t]he growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover." National Association of Manufacturers, http://www.nam.org/Communications/Articles/2011/09/Manufacturers-File-Lawsuit-to-Stop-NLRBs-Overreach.aspx
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