On March 2, 2012, a federal court ruled that the National Labor Relations Board (“NLRB”) had the authority to require companies to post a notice about employees’ rights to organize a union. However, the Court ruled that the NLRB could not impose the penalties it included in the new regulations. As a result of this ruling, as of April 30, 2012, all employers who fall under the NLRB’s jurisdiction must post the poster. To maintain a non-union workforce, employer must now start taking action to respond to this requirement.

In the regulations, the NLRB requires all employers subject to the National Labor Relations Act (“NLRA”) post a notice to employees informing them of the rights under the NLRA. Almost every employer – regardless of size – must post the notice. The notice is an 11 x 17 inch poster and employers must post the poster in a conspicuous location and/or on the Internet or intranet site used by the employer to communicate with employees about employment policies. In addition, employer must post the notice in foreign languages when at least 20% of more of the workforce is not proficient in English and speaks a language other than English. Pro-management groups, consultants and attorneys representing employers complained that the NLRB did not have the authority to issue the requirement and that the language in the poster is pro-union and not balanced. However, the court ruled that the NLRB had the authority to require the posting of the notice. Without ruling, the court let stand the wording of the poster.

In another section of the regulation, the NLRB set forth the ways it will enforce the posting of the notice. The NLRB wanted to be able to rule -- automatically -- that an employer interferes with, restrains and coerces employees by not posting the notice. This is a violation of Section 8(a)(1) of the NLRA and such a violation has important implications in every case filed against employers with the NLRB. In addition, the NLRB wanted to impose additional remedies, extend the time period for employees and unions to file an unfair labor practice charge against an employer and use the employer’s failure as evidence of unlawful motivation in, for example, a case alleging that the employer terminated an employee because of his support for the union.

However, the NLRB overreached. The court ruled that the NLRB had no authority to deem a failure to post the poster a violation of federal law. The mere failure to post is not an affirmative act impeding or hampering employees’ rights to organize into a union. However, the court noted that, in a specific case, there may be evidence to show that the failure to post the poster is a violation of law. In addition, the NLRB is not allowed to extend (or toll) the 6-month statute of limitation to file an unfair labor practice. The regulation is, in effect, an amendment to the statute.  

Although we expect the business groups to appeal this decision, employers must now start to take action to comply with the NLRB’s regulation. In addition, employers must take a number of actions to respond to the poster. These include but are not limited to a union vulnerability audit and training of supervisors to spot the warning signs and to respond to employees’ inquiries about unions.