On August 25, 2011 the National Labor Relations Board ("the Board") issued a final rule requiring employers covered by the National Labor Relations Act ("the Act" or "the NLRA") to post notices informing employees of their rights under the Act, including their right to unionize. Even though the NLRA was enacted more than 75 years ago, this is the first time that any Board has issued a rule requiring providing such notices to all employees.
The Board's final rule comes on the heels of a similar rule issued by the Department of Labor that requires similar postings by federal contractors. The Board's final rule goes beyond the Department of Labor rule to require notice posting by all employers covered by the Act, not just employers who contract with the federal government.
On December 22, 2010, the Board issued its proposed rule. The Board received more than 7,000 comments about its proposed rule, both during and after the notice and comment period. The majority of comments submitted to the Board opposed the rule or aspects of it. Despite extensive criticism and a largely negative response to its proposal, the Board's final rule was largely unchanged from the proposed rule.
Some criticism focused on the Board's authority to issue the notice posting rule. The Board's rulemaking authority only permits the Board to make rules "as may be necessary to carry out the provisions of the Act." There is some question whether—76 years after passage of the NLRA—requiring employers to post notice of employees' rights under the Act is "necessary" to carry out its provisions, and it is possible that the Board may be enjoined from implementing the rule.
In issuing the final rule, the Board stated that its "greatest concern" was the fact that "except in very limited circumstances, no one is required to inform employees of their NLRA rights." In order to exercise those rights, the Board reasoned, employees "must know that those rights exist and that the Board protects those rights."
A significant rationale underlying the Board's rule is its perception of an "awareness gap"—namely, that employees have certain rights under the Act that they fail to exercise because they are unaware of them. In support of its assertion, the Board pointed to:
- The comparatively small percentage of private-sector employees who are represented by unions (only 6.9 percent);
- The high percentage of immigrants in the labor force;
- Studies indicating that employees and high school students about to enter the work force are generally uninformed about labor law; and
- The absence of a requirement that, except in very limited circumstances, employers or anyone else inform employees about their NLRA rights.
The Board's reasoning appears to be that the decline in private-sector employees represented by unions is a result of employees simply not knowing that they can form or join a union. To solve this perceived problem, the Board is requiring employers to post a notice of employees' rights under the Act.
Beginning on November 14, 2011, employers must physically post an 11" x 17" poster in a "conspicuous" place—where notices to employees are customarily posted—and take reasonable steps to ensure that the notice is not altered, defaced or covered.
The notice will be available for download from the Board's website by November 1, 2011. A copy of the Department of Labor's notice for federal contractors (the posting of which, the Board states, also satisfies a federal contractor's notice obligation under the Board's final rule) is available here. The Board's notice includes the following language:
- "The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity . . . ."
"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 wages and benefits and other 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."
"Under the NLRA, it is illegal for your employer to:
- Prohibit you from talking about or soliciting for a union during non-work time, such as before work or after work or during break times; or from distributing union literature during non-work time, in non-work areas such as parking lots or break rooms.
- Question you about your union support or activities in a manner that discourages you from engaging in that activity.
- Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
- Threaten to close your workplace if workers choose a union to represent them.
- Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
- Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so."
In addition, the required notice contains examples of illegal conduct by unions, contact information for the Board, enforcement procedures, information about filing a charge with the Board, and a statement that the Board will prosecute violators of the Act.
All employers subject to the rule must physically post the notice in their facilities, and employers who customarily post notices regarding personnel policies or rules electronically will also be required to post the notice in that manner.
In addition, where a "significant portion" of the employer's workforce is not proficient in English, the employer must also post the notice in the language that those employees speak. The Board defines "significant" as twenty percent or more of an employer's workforce.
Under the Board's new rule, an employer who fails to post the required notice may be found to have committed an unfair labor practice. The Board stated that in cases in which an employer is aware of the notice posting requirement and fails to comply, the Board's standard procedures for investigating and adjudicating unfair labor practices come into play. When the Board finds an unfair labor practice has been committed, the Board will "customarily order the employer to cease and desist" and, ironically, "post the notice of the employee rights, as well as a remedial notice."
The Board anticipates that most failures to post the required notice will be caused by the employer not being aware of the rule. Accordingly, the rule directs the Board's Regional Offices to make "reasonable efforts to persuade" the employer to post the notice "expeditiously." If the employer does so, "the Board expects that there will rarely be a need for further administrative proceedings."
The Board initiates enforcement actions based on allegations made by employees, unions, employers, or others—but does not initiate enforcement on its own. This leaves the Board in the position of relying on the same employees who suffer from the Board's perceived "awareness gap" to report their employer's failure to provide them with notice of their rights under the Act. Indeed, in a recent memo addressing the notice-posting requirement, the Board stated that it will rely upon employees or union representatives "lawfully on the premises" to notify the Board of the employer's failure to post the required notice.
The rule also allows the Board to excuse an employee from the required six-month statute of limitations for filing an unfair labor practice charge if the employer has failed to post the required notice, unless the employee has actual or constructive notice that the complained-of conduct is unlawful. These tolling provisions do not apply to unfair labor practice charges filed by unions, as the Board presumes unions are familiar with the Act's provisions and are not relying on the posted notice required by the rule.
Instances where an employer "knowingly and willfully" fails to post the notice may be considered as evidence of an unlawful motive in other unfair labor practice cases.
What this Means for Employers
Employers must be ready to comply with the notice-posting requirement on November 14, 2011. The notice is meant to inform employees of their right to join and assist unions under the Act, and posting the notice may lead to some increase in such activity. Employers can also expect that unions will be monitoring compliance with the posting rule and taking advantage of the enforcement provisions of the new rule by filing unfair labor practice charges against employers who are the targets of organizing campaigns and who fail to post the notice. Unions may also try to use any failure to comply with the posting requirement to persuade employees that they need a union to protect them.
Employers who expect the notice-posting to precipitate more concerted activity and/or organizational activity may want to consider posting employer information about the disadvantages of union representation, training supervisors in greater depth about the signs of organizing activity and the appropriate responses to employees who raise these issues, training employees, and taking other lawful steps to counteract potential union organization activity.