Nearly 20 years in the making, the National Labor Relations Board (NLRB) for the first time in its 75-year history has decided that nearly every private sector employer in the United States should display a poster informing employees of their rights under the National Labor Relations Act (NLRA). If the NLRB’s new rule goes into effect as currently scheduled on November 14, 2011, most businesses in America will find that they will be shunted into the ever-evolving world of labor relations and potential efforts to organize their employees.

Background to the New Rule

As nearly everyone knows by now, the NLRB published in the Federal Register a Final Rule that requires most private sector employers to include in their legal postings an 11” x 17” poster written by the agency that informs employees of their right to, or not to, join or form a union and of their rights under the NLRA. The Final Rule is the culmination of an effort initiated in 1993 and a rulemaking effort that garnered more than 7,000 comments – most of them opposed to the proposed rule. Prior Boards, including member majorities appointed by Presidents Bill Clinton and George W. Bush, were reluctant to adopt the rule – they doubted their statutory authority to do so – but the current Board has hurtled that potential obstacle.

The Basics: Who Must Post the Rule and What Does it Say?

All non-government employers (private sector), except railroads and air carriers, must post the NLRB Poster. Also excluded is the U.S. Postal Service, which is governed by special provisions regarding labor matters, and those employers who fall below the NLRB’s discretionary “jurisdictional standards” because they have only a minimal impact on interstate commerce Labor unions also are excluded from the posting requirement. More information on these exclusions can be found on the NLRB’s web site at www.nlrb.gov.

The NLRB has prescribed the precise wording of the poster and its format and size. The Poster will be available in final form at no charge for download from the NLRB’s web site in early November 2011. The poster may be printed on two sheets of standard 8-1/2 x 11 in paper and taped together to form the required 11x17 inch poster. The poster may be printed in black and white and must be posted where employers post their other legal posters required by statutes such as Title VII, the FLSA, the ADEA, OSHA, and various state laws. Employers must take steps to assure that the NLRB Poster is not defaced. The NLRB Poster may also be obtained from a variety of commercial printers and included in a combined posting with other legal postings.

What Can Happen if an Employer Fails to Post the NLRB Poster?

The failure or refusal to post the NLRB poster will be treated as an unfair labor practice under the NLRA. The NLRB expects that most such violations will be due to an employer’s lack of knowledge of the posting requirement, and, upon notification by a Regional Office, compliance will be achieved. In such cases, if an employer posts the NLRB Poster, the matter will be closed without further action. If an employer resists the posting requirement deliberately, the NLRB will proceed with its usual unfair labor practice procedure to achieve compliance.

An employer’s failure or refusal to post the NLRB Poster may result in a “tolling” of the six-month statute of limitations for violations of the NLRA in the event of other violations of the statute. This could become an important issue in union organizing situations or other cases. The NLRB, however, cannot impose a monetary fine for a failure or refusal to post the Poster.

Employers Must Post Electronically on their Intranets, but Not by E-mail

Employers are required only to post the paper NLRB Poster where it is likely to be read by employees – in most instances the same place that other legal posters are displayed. If an Employer utilizes an intranet or similar electronic bulletin board for its employee handbook or personnel policies, it must include the NLRB Poster or a link to the NLRB’s web site in the same area. The NLRB dropped from the Final Rule a proposal that would have required employers who communicate with their employees by texting or e-mail – nearly every employer these days – to distribute the Poster or its contents by e-mail or text messaging. Employers are not required to include the NLRB Poster or its language in a printed employee handbook; only the poster is required.

Government Contractors May Rely on the Department of Labor Poster

Federal Government contractors and sub-contractors already are required by Executive Order No. 13496 issued on January 30, 2009 to include a statement of rights in their contracts and post a notice of rights under the NLRA. Effective June 21, 2010, the Department of Labor implemented the posting requirements of the Executive Order. Because that poster is substantially the same as the new NLRB poster, those employers need not also post the NLRB Poster.

What is the Likely Impact on Employers of the Final Rule?

For those employers who already have at least some employees represented by a labor organization, the NLRB Poster is not likely to pose significant issues or even be objectionable.  These employers are familiar with the NLRA’s provisions and have labor agreements and work rules in place that make the Poster relatively less important to employees.

For currently non-unionized employers, however, the impact of the NLRB’s Final Rule will likely elevate the existence of the NLRA in the consciousness of employees. This may lead to discussions or questions posed by employees to supervisors, many of whom will have little knowledge of labor relations issues. Employers will find it necessary to provide their supervisors and managers with appropriate education on these important subjects in order to avoid the unintentional commission of unfair labor practices. Also, some employers may object to the NLRB’s working in the Poster and desire to include in a separate posting their own position concerning labor matters.

What do Employers Need to do Now?

Although the Final Rule was published on August 30, 2011 and is scheduled to take effect 75 days after that date, on November 14, 2011, employers should study the Final Rule and the proposed NLRB Poster. Employers are not required to display the poster at this time. The NLRB has attempted to word its poster in an evenhanded manner, but it recognizes that employers also are free to draft their own statements of their position regarding unions if they believe that the NLRB Poster unfairly favors a different position.

Also, it is not entirely clear that the Final Rule will take effect as planned. Several Bills have been introduced in Congress to prevent its implementation, and there is time for such measures to be considered. However, while such legislation likely would pass the House, it is unclear whether it would pass in the Senate or whether, if passed and vetoed by the President, there would be votes to override a veto. However, it is budget season, and there is a possibility that, as Congress has done in the past, legislation blocking implementation of the Final Rule could be tacked onto a budget bill. Finally, there is the possibility of a court challenge to the NLRB’s statutory authority to require the posting.

As we have reported previously in these e-alerts, with the demise of the Employee Free Choice Act, the Administration and the Board have sought to advance a pro-employee and pro-labor agenda without amending the statute. Employers should assume that the NLRB Poster requirement will take effect as scheduled on November 14, 2011 unless Congress acts to block it. And, in a court challenge to the new rule, the National Association of Manufacturers has filed suit in federal court in the District of Columbia asserting that the NLRB exceeded its statutory authority by requiring a notice to be posted by employers who are not involved in a representation or unfair labor practice case. This suit and actions in Congress to block implementation of the Final Rule are matters that employers should watch carefully.