New final regulations issued by the National Labor Relations Board (“NLRB” or the “Board”) will require most private employers to post in the workplace by November 14, 2011 a notice informing employees of their rights under the National Labor Relations Act (“NLRA”), including their right to form and join labor unions. This new posting requirement is similar to one imposed last year on federal contractors pursuant to an Executive Order from the President. It marks the first time that private employers other than government contractors have been required to post a notice informing employees of the full range of their NLRA rights. Although at least one lawsuit has already been filed challenging the NLRB's authority to issue this rule, as of this writing, the posting requirement is still scheduled to go into effect on November 14. 

Because the required poster discusses organizational rights, broadly describes unlawful employer and union acts under the NLRA, and provides contact information for the NLRB, it is likely that the new posting requirement will stimulate union-organizing activity and lead to an increased number of unfair labor practice charges being filed against employers. Advance planning and action can help minimize the impact of the notice once it goes up in the workplace.   

Most Private Employers Are Covered by the Posting Requirements

The new posting requirements apply to all private employers covered by the National Labor Relations Act, with very limited exceptions. The rules do not apply to the United States Postal Service, and they do not apply to employers that have a minimal impact on interstate commerce—typically, retail and home construction companies with a gross annual volume of business of less than $500,000 and nonretail businesses that neither annually provide nor receive from out of state at least $50,000 worth of goods or services. The rules also do not apply to employers covered by the Railway Labor Act, which applies to, among other entities, railroads and air carriers. Virtually all other private employers are subject to the new rules. Federal contractors covered by the NLRA, while generally subject to the posting requirements, are deemed to comply with them if they are in compliance with the Department of Labor’s similar posting requirements pursuant to the Executive Order mentioned above.   

The Required Notice

The required notice regarding the NLRA states in very general terms the rights of employees to form, join, or assist a union; to bargain collectively through a representative of their choosing; to discuss terms and conditions of employment with co-workers or a union; to engage in concerted activities with co-workers; to strike and picket; and to refrain from any of these activities. The notice also lists examples of conduct by employers and by unions that are prohibited by the NLRA. Given the complexity and evolving nature of the law under the NLRA, the information about NLRA rights and unlawful conduct contained in the notice is inevitably simplified and generalized, and employees relying solely on what they read in the notice may mistakenly conclude that certain employer conduct is unlawful when, under the particular circumstances, it is lawful under the NLRA.   

One aspect of the notice is all too clear, however. The notice informs employees that they should contact the NLRB if they believe their rights or the rights of others have been violated, and it provides the NLRB’s website address and toll-free telephone number for that purpose.

Copies of the required notice, which must be at least 11 inches by 17 inches in size, will be available from the NLRB at its website, http://www.nlrb.gov, no later than November 1, 2011. The Board will also provide copies in languages other than English. Employers may reproduce and use exact duplicate copies of the notice and may use posters from commercial poster services that consolidate into one poster the new NLRA notice with notices required by other federal employment laws, provided the consolidated poster does not alter the size, content, or format of the NLRA notice.   

The notice must be posted in an employer’s facilities in conspicuous places where it will be readily seen by employees, including areas where the employer posts notices to employees about personnel rules or policies. Although a covered employer must always post an English language copy of the notice, a foreign-language translation must also be posted in certain situations. If twenty percent or more of the employer’s workforce is not proficient in English but speaks the same foreign language, the employer must post the notice in that foreign language. If there are two or more groups of non-English speaking employees, each of which comprises at least twenty percent of the workforce and each of which speaks a particular foreign language, the employer must post the notice in the language spoken by the largest number of non-English speakers and must also either post or distribute copies of the notice in the foreign language spoken by employees in the smaller group or groups. The NLRB will provide any necessary translations of the notice. Importantly, if an employer customarily posts notices to employees electronically, such as on an intranet or internet site, it must prominently post the required notice about NLRA rights (including any required foreign-language translations of the notice) electronically as well as posting it physically in the workplace.

Enforcement of the NLRA Notice Requirement   

The new regulations declare that violations of the new posting requirements shall constitute unfair labor practices under the NLRA. The Board will enforce the posting rules through compliance investigations triggered by the filing of an unfair labor practice charge alleging that the employer has failed to comply with the posting requirements. If the NLRB finds a violation, it will order the employer to comply with the posting requirement. Although there are no monetary penalties or fines for noncompliance, an employer’s failure to post the notice can adversely affect the employer’s rights under the NLRA. In the event the employer fails to post the required notice, the NLRA may excuse employees from the six-month statute of limitations for filing unfair labor practice charges. This means that failing to post the notice can potentially expose employers to NRLA charges for conduct occurring years earlier. Failure to post the notice can also constitute evidence of an unlawful motive by the employer in cases where its motive is at issue.

Preparing for the Posting Requirement   

By providing employees with information about rights and unlawful practices under the NLRA in broad, sweeping terms that do not reflect the nuances of NLRA law and by providing employees with contact information for the NLRB, the NLRA notices will likely fuel employee inquiries about and challenges to employer practices. Employers, particularly those with nonunionized employees, would be wise to prepare for heightened employee awareness of the NLRA. Adhering to the following measures may significantly reduce the potential adverse consequences of the posting requirement: 

  1. Train Managers and Supervisors   

Because the NLRA poster will introduce many employees to their rights under the NLRA and may lead employees to ask questions about those rights, it is essential that managers and supervisors be familiar with NLRA rights and with the types of employer and union conduct that are prohibited by that law. Although the NLRA rights described in the new poster do not apply to supervisors, the actions of even a front-line supervisor that violate the NLRA will ordinarily be attributed to the employer and may lead to employer liability, even when the supervisor acts on his or her own initiative. Thus, all supervisors should have a thorough understanding of what constitutes unlawful threats, promises, interrogation, and surveillance under the NLRA. They should also know how to respond to employees who come to them with questions about unionization or with complaints about harassment from fellow employees who are trying to organize a union. In addition, supervisors should know the warning signs of union-organizing activity and should know what to do when such warning signs appear. For employers that currently have unionized employees, supervisors and managers should be trained to address questions about the decertification of a union without stepping over the line into unlawful assistance of decertification efforts. Appropriate training of managers and supervisors can substantially countermand the effects of the heightened employee awareness of the NLRA that is likely to flow from the required NLRA poster. Even if supervisors have previously received NLRA training, an employer should consider refresher training in light of the new posting requirement.  

  1. Review Personnel Policies and Practices

Employers should have their personnel policies reviewed by experienced labor counsel to ensure that they comply with the NLRA. It is not uncommon, for example, for employers to have policies prohibiting employees from disclosing their wage rates to anyone, but in the absence of special circumstances, such a policy is an unlawful infringement of employee rights under the NLRA. Indeed, the new NLRA poster expressly advises employees that they have the right to “discuss your wages and benefits and other terms and conditions of employment” with co-workers or a union. Fine distinctions in wording can mean the difference between a lawful policy and an unlawful policy under the NLRA. For example, an employer may lawfully prohibit employees from soliciting other employees during “working time,” but a policy that prohibits solicitation during “working hours” is deemed to violate the NLRA. In addition to identifying unlawful policies, a policy review can identify policies that the employer does not have in place but should adopt to protect its legitimate interests in the event union-organizing activity should occur. Employers generally may not adopt restrictive policies in response to union-organizing activity or other activity protected by the NLRA, so having appropriate, valid policies in place before such activity occurs can be crucial.

  1. Identify and Remedy Employee-Relations Problems        

Conducting an audit of employee-relations issues can help an employer identify and remedy sources of employee dissatisfaction before employees become better educated concerning their NLRA rights through the new NLRA poster. By resolving employee-relations problems before the NLRA notice is posted in the workplace, an employer may reduce the incentives for employees to consult with a union or to join with other employees in concerted activity protected by the NLRA. An effective open-door policy can also help identify and remedy the workplace issues that might induce employees to exercise their NLRA rights.

Conclusion

The NLRB’s new posting requirements apply broadly to nearly all private employers, many of which have limited experience with union-organizing efforts. Preparation is the key to minimizing the impact of this posting requirement. Kilpatrick Townsend attorneys have extensive experience in assisting employers with supervisory training regarding the NLRA and unions, personnel policy reviews, and workplace audits