On December 27, we wrote a blog post regarding the NLRB proposed rule-making to require all employers to post notices advising employees of their rights to engage in union organizing. After a period of public comment, during which about 7,000 responses were submitted to the NLRB, the NLRB has now issued its final rule requiring the posting.
Effective November 14, 2011, all private sector companies covered by the National Labor Relations Act are required to post in the workplace a specific notice advising employees of their rights under the National Labor Relations Act to engage in union organizing, to bargain through a union with their employers, and to refrain from those activities. The notice also gives examples of employer and union conduct which is considered illegal and tells employees of actions they can file with the NLRB to enforce their rights. Here is a link to the NLRB announcement, which includes a copy of the required posting (as an Appendix.) The NLRB promises that by November 1st, the posting will be available for downloading from the NLRB web site and that hard copies will be available from NLRB Regional Offices. All employers will be required to post the notices in conspicuous areas of the workplace where other employment notices are posted. Also, employers that routinely post notices regarding personnel rules or policies on an Internet or intra-net site will be required to post the new NLRB notice on those sites. However, employers are not required to distribute the notice to employees by email or other technological means. In workplaces where at least 20% of the workforce are not proficient in the English language, translated copies must be posted. The NLRB has indicated they will make copies available in various languages.
There are various possible consequences if an employer fails to post the required notice. A failure to post could result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge. In other words, if an employer has failed to post the notice, the employer might lose the opportunity to have a charge dismissed based on the regular six-month time limit to file a charge. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.
Employers should recognize the potential impact of this notice. At a minimum, the notice places the rights to union organizing very prominently in front of employees who perhaps have not thought of the issue on their own. The notice certainly increases the possibility for interest in union organizing and make employees aware of specific employer conduct that is illegal, increasing the possibility of unfair labor practice charges. Between now and the November 14 required posting date, employers should consider their overall measures for staying union-free. Are workplace policies, benefits, and management/supervisor behavior of the sort that employees are less likely to feel a need for union representation? Have supervisors been made aware of the critical role that they play in providing a workplace where employees will be less likely to feel a need for union representation? Are supervisors aware of the proper, legal way to respond if union organizing activity does happen? Now is an opportune time for companies to re-examine their commitment to these things and establish or continue best measures for union avoidance.