On August 25, 2011, the National Labor Relations Board (NLRB) issued its final rule requiring almost all private sector employers to post notices to its employees advising them of their rights under the National Labor Relations Act (NLRA) to act collectively to improve wages and working conditions; to form, join and assist unions; to bargain collectively with their employer; or to refrain from these activities if they choose to do so.

This rule was initially published as a proposed rule on December 22, 2010. During the comment period for the proposed rule, more than 7,000 comments were received from employers, employer groups, employees, unions and others. The final rule (a copy of the 194-page Notice of Final Rule with commentary is available here) was issued on August 25, 2011, and becomes effective on November 14, 2011. This final rule has the same content as the notice required for government contractors by the Department of Labor discussed in a previous client alert. Employers who have posted the Department of Labor notice are not required to post the notice mandated by this new rule.

There were few significant changes from the proposed rule. The most significant was the decision not to require employers to distribute the notice individually via email, voice mail, text messaging or other direct electronic communications customarily used to communicate with employees. However, posting is required on employer websites or intranet sites if other employee rules or notices are posted on those sites. Other changes involved clarification of the employee notice concerning employee rights and unlawful conduct by unions, and clarification for when employers are required to post the notice in languages other than English.

The 862-word notice, the text of which appears at the end of this alert, must be posted “in conspicuous places” which should include the places where other mandated postings, such as EEO, OSHA and Workers Compensation posters are posted, including on an intranet or internet site if the employer customarily communicates about personnel rules or policies in this manner, and must be displayed as prominently as other notices to employees. Where 20 percent or more of the workforce is not proficient in English, the employer must also post the notice in the other language(s) primarily used. Posters will be available from the NLRB, in English and other languages, from the NLRB’s office in Washington, D.C. or any of its regional, subregional or resident offices or available for download from the NLRB’s web site at http://www.nlrb.gov on or after November 1, 2011.

Failure to post the notice could result in an unfair labor practice charge being filed against the employer and may result in a tolling of the six-month statute of limitations for the filing of an unfair labor practice charge. The NLRB may also consider refusal to comply with the posting requirement as evidence of an unlawful motive in a case where motive is an issue. The NLRB’s Notice of the Final Rule, with background and related questions and answers about the rule, is available here.

What This Means to You

If your business is subject to NLRB jurisdiction and you are not a government contractor who has already posted a notice under the Department of Labor’s posting requirements, you should take steps to ensure that the required posting is appropriately posted at every facility. The posting of these notices may well give rise to employee interest in organizing the workforce, so employers should undertake appropriate defensive measures now, rather than in reaction to a petition for representation.

Text of the Required Notice

EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

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 or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

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.
  • Choose not to do any of these activities, including joining or remaining a member of a union.

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 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.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

  • Threaten or coerce you in order to gain your support for the union.
  • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
  • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  • Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  • Take adverse action against you because you have not joined or do not support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency's Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB's Web site or by calling the toll-free numbers listed above.

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.