The National Labor Relations Board's efforts to extend the reach of unions in the American workplace continues. On August 22, the Board used its rulemaking power to issue a new rule requiring private sector employers to post notices of workers' rights under the National Labor Relations Act. The new notice requirement becomes effective November 14, 2011.
The new rule requires covered employers to display an 11" x 17" poster advising employees of their union organizing rights and of certain illegal conduct by employers and unions. Generally, all private-sector employers are covered, except for air and rail carriers.
The poster includes a list of employee rights under the Act, including the right to organize, form, join or assist a union, to bargain collectively and to discuss wages and benefits with co-workers. The poster also includes a list of illegal acts by "your employer," including prohibiting employees from talking about a union during non-work time, questioning employees about union support, and prohibiting the wearing of union insignia in the workplace, as well as illegal acts by a union, including threatening or coercing employees to gain their support. The poster directs employees to contact the NLRB to complain about alleged violations. The model poster is available by clicking on the attached link.
In addition to posting the notice physically in conspicuous places where it can be seen by employees, the rule requires employers to post the notice on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.
Where 20 percent or more of an employer's workforce is not proficient in English, the poster must be in the language the employees speak. Where multiple languages are spoken other than English, an employer may have additional posting obligations.
While the NLRB has no authority to issue fines against covered employers who refuse or fail to comply, failing to comply can have significant adverse and potentially costly consequences. Failure to comply may indefinitely toll, or extend, the six-month time period in which an unfair labor practice charge may be filed. A finding of willful failure to display the poster may also be sufficient to support a finding of anti-union animus in regard to other conduct alleged to violate the Act.
The new rule, which drew over 7,000 comments to the Board when it was proposed, has been viewed by many business groups as political payback for unions, to promote union organizing and stem ever-dwindling union membership. The rule will likely result in an increase in unfair labor practice charges filed by individual employees. The notice may also result in increased union organizing activity in some sectors.
The appropriate strategy for your company will depend on whether your workforce is unionized or union-free and whether your industry has been a target of organizing activity. Strategies may include creating and posting your own union-free notice and developing a comprehensive union-avoidance campaign. Notwithstanding this new rule, employers remain entitled to express their views and opinions about unions to their employees. .