Concluding that "many employees protected by the NLRA are unaware of their rights under the statute," the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf. As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content and size of which has tentatively been decided to be the same as the notice currently required to be posted by federal contractors.pdf pursuant to Executive Order. The NLRB says it will make the notice available at no cost to employers who will be able to get it from the NLRB offices or electronically through the NLRB's website.
There is no recordkeeping requirement, however, failure to post a notice would be considered an unfair labor practice. Although the Board has indicated such a violation would be technical, in reality a failure to post could have serious implications. As the Board noted in its FAQs on this issue
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice cases will be closed without further action. The Board may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willingly fails to post the notice, the failure may be considered evidence of unlawful motivation in an unfair labor practice case involving any other alleged violations of the NLRA.
Although unstated, the failure to post could have serious consequences in representation campaigns and elections as well. As we previously noted, the NLRB has held that an overbroad handbook provision could result in the results of an representation election being overturned, even when there is no evidence the employees even were aware of it. The same reasoning would apply here: a violation of the law, even a technical and arguably inconsequential one, could be deemed enough to overturn an election.
Overall, the rulemaking itself is not terribly surprising. The NLRB recevied 7,034 comments (some of which it acknowledges were counted twice because they were filed electronically and by mail), which in today's labor relations climate ran along the spectrum of "you should do more" to "you can't do it because it you don't have the authority." Weighing in at 194 pages, the bulk of the final rule is made up of the NLRB discussing the comments it received. For example
The contention that the right to refrain from union activity is 'buried' in the list of affirmative rights or that the Board is biased in favor of unionization becase of the choice of placement is with out merit. The list of rights in the proposed notice is patterned after the list of rights in Section 7 of the NLRA. . .
The takeaways for employers:
- Unless successfully challenged, the notice must be posted as of November 14, 2011.
- The notice must be posted where other notices for employees are customarily posted. If the employer makes such notices available on an intranet, it must do so in this case as well.
- There is no recordkeeping requirement, but failure to post is an unfair labor practice.
- The failure to post could have implications on other unfair labor practice situations and representation elections.
- The notice must be posted even in places where a union is already in place.
- Post it. It is not worth the hassle to not do so.