Add another mandatory poster to the employee break room. The National Labor Relations Board issued a new rule requiring private sector employers subject to the National Labor Relations Act — both unionized and union-free — to post notices explaining employees’ unionization rights.
After taking into account over 7,000 comments since December 2010 (the majority of them against the proposed rule), the NLRB nonetheless issued the rule by a 3-1 count. The rule, published in the Federal Register on August 30, 2011, takes effect on November 14, 2011.
What Employers Need to Know
In short, the required notice will inform employees that they have the right to bargain collectively with their employer for improved wages and working conditions, to form, join and assist a union and to refrain from any of these activities.
The notices — which are 11x17 and in color or black-and-white — must be posted in the workplace in conspicuous locations readily seen by employees, including all places where notices concerning personnel rules or policies are customarily posted. If at least 20% of the workforce is not proficient in English, the notice must also be posted in the appropriate foreign language. In addition to the physical posting, the rule requires covered employers to post the notice on an employer internet or intranet site if personnel rules and policies are customarily posted there. A copy of the notice (in English and other languages) will be available on the NLRB’s website and at the NLRB’s regional offices by November 1, 2011.
In terms of enforcement, a covered employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. The NLRB investigates allegations of unfair labor practices made by employees, unions, employers or others, but does not initiate enforcement action on its own. Typically, the consequences of non-compliance will be limited to requiring that the notice be posted and the unfair labor practice case will then be closed. However, the NLRB may also extend the six-month statute of limitations for filing other unfair labor practice charges against the employer. Where an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in other, unrelated unfair labor practice cases against the employer. The NLRB, however, does not have the authority to levy monetary penalties or fines against non-complying employers.
What Employers Should Do Now
Though notices need not be posted until November 14, 2011, covered employers should prepare ahead of time. Specifically, as questions will inevitably arise once the notices are posted, employers should conduct management training regarding the notices and unionization generally to ensure that managers and supervisors are sufficiently educated to communicate employers’ positions on unionization in a lawful manner.