NLRB’S EMPLOYEE RIGHTS NOTICE AND HOW TO DEAL WITH IT

The Board issued a press release today that its Notice of Employee Rights is now available at www.nlrb.gov/poster

The poster must be placed on a bulletin board with the other government-mandated posters or posted on an electronic bulletin board, if that is the way the employer communicates policies to its employees.  The posting must occur on or before November 14, 2011.  If 20% or more of the employee population communicates in a language other than English, the employer is required to post the notice in that other language.  If the Board does not have a poster in the other language, the employer may post a notice only in English until the Board creates one in the other language.  Government contractors that have been posting the DOL notice of Employee Rights directed by Executive Order do not have to post both the DOL and nlrb posters.  One or the other will suffice.  A failure/refusal to post the poster may result in a delay in the running of the statute of limitations for the filing of unfair labor practices, a finding of the commission of an unfair labor practice and/or a presumption of unlawful union animus.

Those are the bare facts and the bare minimum of what must be done, assuming that the current lawsuit by the NAM requesting that the posting be enjoined is unsuccessful. 

The posting of the Employee Rights poster may be ignored by your employees, as they probably ignore the other government-mandated posters.

However, in part because of its newness and in part because of buzz, employees may not ignore it and employers may expect questions and discussion in the workplace around the issue of unions and union representation.  Some employers fear that the poster will promote unionization.

If the latter possibilities are of concern, you should do the following:

  • Prior to posting, provide it to your supervisors and train them concerning what it is, what it means and what to say to employees who express interest in the possibility of organizing into a union.
  • At the time of posting, create and publish in your handbook or other similar cache of policies a statement of why you wish to remain union free and why a union is not necessary in your workplace.  Of course, such a statement will require you to define your position on each of the relevant issues and enumerate the policies you have that make a union unnecessary.  In addition to the union-free statement, I recommend a short description of what a union authorization card is and means to give you a leg up in the event of organizing.

I have recently been asked whether an employer should post next to the NLRB Poster or otherwise distribute a memo which more fully explains employee rights not to engage in union activity, contains a discussion about what a union can and cannot do and states the value of remaining union free.  While this is appealing, it would be risky.

Currently, there are only two types of NLRB notices: notice of an upcoming election and a notice of employee rights and employer requirements following the settlement or adjudication of an unfair labor practice charge (remedial notices).  Since the mid-sixties, the NLRB has taken the position that any memorandum or other communication that attempts to explain or expand upon one of their remedial notices violates the law.  Whether the Board will take the same position with regard to explanatory memos relating to the Employee Rights poster is unknown.  Until that issue is resolved at someone else’s expense, I think it is too risky.  

A better course of action would be to ensure that your union-free systems are well designed and operating as intended.  Most of all, your supervisors need to know what to say when an employee asks, at a time they least expect it, “do you think we should have a union?”  If you are not sure that your supervisors will respond positively and effectively, without violating the law, you need to consider doing now whatever may be necessary to cure the deficiency.

One would like to think that employees will pay no more attention to the Employee Rights poster than any other government-mandated poster.  Each workplace has its own personality and that may occur in many places.  Waiting to do something until you know just how your employees will react to the posting, however, may put you behind the curve.  Union activity may have already taken hold.