New NLRB Rule Requires Almost Every Employer To Post A Notice Advising Employees How To Form A Labor Union and File Charges Against The Company
Union membership nationally is at an all-time low of just 6.9% of private sector employees. With big labor one of President Obama's largest supporters, it's no surprise that Mr. Obama's appointees to the National Labor Relations Board (NLRB) have begun significantly altering the law to make it easier for unions to organize.
In the latest move, the NLRB created a new requirement that employers notify employees of their rights to form, join and assist a union in its effort to sign up new members. It also educates employees about how to file unfair labor practice charges against their employer for management violations of the NLRA, provides examples of unlawful employer conduct, and instructs employees how to contact the NLRB with questions or complaints. The new requirement takes effect on November 14, 2011.
Under this new rule, private-sector employers whose workplaces fall under the jurisdiction of the National Labor Relations Act (NLRA) will be required to post the employee rights notice where other workplace notices are typically posted. Employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board's notice on those sites. Copies of the notice will be available from the Agency's regional offices, and it may also be downloaded from the NLRB's website at www.nlrb.gov.
The new rule has a huge club for employers that don't comply - the NLRB has given itself the authority to extend (lengthen) the statute of limitations beyond 6 months for any employer violations of the NLRA. Also, a failure to post the new notice could be deemed as evidence of the employer's anti-union motive in relation to other unfair labor practice charges that may be filed.
We expect that employers will continue to experience a resurgence of union organizing activity and unfair labor practice filings as big labor tries to expand while they still have a friend in the White House. Watch for future issues of Compliance Matters as we catalog for you a host of other huge changes that the NLRB has in the works. All of these changes will make it easier for unions to organize your employees.
Below is a Q&A published by the NLRB regarding the new notice posting obligations.
Questions and Answers:
Does my company have to post the notice?
The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes public employees, agricultural, railroad and airline employers. In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization's unique rules under the Act.
When will the notice posting be required?
The final rule takes effect 75 days after it is posted in the Federal Register, or on November 14, 2011.
There is no union in my workplace; will I still have to post the notice?
Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board's jurisdiction (aside from the USPS) will be required to post the notice.
I am a federal contractor. Will I have to post the notice?
The Board's notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board's notice posting rule if it posts the Department of Labor's notice.
I operate a small business. Will I have to post the Board's notice?
The rule applies to all employers subject to the Board's jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.
How will I get the notice?
The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board's website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.
What if I communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.
Many of my employees speak a language other than English. Will I still have to post the notice?
Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice, and of the required link to the Board's website, in the appropriate languages.
Will I have to maintain records or submit reports under the Board's rule?
No, the rule has no record-keeping or reporting requirements.
How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.
What will be the consequences for failing to post the notice?
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 case will typically be closed without further action. The Board also 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 willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
Can an employer be fined for failing to post the notice?
No, the Board does not have the authority to levy fines.
If you would like to know more about our traditional labor relations services, please call your contact at the firm at (818) 508-3700, or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
