E-Alerts

NLRB Delays New Poster Requirement Until April 30, 2012

The National Labor Relations Board (“NLRB” or “Board”) recently postponed the effective date of its regulation mandating that most employers – both unionized and non-unionized – post a prescribed notice informing employees of their rights under the National Labor Relations Act (“NLRA”).  The deadline for posting this new notice has now been extended to April 30, 2012.

This is the second time the Board has postponed the effective date of the poster regulation.  (Previously, the Board had postponed the effective date from November 14, 2011, to January 31, 2012.)  It appears that this latest postponement may have been prompted by a recent statement by a federal judge presiding over one of a number of lawsuits seeking to block implementation of the new regulation.  In short, this judge stated that, in her view, more time is needed to consider the legal issues.

Content Of The Poster

The Board’s prescribed poster informs employees as to their basic rights under the NLRA, and as to certain actions that employers are prohibited from taking in response to union organizing activities.  For example, the poster states that it is unlawful for an employer to prohibit an employee from “talking about or soliciting for a union during non-work time, such as before or after work or during break times.”  Similarly, the poster informs employees that an employer may not prohibit them from “distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.”

Posting Requirements

Under the new regulation, as of April 30, 2012, employers will be required to physically post the prescribed 11×17-inch poster (available on the NLRB’s website) where other required workplace notices are normally displayed.  If an employer does not have a printer capable of printing a single 11×17-inch sheet of paper, the employer may print the poster on two 8½x11-inch sheets and tape them together.

Employers must also include links to the poster on their internet or intranet sites if other personnel policies or workplace notices are displayed on those sites.  However, employers need not distribute the poster or its content via email, voicemail, text-messaging or related electronic means, even if they customarily communicate with their employees via these channels.

The poster must be displayed in English and in another language if at least 20% of the employer’s workforce is not proficient in English and speaks the other language.  The NLRB is preparing translated versions of the poster in various languages, which are being posted on the agency’s website as they are completed.

Both Unionized And Non-Unionized Employers Are Covered By The Regulation

All employers subject to the Board’s jurisdiction will be obligated to comply with the new posting requirement, whether or not they are unionized.  The Board’s jurisdiction extends to most private-sector employers, excluding agricultural, railroad and airline employers.

Note:  while the Board has chosen not to assert jurisdiction over very small employers whose volume of business has only a slight effect on interstate commerce, small employers should not assume that they are exempt, as the Board’s standards for coverage vary based on an employer’s industry and gross annual volume of business.  The NLRB has provided a table to help small employers determine if they fall within the Board’s jurisdictional standards.  (If you would like a copy of this table, please let us know.)

Recommendation For Employers

While it is possible that the ongoing court challenges to the new regulation may result in further delays in the posting requirement, employers should nonetheless determine whether they fall within the NLRB’s jurisdiction and, if so, prepare to post the required notice by April 30, 2012.

Additionally, because the posting of the notice – and all of the publicity surrounding this issue – will likely spur increased union-organizing efforts by employees, we strongly recommend that employers desiring to remain union-free take a number of other steps before union-organizing activity has begun.  In particular, employers should:

• Adopt and enforce valid policies that limit when employees may solicit and distribute literature in the workplace, and that prevent unauthorized visitors from gaining access to employers’ facilities.  Because such policies are governed by complex legal standards, they should always be reviewed by labor counsel;
• Be sensitive to issues that are of concern to employees (such as management issues and employee compensation and benefit matters) and attempt to remedy legitimate complaints.  By taking proactive steps in such matters, an employer can help employees understand that they do not need to unionize in order to have a voice in the workplace;
• Train supervisors, managers, and human resources personnel in how to recognize and respond appropriately to possible union organizing activity; and
• Develop a plan for systematically communicating the employer’s position on unionization and related issues, both internally and externally.

Significantly, implementing certain of these recommendations after a union organizing campaign is underway may be viewed as unlawful retaliation against union activity and thereby support an unfair labor practice charge against the employer.  Accordingly, employers that wish to remain union-free should act now to implement these safeguards.