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NLRB Final Rule Requires Unionized And Non-Unionized Employers To Post Notice Of Employee Rights Under NLRA

On August 25, 2011, the National Labor Relations Board (“NLRB” or “Board”) issued a Final Rule requiring most private-sector employers to post a notice informing their employees of their rights under the National Labor Relations Act (“NLRA”).  The Final Rule was posted in the Federal Register on August 30, 2011, and is to take effect 75 days later, on November 14, 2011.

Substance Of The Notice

The required posting is intended to inform private-sector employees of their NLRA rights “to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities.”  The posting will specifically notify employees that they may discuss “wages and benefits and other terms and conditions of employment or union organizing” with their co-workers or a union, and that an employer may not prohibit them from “talking about or soliciting for a union during non-work time, such as before or after work or during break times.”

Posting Requirements

Per this new Final Rule, employers must physically post the notice where other workplace notices are typically posted.

Additionally, employers must post the notice on an internet or intranet site if personnel rules and policies are customarily posted there.

The notice must be posted 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.

However, employers need not distribute the notice via email, voicemail, text messaging or related electronic means, even if they customarily communicate with their employees via these channels.

Unionized And Non-Unionized Employers Must Comply

All employers subject to the Board’s jurisdiction must 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: although the Board has chosen not to assert its jurisdiction over very small employers whose annual 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 by the employer’s type of business and gross annual volume of business.)

Consequences Of Noncompliance

Failure to post the notice may be treated as an unfair labor practice under the NLRA.  The Board also may remedy noncompliance by extending (or “tolling”) the six-month statute of limitations for filing unrelated unfair labor practice charges against the employer.  If the Board determines that an employer’s noncompliance was knowing and willful, then the failure to post the required notice may be considered evidence of the employer’s unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Recommendations For Employers

Employers should immediately determine if they are covered by the NLRB’s jurisdiction and, if so, prepare to implement the required posting by November 14, 2011.  The NLRB will make copies of the notice available at its offices on request and at no cost beginning on or before November 1, 2011.  The notice also will be made available for downloading from the Board’s website, on or before November 1.

As the notice will likely spur increased union-organizing efforts by employees, non-unionized employers desiring to remain union-free should create or update workplace policies intended to help preserve a non-union environment.  Such policies should cover non-solicitation, non-distribution, and restrictions on third-party access to the premises.

We encourage employers to conduct training sessions for managers, supervisors and human resources personnel on how to identify and lawfully respond to union-organizing activity.  This is especially critical where such personnel may be confronted with a union-organizing campaign for the first time.

We also recommend that employers review the workplace for any issues that may need to be addressed, including management issues and employee compensation and benefits, and develop communication programs to help address those issues.  Ultimately, these programs are critical to any successful union-avoidance efforts because they help to identify and address the workplace issues that would likely encourage employees to reach out to a union in the first place.

Of course, all such policies and programs must be consistent with Board law on these topics.  Accordingly, employers should consult with experienced labor lawyers before implementing these measures.

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If you have any questions about these issues or would like our assistance with these or any other labor law matters, please do not hesitate to contact us.