On August 25, 2011, the National Labor Relations Board ("NLRB" or "Board") issued a final rule which, effective November 14, 2011, will require employers to post an NLRB-issued notice detailing employees' unionization rights under the National Labor Relations Act ("NLRA").
Specifically, the rule applies to almost all private-sector
employers subject to the NLRA. Importantly, the rule applies to
employers who do not have unionized workforces.
The Board's stated motivation for implementing the posting
mandate is its belief that many employees are unaware of their
rights under the NLRA. Accordingly, the notice is intended to
"increase knowledge of the NLRA among employees, in order to
better enable the exercise of rights under the statute." Thus,
the notice informs employees of their NLRA rights, including the
right to organize or join a union, to strike and picket, to raise
work-related complaints with a government agency, or to choose not
to do any of these activities. Additionally, the notice informs
employees of numerous actions which employers and unions are
prohibited from taking against them, in particular, with respect to
the decision to join or not join a union. Lastly, the notice
instructs employees on how to contact the NLRB.
Apart from physically posting the notice in all places where
personnel rules and policies are regularly posted, employers must
also post the notice electronically on any intranet or internet
site where such rules and policies are customarily maintained.
Additionally, for workforces in which at least 20% of employees are
not proficient in English, employers are required to post a
translated version of the notice – which will be provided
by the Board – in the language which the employees
speak.
Although the Board may not impose a fine on employers who do not
post the notice, the Board could treat an employer's failure to
post the notice as an unfair labor practice. Significantly, the
Board has authority under the rule to extend the 6-month statute of
limitations for filing an unfair labor practice charge alleging
other unfair labor practices against the non-posting employer.
Moreover, the Board could consider an employer's knowing
failure to post the notice as evidence of unlawful motive in other
unfair labor practice cases in which motive is an issue.
The NLRB has yet to publish a copy of the notice, however, the
Board has said that the notice is similar to the one which the U.S.
Department of Labor currently requires federal contractors to post. By November 1,
the notice will be available for download from the NLRB's website and may
also be obtained from any one of the NLRB's
offices. In the interim, the text of the notice is set forth in
the August 30, 2011 Federal Register (76 Fed. Reg. 168).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.