On August 25, 2011 the final ruling on the National Labor Relations Board’s (NLRB) Notification of Employee Rights passed by a vote of 3-1. NLRB member Brian Hayes was the sole dissenting vote. Hayes took the position that requiring the placement of an NLRB notification in every applicable workplace dramatically changed the Board’s practice of requiring postings as remedies to employment issues where rights were denied, and instead relegated such postings to a routine requirement remedy without specific cause. The other board members voted affirmatively as they did not see any such extraordinary change.
Effective November 14, 2011, the NLRB’s notice is required to be posted appropriately in America’s workplaces that are subject to the NLRB rules. NLRB’s new rule requires employers to “post a written notice informing employees of their right to organize a union, bargain collectively and otherwise act for mutual aid and protection under the National Labor Relations Act.”
The notice must be:
Posted in a conspicuous place where employees can easily refer to it.
Be kept from defacement or alteration in any way.
Available for viewing at all times and never be covered or blocked from being read.
Placed in all the same areas that other legal notices for employees are placed (such as the workplace safety, equal employment opportunity, nondiscrimination and minimum wage requirements).
Employer’s Position Posting
Employers have the right to post their own company notice informing all employees of the company’s position. This should be placed in the same location as the Notification of Employee Rights. An employer’s statement might, for example, include information to employees that they have the right and the freedom to refrain from union activity. Actually, the employer may share their views and opinions so long as their posting does not threaten or force, or promise some benefit to employees in order to get employees to refrain from union activity.
How This Differs From Previously Proposed Notification Posting Rules
If the employer customarily posts personnel rules or notices on its intranet or on the internet, it must post the NLRB posting on the intranet or internet, without change, also. Employers are not required to distribute postings by email, voicemail, text, Twitter or other electronic means.
The notice itself will detail employee NLRB rights and unlawful union conduct. This includes an employee’s right to act together to improve wages, working conditions, and to join a union to engage in collective bargaining with the employer. Notices can be posted in black and white or color and must be posted in foreign languages common to the workforce when the foreign language is used by 20 percent or more of the workforce. If two languages other than English meet this criteria, then the posting would be placed on the boards in three languages, for example. Notices in many languages are available through the NLRB. There are no employer recordkeeping requirements.
The United States Postal Service is exempted from rule coverage as are agricultural, railroad and airline employers. The posting applies to nearly all private-sector employers and both union and nonunion workplaces. Labor unions must post also. Federal Contractors may comply with the use of the Department of Labor notice solely. “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.”
Failure to Post the NLRB Notice
Sanctions against the impacted employer could include the filing of a National Labor Relations Act (NLRA) unfair labor practice against the employer when the employer failure to post was willful and with knowledge of the law. The Board anticipates most failures to post to be from lack of knowledge to do so and in those cases, the employer will be expected to promptly post the notice appropriately. The NLRB regional director may use reasonable efforts to persuade the employer to post accordingly. The NLRB may also extend by six months beyond the statute of limitations any other open or pending NLRA charges. There is no monetary fine stipulated in the ruling.
Information on the Final Ruling can be found on the NLRB website. Free posters may be obtained from the NLRB or downloaded beginning November 1, 2011. Downloaded posted must be printed in either color or black-and-white on an 11-by-17-inch paper or two 8-by-11-inch papers taped together. Employers may opt to purchase and post a set of workplace posters from a commercial supplier. A Fact Sheet prepared by the NLRB is online.