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August
30, 2011
National
Labor Relations Board Issues Final Rule Requiring Employers Cover=
ed
by the National Labor Relations Act to Notify Employees of Their
Statutory Rights
By Kurt M. Graham and L. Steven Platt
On August 30, 2011, the National Labor Relations Boa=
rd
("NLRB" or "Board") issued a final rule requi=
ring
employers subject to the National Labor Relations Act ("NLRA") to conspicuously post a notice =
in
their workplace informing employees of their rights under federal
labor law. The NLRB estimates that the "great majority"=
of
small businesses in the United States will be required to comply =
with
its notice posting requirement. The notice must be posted by Nove=
mber
13, 2011, and, according to the NLRB, is intended "to increa=
se
knowledge of the NLRA among employees=
, to
better enable the exercise of rights under the statute, and to
promote statutory compliance by employers and unions." Since
political subdivisions and states are not subject to the NLRA, they are not obligated to post the no=
tice.
For those federal contractors who have already posted the NLRA rights notice pursuant to the U.S.
Department of Labor's notice posting rule, the NLRB rule states
"contractors may comply with the provisions of this part by
posting the notices to employees required under the Department of
Labor's notice-posting rule, 29 CFR P=
art
471."
The final rule has been anticipated for almost a yea=
r.
In December 22, 2010, the NLRB issued a proposed rule and invited
public comment. The NLRB received more than 7,000 comments in
response to its proposal with a majority of the comments opposing=
the
proposed rule, or some of its features. Many of the comments
questioned whether the NLRB had statutory authority to require a
workplace posting and others argued employees already had suffici=
ent
access to information about their NLRA
rights through the Internet, including the NLRB website. Other
comments asked the NLRB to include information in the notice advi=
sing
employees who do not belong to a union but are covered by union
security provisions in a collective bargaining agreement to objec=
t to
the payment of full union dues.
The NLRB refused to rescind, or make any of the
suggested changes to its proposed rule after considering the
comments. The NLRB stated it has "broad authority" under
Section 6 of the NLRA to institute it=
s rule
and, that despite having access to NLRA
rights on the Internet, only a small fraction of employees are
completely aware of their statutory rights under Section 7 of the=
NLRA, including the right to organize, and =
engage
in protected concerted activity to protest working conditions. As=
a
result, the aftermath of the final rule is non-union employees wi=
ll
likely become more aware of their Section 7 rights to organize and
protest working conditions. The only changes made to the proposed
rule were very minimal, such as modifying the introduction of the
notice to advise employees of their right to refrain from Section=
7
activity.
How will the new NLRB rule impact your organization?
Here is a summary of its requirements, including an employer's
obligations to post the notice and potential penalties for
non-compliance.
How Do I Get and Post the Notice?
The NLRB will provide the notice to employers at no
charge through NLRB Regional Offices, or via download from the NL=
RB
website. The posted notice must be at least =
11x17
inches in size and conspicuously posted where other notices to
employees concerning personnel rules or policies are customarily
posted. Typically, this means the NLRB notice can simply be poste=
d in
the workplace where other employee rights notices, such as FMLA and EEOC p=
osters,
are already on display. An employer must also take reasonable ste=
ps
to ensure that the notice is not altered, defaced, covered, or
otherwise rendered unreadable. In workplaces where 20 percent of
workers are not proficient in English and speak another language,=
the
employer must provide the notice in the native language the emplo=
yees
speak. The NLRB will prepare any necessary translated notices for
employers to use.
In addition to requiring the posting of a paper noti=
ce,
the rule requires electronic distribution to employees, such as by
posting on an Intranet or Internet site, if an employer
"customarily communicates with its employees about personnel
rules or policies by such means." This electronic posting
requirement is a slight change from the proposed rule since the N=
LRB
removed its prior requirement that an employer distribute the not=
ice
to employees via e-mail.
What Happens If I Do Not Post The Notice In Accordan=
ce
With the NLRB Rule?<=
/p>
In the event an unfair labor practice charge is file=
d by
a union, employee, or other individual alleging a failure to post,
the NLRB will investigate. If the NLRB determines that an employer
has failed or refused to post the notice in its workplace, the NL=
RB
will consider such refusal to be a violation of Section 8(a)(1) of
the NLRA which prohibits employers fr=
om
interfering, restraining, or coercing employees in the exercise of
their Section 7 rights. The NLRB has stated, however, that where
employers fail to post the notice because they are unaware of the=
new
requirements there will not be a need for formal action or litiga=
tion
provided once the failure is called to an employer's attention by=
the
NLRB the employer posts the notice.
If the NLRB determines at the conclusion of its
investigation that an employer has refused to comply with the not=
ice
posting rule and the employer has refused to post the notice after
being informed of the violation, the NLRB has the authority to se=
ek:
(1) a cease and desist order requiring the employer to post the
notice, (2) an order that the employer post a remedial notice in =
its
workplace for 60 consecutive days explaining to employees how it
violated the NLRA, and (3) "addi=
tional
remedies" that "may be appropriately invoked in keeping
with the Board's remedial authority." It remains to be seen =
how
the NLRB will utilize item (3), but one possibility is the NLRB
seeking injunctive relief against the employer in U.S. District C=
ourt
pursuant to Section 10(j) of the NLRA.
There is no express provision in the final rule stating an employ=
er
will be fined for failing to properly post a notice. <=
/span>
The rule also states that if an employer fails to po=
st
the required notice "the Board may find it appropriate"
when an employee files a charge against the employer "to exc=
use
the employee from the requirement that charges be filed within six
months after the occurrence of the allegedly unlawful conduct if =
the
employer has failed to post the required employee notice unless t=
he
employee has received actual or constructive notice that the cond=
uct
complained of is unlawful." Therefore, an employer's failure=
to
post could mean that an employee would have an extended period of
time to file an unfair labor practice charge well beyond the
statutorily required six month limitations period.
Additionally, the rule provides that an employer's
failure to post may affect its defense of other pending unfair la=
bor
practice charges. Specifically, where an employer has been accuse=
d in
an unfair labor practice proceeding of acting with anti-union ani=
mus,
or an unlawful motive, "[t]he Board may consider a knowing a=
nd
willful refusal to comply with the requirement to post the employ=
ee
notice as evidence of unlawful motive in a case in which motive i=
s an
issue."
Conclusion<=
/p>
Employers subject to the NLRA
need to be aware of the November 13, 2011 deadline for posting the
notice and also prepare in advance for posting by obtaining the
required notices from the NLRB and determining whether it is
necessary to post the notices electronically, or in a translated
format. Failure to properly post the required notice by the deadl=
ine
may result in a potential unfair labor practice finding and other
penalties against your organization. If you have any questions ab=
out
the NLRB rule, or how it may apply to your workplace, please cont=
act
Kurt Graham at (616) 608-1144 or kgraham@clarkhill.com,
or Steve Platt at (312) 985-5943 or splatt@clarkhill.com,
or your Clark Hill labor and employment attorney.
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