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Private Sector Employers Required to Post National Labor Relations Act Notice
September 6, 2011
On August 25, 2011, the National Labor Relations Board (the “NLRB”) issued a new rule requiring all private sector employers within its jurisdiction to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). The rule affects most private sector employers regardless of whether their employees are represented by a union. The rule was published in the Federal Register on August 30, 2011 and takes effect 75 days thereafter on November 14, 2011.
The rule was prompted by the NLRB’s belief that many employees who are protected by the NLRA are unaware of their rights under the statute and that the notices will increase employees’ knowledge of the NLRA and better enable them to exercise their rights thereunder. The NLRB noted that a beneficial side effect of the new rule may be the promotion of statutory compliance by employers.
Copies of the notice will be available on the NLRB’s website on or before November 14, 2011. The 11 x 17 inch notice should be posted in conspicuous places readily seen by employees, including all places where notices to employees are customarily posted. In addition to the physical posting, each covered employer must also post the notice on its internet or intranet site if personnel rules and policies are generally posted there. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The NLRB will provide translations of the notice. Employers are not required to distribute the posting by email or other electronic means.
Excerpts of the notice include the following:
“Under the NLRA, you have the right to:
- Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
- Form, join or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
- Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
- Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
- Strike and picket, depending on the purpose or means of the strike or the picketing.
- Choose not to do any of these activities, including joining or remaining a member of a union.”
“Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:
- Threaten or coerce you in order to gain your support for the union.
- Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
- Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
- Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
- Take adverse action against you because you have joined or do not support the union.”
An employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. In cases where an employer is simply ignorant of the rule, it is likely the NLRB will allow the employer to avoid further administrative proceedings by posting the notice. However, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
NLRB Member Brian Hayes strongly objected to the issuance of the rule, arguing in his dissent that the NLRB has no statutory authority to mandate notice posting. In fact, the majority conceded that the “National Labor Relations Act does not directly address an employer's obligation to post a notice of its employees' rights arising under the Act or the consequences an employer may face for failing to do so.” Accordingly, it is expected that the rule will be challenged. In the interim, covered employers should comply with this new posting requirement no later than November 14, 2011.
If you have any questions about whether your business is covered by this new rule or general questions about the rule, please contact Nancy J. Puleo or any other attorney in our Employment Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP. All rights reserved.