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NLRB Issues Final Rule Requiring Employers Covered by the National Labor Relations Act to Notify Employees of Their Statutory Rights

August 31, 2011

On August 30, 2011, the National Labor Relations Board (“NLRB” or “Board”) issued a final rule requiring 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 November 13, 2011, and, according to the NLRB, is intended “to increase 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 notice. 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 Part 471.”
The final rule has been anticipated for almost a year. 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 sufficient 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 advising employees who do not belong to a union but are covered by union security provisions in a collective bargaining agreement to object 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 its 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 will 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 NLRB website. The posted notice must be at least 11×17 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 posted in the workplace where other employee rights notices, such as FMLA and EEOC posters, are already on display. An employer must also take reasonable steps 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 employees speak. The NLRB will prepare any necessary translated notices for employers to use.
In addition to requiring the posting of a paper notice, 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 NLRB removed its prior requirement that an employer distribute the notice to employees via e-mail. 
What Happens If I Do Not Post The Notice In Accordance With the NLRB Rule?
In the event an unfair labor practice charge is filed 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 NLRB will consider such refusal to be a violation of Section 8(a)(1) of the NLRA which prohibits employers from 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 litigation 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 notice posting rule and the employer has refused to post the notice after being informed of the violation, the NLRB has the authority to seek: (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) “additional 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 Court pursuant to Section 10(j) of the NLRA. There is no express provision in the final rule stating an employer will be fined for failing to properly post a notice. 
The rule also states that if an employer fails to post the required notice “the Board may find it appropriate” when an employee files a charge against the employer “to excuse 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 the employee has received actual or constructive notice that the conduct 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 labor practice charges. Specifically, where an employer has been accused in an unfair labor practice proceeding of acting with anti-union animus, or an unlawful motive, “[t]he Board may consider a knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue.” 
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 deadline may result in a potential unfair labor practice finding and other penalties against your organization. If you have any questions about the NLRB rule, or how it may apply to your workplace, please contact Kurt Graham at (616) 608-1144 or, or Steve Platt at (312) 985-5943 or, or your Clark Hill labor and employment attorney. 
For more information contact:
Thomas P. Brady, 313.965.8291 
Daniel J. Bretz, 313.965.8356 
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