On December 23, 2011, the National Labor Relations Board (“NLRB”) again postponed implementing its requirement that employers expressly notify employees of their rights under the National Labor Relations Act (“NLRA”). Unless there are further delays (which is quite possible given the several challenges to the rule), the posting requirement will now go into effect on April 30, 2012.
If the rule goes into effect, employers would have to post an 11×17-inch poster that informs employees of their NLRA right to:
- Organize a union to negotiate with their employer regarding wages, hours and other terms and conditions of employment;
- Form, join, or assist a union;
- Bargain collectively through representatives for a contract with the employer setting wages, benefits and other working conditions;
- Take action with co-workers to improve working conditions; and
- Strike and picket, depending on the purpose or means of the strike or picketing.
The required notice would also describe employer activities that are illegal under the NLRA, such as prohibiting employees from talking about or soliciting for a union or distributing union literature during non-work time; questioning employees about union support or activities to the degree that the questioning discourages employees from engaging in union activity; retaliating against employees due to actual or suspected union activity; threatening to shutter the facility if employees unionize; conditioning promotions or other benefits to discourage or encourage union support; prohibiting employees from wearing union paraphernalia in the workplace; and surveilling union activities and gatherings.
If the company customarily posts rules and policies on its internet or intranet sites, employers would also be require to post the notice on those sites, as well. If more than 20% of a workforce is not proficient in English, the employer must post the notice in English and the other language in which employees are proficient.
Failure to post the notice would be considered an unfair labor practice under the NLRA. The Board does not have authority to levy any fines for a failure to post, but the Board may extend the six-month statute of limitations for filing an unfair labor practice charge against an employer who fails to post the notice. If it is determined that an employer “knowingly and willfully” failed to post the notice, it may be considered evidence of unlawful motive in an unfair labor practice case.
Stay tuned for further developments.