The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA). Here is a quick Q&A for employers.
Who has to post this new notice?
All private-sector employers (including labor unions) subject to the National Labor Relations Act. The new notice requirement does not apply to agricultural, railroad and airline employers or the U.S. Postal Service for the time being.
What does the notice say?
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 wages and benefits and other 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 your employer to:
Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
Question you about your union support or activities in a manner that discourages you from engaging in that activity.
Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
Threaten to close your workplace if workers choose a union to represent them.
Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
Spy on or videotape peaceful union activities and gatherings or pretend to do so.
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 not joined or do not support the union.
There is no union in my workplace; will I still have to post the notice?
Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.
When do I need to post these notices?
November 14, 2011. Copies of the notice will be available on the NLRB website and from NLRB regional offices by November 1.
What if I communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, text message or other electronic means.
Many of my employees speak a language other than English. Will I still have to post the notice?
Yes. 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 Board will provide translations of the notice, and of the required link to the Board’s website, in the appropriate languages.
How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.
What will be the consequences for failing to post the notice?
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. 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.
Can an employer be fined for failing to post the notice?
No, the Board does not have the authority to levy fines.
PRACTICAL TIP: Calendar a reminder to obtain the NLRB notice on November 1, 2011, and post it where your employees could easily access it. Making employees aware of their rights may prompt some to exercise that right, especially in organizations where there is employee discontent. Which brings us to what I often tell my clients who are employers, “do it right and be fair because people don’t usually sue people they like.”