NLRB: Employers Required to Inform Employees of Unionization Rights

On December 22, 2010, the National Labor Relations Board (NLRB) published a proposed rule on a required workplace posting to inform employees of their rights under the NLRA. It's possible that between bowl games, shopping, and the holidays, news tidbits (and our Employment Law Advisory) on the proposed rule may have failed to grab your attention./p>

Employers, employees, and their respective associations, unions, and lawyers scrambled to weigh in during the comment period. The result was nearly 200 pages announcing the final rule and rebutting the many critical comments that had poured in. (http://www.ofr.gov/OFRUpload/OFRData/2011-21724_PI.pdf).

Employers did get two small victories in the comment period, however. First, the NLRB added language about the right not to join a union to the introduction section of the notice. Second, the NLRB removed the requirement that Employers who used Twitter, text messaging, or e-mail to communicate with employees would have to distribute the notice by those means as well.

Employers are required to begin posting the notice on November 14, 2011. The official notice will not be published and available until November 1, 2011. Employers can access it online or get one for no cost at NLRB regional offices.

The Notice will state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities; it will also provide examples of unlawful employer and union conduct; and, it will instruct employees how to contact the NLRB with questions or complaints. You can read the text of the notice at pages 185-190 of the Board's posting of the final rule in the federal register: http://www.ofr.gov/OFRUpload/OFRData/2011-21724_PI.pdf. The final form of the notice will be based on the notice required of federal contractors, which you can access here: http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf. Employers must post the notice physically with other employment law posters. The physical poster must be 11" x 17". If the Employer has an internet or intranet site that contains rules or policies for employees, the Employer must post electronically there. Posting in languages other than English may be required based on the composition of the workforce.

Because the NLRB doesn't have the authority to fine, failure to post the notice may be treated as an unfair labor practice ("ULP"). Employers who fail to comply with the posting requirement will be charged with a ULP, though they will likely get an opportunity to post the notice correctly without additional penalty unless circumstances suggest a more serious penalty is needed. However, be aware that, in other enforcement actions, the Board regularly ups the ante on the form of the posting, for instance by requiring e-mailed postings.