NLRB's Employee Rights Notice Posting Requirement Takes Effect April 30, 2012

Volume 11, Issue 2
April 11, 2012

Absent court intervention or legislative change, employers covered by the National Labor Relations Act (NLRA) must post the National Labor Relation Board's (NLRB) new mandatory employee rights notice (Employee Notice) wherever other workplace notices are typically posted by April 30, 2012.  Additionally, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post an exact copy of the NLRB's Employee Notice on those sites as well.  Employers with a substantial number of employees who are not proficient in English will have to post the Employee Notice in the language(s) spoken by such employees.  With some exceptions, the NLRA applies to most private-sector employers, i.e., those having: (1) two or more employees; and (2) either non-retail operations generating purchases or sales in interstate commerce of at least $50,000 annually or retail operations generating a gross business volume of at least $500,000 along with substantial purchases or sales in interstate commerce.  The NLRA provides employees with statutory protections when they decide to engage in or refrain from various types of group activities to improve their terms and conditions of employment, only one of which is the election of a union bargaining representative. Unfortunately, many such employers incorrectly believe that if they do not have a labor union representing all or part of their workforce, the NLRA and the NLRB are irrelevant to their business.  In actuality, they could not be more wrong. In March, a federal trial court in the District of Columbia ruled that the NLRB has the authority to require covered employers to post a notice informing employees of their rights under the NLRA, but that the NLRB exceeded its authority by issuing penalty provisions providing that simply failing to display the NLRB Employee Notice results in the commission of an unfair labor practice and the extension of the amount of time for the filing of an unfair labor practice charge in such situations.  Rather, the federal trial court found that the NLRB must show, based on the facts of any individual case, that an employer's failure to post the  Employee Notice was intended to or actually did impede or hamper an employee's exercise of his or her rights under the NLRA before an unfair labor practice can be found.  It is important to keep in mind that the federal trial court's decision is subject to appeal and, regardless of whether an employer's failure to post the NLRB's Employee Notice constitutes an independent unfair labor practice charge, the NLRB can still argue that such a failure is evidence of anti-union animus when the employer is before the NLRB on other unfair labor practice charges.  Because the NLRB's Employee Notice presents a one-sided view of the NLRA focused on employees' rights to participate in unionization and other group activities, whatever your company's union status may be, whether union free or completely unionized, it is prudent for employers to ensure employees have a complete and balanced understanding of the NLRA and their rights.  Indeed, employers have a constitutional right to express opinions that are non-coercive in nature, which is reinforced by the language in Section 8(c) of the NLRA confirming that " the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provisions of the Act, if such expression contains no threat of reprisal or force or promise of benefit. 29 U.S.C. § 158(c).  If employers want all or segments of their workforce to remain union free, they must train their supervisors and managers as to why the NLRB Employee Notice is being posted and how to respond to questions from employees regarding the Employee Notice or about unions in general.  Kamer Zucker Abbott also has several "counter posters" available for clients that are designed to be posted next to the NLRB's Employee Notice and set forth the employer's philosophy on unionization and explain all of the employee's rights under the NLRA, including the right to refrain from union activity.  The determination as to which counter poster your company should use is a function of your company's particular corporate culture and, possibly, any restrictions your company may have agreed to with labor unions in neutrality agreements.  Employers should be mindful that there is the possibility for the Obama NLRB to use its enforcement power to challenge employers who use counter posters and other methods to communicate a more complete and truthful overview of employees' rights under the NLRA, as such employer actions contravene the Obama NLRB's efforts to promote unionization.  Nevertheless, for those employers seeking to maintain the status quo regarding the level of unionization in their workforce, KZA recommends the posting of a counter poster and the training of supervisory personnel.  Please contact Kamer Zucker Abbott if you have questions regarding the NLRB's Employee Notice requirements, the sample counter posters, or any other related issues.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.