(February 7, 2012) The California Chamber of Commerce has updated its questions-and-answers document about the “Employee Rights under the NLRA” poster requirement; the document is available on HRCalifornia as part of the HRWatchdog blog.
The CalChamber is closely following the National Labor Relations Board (NLRB) and its decision to require employers to post a new notice, along with all the other required notices.
As previously reported, the NLRB decided to require most private-sector employers to post a new notice entitled “Employee Rights Under the National Labor Relations Act.” The NLRB delayed the implementation date of this poster requirement twice because of lawsuits challenging the requirement. The current implementation date is April 30, 2012.
Many employers want to know whether they can post what often is referred to as a “counter-poster” near the new NLRA required posting. It appears that the intended purpose of the counter-poster is to explain the company’s position on unions and the company’s desire to remain union-free.
Employers should be extremely cautious: Unless carefully drafted, a counter-poster may violate the NLRA and leave the employer vulnerable to an unfair labor practice charge.
Background
The NLRA was enacted in 1935 and regulates most private sector labor-management relations in the United States. The NLRA excludes agricultural, railroad and airline employers. Certain small businesses may be excluded if they are not under the NLRB’s jurisdiction. In addition, the NLRB has agreed to exempt the U.S. Postal Service from the new posting requirement.
In justifying the new requirement, the NLRB states that “many employees protected by the NLRA are unaware of their rights under the statute” and that the requirement to post the notice “will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.”
Notice
The poster must be placed in a conspicuous place readily seen by employees. Employers must post the notice on an intranet or Internet site if personnel rules and policies are customarily posted there. Requirements for printing the poster in languages other than English if more than 20% of employees speak that other language also are detailed.
The notice is similar to one the U.S. Department of Labor requires for federal contractors. The notice states, among other points, that employees have the right to:
- organize a union to negotiate with their employer about wages, hours and working conditions;
- form, join or assist a union;
- bargain collectively with their employer;
- discuss wages and benefits and other terms of conditions of employment or union organizing with co-workers or a union;
- strike and picket, depending on the purpose or means of the strike or the picketing; and
- choose not to do any of these activities, including joining or remaining a member of a union.
The notice provides examples of unlawful employer and union conduct and tells employees how to contact the NLRB with any questions.
Small Business Exclusion
Some very small employers will not be subject to the notice requirement because they are not under the NLRB’s jurisdiction.
The NLRB does not exercise jurisdiction over small businesses whose annual volume of business has only a slight effect on interstate commerce. The NLRB generally applies two standards to determine if it has jurisdiction:
- the retail standard, including home construction. The NLRB will take jurisdiction over any such employer with a gross annual volume of business of $500,000 or more.
- the non-retail standard, which applies to most other employers. It is based on the amount of goods sold or services provided by the employer out of state (“outflow”) or goods or services purchased by the employer from out of state (“inflow”). The NLRB will take jurisdiction over any employer with an annual inflow or outflow of at least $50,000.
Small businesses that are unsure if they are under the NLRB’s jurisdiction and subject to the poster requirement should consult with labor counsel.
Q&A Document
CalChamber updated its Q&A document to discuss the question of counter-postings.