New Poster for 2011: NLRB Requires Notification of Unionization Rights

September 1, 2011  |  From HRCalifornia Extra

On August 25, the National Labor Relations Board (NLRB) issued a final rule requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA). The NLRA regulates most private sector labor-management relations in the United States.

The rule is scheduled to take effect on November 14, 2011, and employers will be required to start posting the new NLRA notice on or before that date.

CalChamber will be preparing a compliance product in time for you to distribute to your employees before the November 14 deadline. The NLRB has not yet released all of the final poster specifications.

Though the rule seems to be a simple poster requirement, the rule contains many detailed provisions. In anticipation of the many questions employers may have on this new posting requirement, we have prepared a NLRA Poster Questions and Answers document.

We do know that the notice will be an 11x17 poster detailing employees’ rights under the NLRA. The poster is required to 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 choose not to participate in any of these activities.

Employers who usually notify employees about employment rules and policies on a company Internet or intranet site will be required to post the NLRA notice electronically on such sites. There is also a requirement to post the form in languages other than English if more than 20 percent of employees speak a language other than English.

The notice requirement applies to most private-sector employers and to union and nonunion workplaces. Certain small businesses may be excluded if they are not under the jurisdiction of the NLRB. Specifically excluded are agricultural, railroad and airline employers.

Background Regarding the New Requirement

The NLRB contends that the new posting requirement is necessary because "many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees." The decision to require this new posting was criticized heavily by employers and business groups. The NLRB received nearly 7,000 comments on the proposed rule change, including comments from CalChamber.

Many employer groups argued that the proposed regulation exceeded the NLRB’s rulemaking authority and that the proposed requirement was unnecessary and imposed an undue burden on employers.

What the Poster Will Say

Generally, the poster will inform employees of their right to:

  • Organize, form, join, or assist a union
  • Bargain collectively to improve wages and working conditions
  • Discuss terms and conditions of employment with fellow employees
  • Take action with other employees to improve working conditions
  • Strike and picket
  • Not participate in any of those activities

The poster will also state that it is illegal for employers to:

  • Prohibit employees from soliciting for a union during non-work time or from distributing union-related materials in non-work areas
  • Question employees about their union support or activities
  • Fire, demote or transfer employees, or take or threaten to take any other adverse action against employees because they join or support a union
  • Threaten to close a workplace if workers choose a union
  • Promise or grant promotions, raises or other benefits to discourage or encourage union support
  • Prohibit employees from wearing union hats, buttons, t-shirts and pins in the workplace, except in special circumstances
  • Spy on or videotape peaceful union activities

The required notice provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. Specific language is provided in the final rule.

Enforcement of the Posting Requirement

The final rule sets forth potential consequences for failure to comply with the posting requirement. The final rule also states that in most circumstances, the NLRB’s initial focus will be on compliance. The NLRB will generally assume that the employer was unaware of the need to post the new notice; ask the employer to post the required notice; and close the matter once the notice is posted.

However, if the alleged posting violation cannot be resolved informally, a formal complaint process may occur. First, the failure to post may be grounds for an unfair labor practice charge under the NLRA’s section 8(a)(1). This section prohibits employers from interfering with, restraining or coercing employees with regard to the exercise of rights granted under the NLRA.

Second, failure to post the notice may extend the six-month statute of limitations period for filing an unfair labor practice charge, unless the employee had actual or constructive knowledge that the conduct was unlawful. Third, if the NLRB finds a knowing and willful refusal to comply with the posting requirement, the NLRB may use the failure to post as evidence of unlawful motive in an unfair labor practice case.

Best Practices

  • Start posting the new notice on or before November 14, 2011. We will let you know when the new poster is available as soon as the NLRB releases its exact requirements.
  • Consult with labor counsel if you are unsure whether your small business is under the NLRB’s jurisdiction and subject to this poster requirement. The new posting requirement applies to most private sector employers. Some very small businesses are not covered.
  • Train supervisors as to what the notice means.