Thursday, August 25, 2011

NLRB Adopts Notice Posting Requirement For Private Sector Employers

The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice notifying employees of their rights under the National Labor Relations Act. The final rule is scheduled to be posted in the Federal Register on August 30, 2011 and will take effect 75 days later, on November 14, 2011. The poster is similar to the one federal contractors are already required to post pursuant to Executive Order 13496, which was issued by President Obama on January 30, 2009. The Board’s new rule expands the notice requirement beyond federal contractors to most private sector employers. Copies of the required poster should be available from the Board and on the Board’s website in the near future, and at least before November 1, 2011. The Notice must be posted by November 14, 2011.

In addition to physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if other personnel rules and policies are customarily posted there.

Failure to post the notice will be considered an unfair labor practice and an employee may file a charge based on the failure. Additionally, the rule provides that the Board may extend the 6-month statute of limitations for filing a charge involving other, unrelated unfair labor practice allegations during the time the notice is not posted. Finally, 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.

Board Member Brian Hayes dissented from the rulemaking, asserting that the Board does not have the authority to promulgate the rule or to toll the statute of limitations spelled out in the Act. Member Hayes also commented on the Board’s motivation for creating the posting requirement stating that “Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.” Indeed, employers should expect that the posting the notice will prompt employees to begin asking questions about unions and employers should be prepared to explain to employees the truth about what it means to be unionized.

There is likely to be a legal challenge to the rule in the near future. We will continue to monitor any developments.

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