NLRB Issues Operational Memo Related to Required Notice

The National Labor Relations Board recently issued an Operational Memo dealing with the Notice of Rights Poster that employers are required to post by January 31, 2012.

The Operational Memo (OM 12-14, available on the Board's website here) first discusses the Board's outreach efforts to inform employers of the notice posting requirement.  The OM begins by noting that on October 5, 2011, the Board "postponed the effective date of its Notice Posting rule until January 31, 2012, to allow for “education and outreach” to employers “who operate small and medium sized businesses.”  The OM then goes on to outline the steps each Regional Office should take to achieve that goal, including letters to business groups, chambers of commerce, trade associations, and regional journals and publications, among others.  The OM also directs the Regional Offices to issue press releases to local journals and business publications and answer questions about the notice posting rule and its applicability to a particular business or organization.

An attachment to the Operational Memo addresses which employers are required to post the Notice of Rights Poster.  Under the Board's new rule, all employers subject to the Board's jurisdiction (except the Post Office) are required to display the poster.  Specifically, the OM states "The new requirement to post a Notice of Employee Rights under the National Labor Relations Act applies to all employers under the Board’s jurisdiction, except for the U.S. Postal Service."  The OM then discusses the coverage standards for employers in particular industries.  As the Board notes, however, very few employers are excluded.  The OM states: "As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws."  In other words, most all employers are required to post the required notice.

Employers should be prepared to post the required Notice of Rights by January 31, 2012.  Under the Board's new rule, failure to post the required notice is an unfair labor practice.  Additionally, the rule provides that the typical 6-month statute of limitations for filing unfair labor practice charges is tolled for as long as the required notice is not posted, even for unfair labor practices that are unrelated to the notice.  Additionally, the rule states that the Board may consider the failure to post the notice as evidence of anti-union animus, an element that the Board must establish to prove certain unfair labor practices, such as discriminatory discharge.