On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees. This new obligation applies to virtually all private sector employers, regardless of whether their workforces are unionized and regardless of whether they are federal contractors. The effective date of the notice posting requirement initially was November 14, 2011, but was subsequently postponed to January 31, 2012. The NLRB then postponed the effective date of the rule to April 30, 2012. As a result of two conflicting federal court decision regarding the rule, the NLRB now has placed the rule on hold indefinitely. The purpose of this article is to provide employers with an understanding of the status of the rule and the challenges which have been undertaken in opposition to its implementation.
Required Content of Notice
The NLRB’s rule requires employers to post a specific form notice that begins with the following introductory language:
The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular work place.
The required notice also informs employees of specific rights afforded them under the NLRA, such as the right to:
- Organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment.
- Form, join, or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract with their employer setting wages, benefits, hours, and other working conditions.
- Discuss wages, benefits, and other terms and conditions of employment or union organizing with co-workers or a union.
- Take action with one or more co-workers to improve working conditions by, among other means, raising work related complaints directly with the employer or with a government agency, and seeking help from a union.
- Strike and picket, depending on the purpose or means of the strike or the picketing.
- Choose not to do any these activities, including joining or remaining a member of a union.
In addition, there is a section in the required notice advising that employers cannot do any of the following under the NLRA:
- Prohibit employees from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
- Question employees about union support or activities in a manner that discourages employees from engaging in that activity.
- Fire, demote, or transfer employees or reduce hours or change shifts or otherwise take adverse action against employees or threaten to take any of these actions, because employees join or support a union, because they engage in concerted activity for mutual aid and protection, or because they choose not to engage in any such activity.
- Threaten to close the workplace if workers choose a union to represent them.
- Promise or grant promotions, pay raises or other benefits to discourage or encourage union support.
- Prohibit union employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so.
The required notice then contains a section that explains the concept of collective bargaining as follows:
If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employments. The union is required to fairly represent you in bargaining and enforcing the agreement.
Who Must Post The Notice
Virtually all private sector employers subject to the NLRA are required to post the notice, regardless of whether their workforces are unionized, partially unionized or non-unionized. Very small employers below the NLRB’s jurisdictional standard for impacting interstate commerce and other limited classes of employers outside of the NLRA’s jurisdiction are not subject to the rule.
Litigation Challenging the Rule
In April of 2012, a federal court in South Carolina found that the NLRB did not have authority to issue the notice rule. The court’s opinion noted that while the NLRA requires employees to be notified of their rights under the statute “in narrow circumstances”, it does not explicitly require employers to post general notices of employees’ statutory rights. Further, the court found that the notice rule wasn’t necessary to carry out any part of the NLRA.
The federal court’s decision in South Carolina partially contradicted an earlier ruling by the federal district court for the District of Columbia. That court had found that the NLRB did have authority to promulgate the notice rule. However, it found that the NLRB had violated the NLRA when it had concluded that failure to display the poster was an unfair labor practice.
The United States Court of Appeals for the District of Columbia now has halted the notice rule from going into effect. Accordingly, in light of the strong interest in the uniform implementation and administration of agency rules, the NLRB has stated that its regional offices will not implement the rule pending the resolution of the issues before the court. Thus, it appears that until there is a definitive ruling on these issues, employers need not post the notice.
For more information please contact a member of our Employment Group or call 208.344.6000.