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Board issues final rule requiring posting of NLRA rights; failure to post notice will constitute unfair labor practice

August 26th, 2011  |  Deborah Hammonds

The NLRB announced on August 25, that it has issued a final rule that will require employers to notify employees of their rights under the NLRA and that makes a failure to post the notice an unfair labor practice. The rule will be published in the Federal Register on August 30 and will take effect January 31, 2012. The Board has published a fact sheet answering pertinent questions on the final rule.

Under the final rule, nearly all private-sector employers (including labor organizations) will be required to post the employee rights notice in a location where the employer typically posts other workplace notices; agricultural, railroad and airline employers are excluded from this requirement. In addition, the rule requires employers who as a matter of custom post notices to employees regarding personnel rules or policies on an internet or intranet site to post the Board’s notice on those sites. The notice will become available on, or before, November 1, 2011.

Practitioner reacts. W.V. Bernie Siebert, who represents employers as a partner in the Denver firm Sherman and Howard, LLC, and is a member of the CCH Employment Law Daily advisory board, is among the management-side practitioners who have questioned the need for the notice requirement.

“The Board has sought to sell this notice-posting idea to the public as being nothing more than what the Department of Labor requires with respect to minimum wages and overtime. However, this required notice goes far beyond merely stating the basic Section 7 rights of the employees. It provides specific examples of protected conduct that employees may engage in and what actions an employer is prohibited by law from taking,” notes Siebert. “There are also some token statements about what actions a union is prohibited from doing.”

“If all the Board really wanted to do was to mimic the Department of Labor, all that would have been necessary was a posting stating Section 7 rights. Once again, the Board is using rulemaking to circumvent Congress and to implement labor law reform in a piecemeal fashion,” Siebert contends. “This of course is only the precursor to the expedited election rules, which will be announced in the near future.”

Notice informs workers of NLRA rights. The notice, which is similar to the notice that the DOL requires federal contractors to use, states that employees have the right to organize, form, join or assist a union, to bargain collectively to improve wages and working conditions, to discuss terms and conditions of employment with fellow employees, to take action with those fellow employees to improve working conditions, and to strike and picket. The notice also informs workers that they have the right to refrain from any of these activities.

In addition, the notice offers examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. The nonexhaustive list of employer unfair labor practices includes prohibiting employees from using nonwork time to solicit for, or distribute materials on behalf of, a union in nonwork areas such as parking lots or break rooms; interrogation about union activities; discipline based upon union activity or support; and threats to close a workplace over a decision to unionize. Among the union unfair labor practices listed in the final rule are threats to job security for employees who choose not to join a union; refusals to process grievances of union critics or nonmembers; and coercing employer discrimination against nonunion members.

The most significant differences between the final and proposed rules are the removal of a proposed requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner and a clarification of the rule’s requirements for posting notices in foreign languages.

The Board, in its preamble to the rule, explained the reason underlying the notice requirement. The Board noted that too many employees are unaware of their rights, based on the “comparatively small percentage” of unionized private-sector employees, the “high percentage of immigrants,” who are “likely to be unfamiliar” with U.S. workplace rights, and the absence of a requirement that, except in very limited circumstances, employers or anyone else inform employees about their NLRA rights. Ultimately, in deciding to issue the final rule, the Board found that “the potential benefit of a notice posting requirement outweighs the modest cost to employers.” The Board further reasoned that the workplace would constitute the most appropriate place for communicating to workers their basic rights as employees.

Employers who fail to post the notice will be found to have committed an unfair labor practice under Sec. 8(a)(1) of the Act, specifically: interference with, or attempt to restrain or coerce employees in, the exercise of their rights under the Act. The Board concluded that, because it is supplying the required notice at no charge, the burden of compliance on employers will be minimal.

In crafting the final rule, the NLRB received and considered 7,034 comments, the majority of which opposed the rule, although many comments favored it. The Board addressed many of the comments in the final rule, including the criticism that the NLRA does not specifically call for the posting of a rights notice. The Board acknowledged the lack of such a statutory requirement but noted that judicial caselaw indicates that Congress wanted to give the NLRB the latitude to fill that gap. Additionally, nothing in the legislative history of the NLRA indicated that Congress did not want to allow such a notice.

Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, and Member Brian Hayes dissented. Hayes specifically objected to making a failure to post the notice an unfair labor practice, a “burden” that Hayes contends will affect as many as six million employers. Hayes found that that the Board’s rulemaking authority does not encompass the creation of so expansive a rule and that, even if it did, the rulemaking was arbitrary and capricious, as it was not based on “substantial evidence” or a “reasoned analysis.”