NLRB Requires Notice Posting by NLRA-Covered Employers

This post was written by Eugene K. Connors, William Bevan III, and Joel S. Barras.

The National Labor Relations Board has adopted a Rule that, effective November 14, 2011, requires all employers covered by the National Labor Relations Act (“Act”) to post a notice notifying employees of their rights under the Act. This requirement will apply to some six million private-sector employers, but not agricultural, railroad, airline and very small employers. The Rule is to inform employees -- both unionized and non-unionized -- of their rights under the Act, similar to posting requirements under the FLSA, FMLA, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. 

The Notice states 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 refrain from any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees on how to contact the NLRB with questions or complaints.

The Rule requires employers to post an 11-by-17-inch poster in a conspicuous location seen by all employees in the workplace, such as where notices concerning personnel rules or policies are customarily posted. Employers will be able to download the notice from the Board’s website (www.nlrb.gov) and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together.

Beyond physical posting, the Rule requires every covered employer to post the Notice on an Internet or Intranet site, to the extent that personnel and policies are customarily posted electronically. There is no requirement, however, to distribute the posting by email or other electronic means, as originally proposed by the NLRB. Further, if at least 20 percent of an employer’s workforce is not proficient in English, the Notice must be posted in English and the other language(s) spoken by the employees.

Finally, the Rule goes beyond a simple notice-posting requirement to specify penalties for noncompliance. Included among the penalties are:  (1) a finding of an unfair labor practice, accompanied by a cease and desist order; (2) tolling of the six-month statute of limitations under the Act for filing unfair labor practice charges, unless the employee filing the charge has “actual or constructive notice that the conduct in question is unlawful;” and (3) treating a willful refusal to post the notice as evidence of an unlawful motive in other unfair labor practice cases where motive is an issue. 

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