NLRB Postpones Implementation of Final Rule Requiring Employers to Post NLRA Rights Poster until April 20, 2012

Unionized and non-unionized employers subject to NLRB jurisdiction must post an NLRA rights poster in their work places beginning January 31, 2012. The new posting requirement is the result of NLRB formal rulemaking finalized on August 30, 2011.

After receiving over 7,000 comments, the NLRB by a 3-1 vote (with Member Brian Hayes dissenting) issued the Final Rule initially to go into effect on November 14, 2011. The NLRB later postponed the effective date until January 31, 2012.

The poster provides a comprehensive list of employee rights under the Act, including the right to act together to improve wages and working conditions; to form, join and assist a union; to bargain collectively with their employer through chosen representatives; and to refrain from engaging in any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The notice must measure 11 x 17 inches and be posted in all locations where employee notices typically are posted, including on a company’s intranet or internet site if the company customarily posts personnel rules and policies on its intranet or internet. Although the rule has no record-keeping or reporting requirements, the NLRB may treat any failure to post the notice as an independent unfair labor practice. Under certain circumstances, failure to post may extend the six-month statute of limitations generally applicable to other unfair labor practice charges.

Each NLRB regional office will provide a copy of the poster free of charge, or employers may print it directly from http://www.nlrb.gov/poster. The NLRB will also make available foreign language versions of the notice, which are required at workplaces where at least 20% of employees are not English-proficient.

Because the NLRA is enforceable only through charges filed by individuals and organizations, the Board must rely on an informed workplace to properly enforce protections provided by the Act. Further, the NLRB has no authority to monitor a workplace to determine compliance, nor may it initiate enforcement of the Act unless and until a charge is filed. Simply put, if employees are unaware of their rights, the Act cannot be enforced.

Finally, it should be noted that the Final Rule simply requires posting a piece of paper on a wall. In their workplaces, employers are presently required to post information pertaining to a host of statutory employee rights: OSHA, FMLA, EEOC, FLSA, etc. Compliance with the Final Rule is hardly burdensome; it is unlikely to take more than two minutes to print the notice from the NLRB’s website (for free) and tack it up next to other employee notices.

(From the American Bar Association Section of Labor and Employment Law)

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