December 23, 2011
The National Labor Relations Board ("NLRB") has promulgated a new rule, 76 Fed. Reg. 54006 (Aug. 30, 2011) (to be codified at 29 C.F.R. pt. 104), requiring employers to post and maintain a notice of employee rights under the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151–169. The rule was originally scheduled to take effect on November 14, 2011, but on December 23, 2011, the NLRB announced that it would postpone the effective date until April 30, 2012. Pursuant to this rule, an employer who falls under the NLRB's jurisdiction must post a notice of employees' rights to organize a union and bargain collectively with the employer. The rule also sets out the size, form, and content of the notice and contains enforcement provisions. According to the NLRB, the rule is needed because employees are not aware of their union rights under the NLRA, and the rule will increase awareness to allow employees to effectively exercise those rights. See 76 Fed. Reg. at 54006.
The rule applies to any employer covered by the NLRA. Those employers who are excluded from coverage under the NLRA are not subject to the rule, including the federal government, any state or political subdivision, any person subject to the Railway Act, and any labor organization (other than when acting as an employer). As to retail businesses, including home construction, the NLRB will assert jurisdiction over employers that have a gross annual volume of business of $500,000 or more. For nonretail businesses, the standard is based upon either the amount of goods sold or services provided by the employer out of state, or the goods or services purchased by the employer from out of state. Jurisdiction attaches to an employer that has an annual inflow or outflow of at least $50,000. The rule also sets out a table categorizing certain employers and the required amounts of annual gross volume of business required to meet NLRB jurisdiction. See 29 C.F.R. § 104.204 tbl.
The NLRB will provide at no cost to employers the actual form notice, entitled "Employee Rights under the National Labor Relations Act," to be posted at workplaces. Id. § 104.202. The notice must be 11 inches by 17 inches and may be printed in black and white. The notice must be displayed conspicuously in a place where the employer customarily posts such notices. If the employer has an intranet or Internet website on which personnel rules or policies are customarily posted, the employer must also post the notice there. In addition, if at least 20% of the employees are not proficient in English, the notice must be posted in the language that those employees speak.
The rule sets out the content that must be included in the notice, informing employees that they have the right to organize a union to negotiate with the employer concerning wages, hours, and other terms and conditions of employment; to form, join, or assist a union; to bargain collectively with the employer for wages, benefits, hours, and other working conditions; to discuss wages and benefits and other terms and conditions of employment or union organizing with coworkers or with a union; to take action with one or more coworkers to improve working conditions; to strike or picket, depending on the purpose or means of the strike or picketing; and to choose not to do any of the activities, including joining or remaining a member of a union.
The rule further sets forth illegal conduct by the employer, including prohibiting employees from talking about or soliciting for a union during nonwork time; questioning employees about union support or activities in a manner that discourages them from engaging in that activity; firing, demoting, or transferring employees because of their support of, or membership in, a union; and threatening to close the workplace if workers choose to join a union. The rule also sets out unlawful conduct by the union, including threatening or coercing employees; refusing to process grievances because of an employee's criticism of a union; and taking adverse action against an employee because he or she has not joined or does not support the union. See id. subpt. A app. Employees must be informed that if they believe their rights have been violated, they must file a complaint generally within six months of the unlawful conduct. See id.; see also 29 U.S.C. § 160(b).
A significant aspect of the rule is that an unfair-labor-practice finding may be made against an employer for the employer's failure to post the notice. Although the NLRB states that most failures to post the notice will be inadvertent and may be informally remedied, the NLRB has the right to bring formal charges against the employer for unfair labor practices. 29 C.F.R. § 104.210. The NLRB asserts that an employer's failure to post the notice may be considered interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under the NLRA. Furthermore, the six-month statute of limitations under the NLRA may be tolled in other unfair-labor-practice actions based on the employer's failure to post the notice. Id. § 104.214(a). Tolling will not apply, however, if the employee had actual or constructive notice that the employer's conduct was unlawful. Id. Significantly, if an employer's failure to post the notice is deemed to be knowing and willful, it may be used as evidence of motive in cases in which motive is an issue. Id. § 104.214(b).
Noting that union membership has declined significantly, the NLRB contends that employees are not organizing or joining unions because they are not aware of their NLRA rights and that the notice will increase their awareness. See 76 Fed. Reg. at 54006. The rule is controversial, and employer groups and members of Congress have questioned the NLRB's statutory authority to enact it. Other federal Acts, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-10, the Age Discrimination in Employment Act, 29 U.S.C. § 627, and the Family and Medical Leave Act, 29 U.S.C. § 2619(a), expressly require employers to post the notices. However, the NLRA is silent on that issue. The Society for Human Resources Management ("SHRM") opposed the rule, maintaining that the NLRB had exceeded its authority. Furthermore, the NLRB is expressly creating a new unfair labor practice for failure to post the notice, a task that, SHRM maintains, should be left to Congress through legislation. Because the six-month statute of limitations may now potentially be tolled by the NLRB in any unfair-labor-practice charge against an employer if the employer has failed to post the notice, such tolling could subject employers to unfair-labor-practice claims that were previously barred. Legislation has been proposed that would reverse the NLRB's August 30 decision. H.R. 2833, 112th Cong. (Sept. 1, 2011); see http://thehill.com/blogs/floor-action/house/179513-quayle-bill-would-reverse-nlrb-requirement-to-post-employee-rights.
The NLRB will have the notice available for download on its website, http://www.nlrb.gov/poster, by November 1, 2011. Employers may also request a copy of the notice by contacting the NLRB at 1099 14th Street, N.W., Washington, DC 20570, or by contacting one of the NLRB's regional, subregional, or resident offices. 29 C.F.R. § 104.202(e).