Federal Court Upholds the NLRB Notice Requirement
On September 1, 2011, we sent you an update discussing the new NLRB requirement that employers post a unionization rights notice on their bulletin boards. The text of that original update is set out below. The original due date for the posting was November 14, 2011. On October 5, 2011, however, the NLRB moved the posting due date to January 31, 2012. On December 23, 2011, due to an on-going legal challenge to the notice requirement, the NLRB postponed the due date to April 30, 2012.
Last Friday, a federal court in the District of Columbia upheld the notice requirement. Therefore, unless another court rules that the notice requirement is invalid, or unless the NLRB again postpones the due date, April 30, 2012 remains the date by which employers must post the notice.
Although the federal court upheld the notice requirement, it also ruled that the NLRB could not – as it intended to do – automatically consider the failure to post the notice to be an unfair labor practice or automatically extend the statute of limitations for filing an unfair labor practice charge. The federal court, however, limited this holding by noting that a failure to post can be considered by the NLRB on a case by case basis to be evidence of an unfair labor practice and also a factor to consider when determining whether the statute of limitations should be extended.
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Employers! Add another extension to your bulletin board. Your federal government has brought you another notice for you to post in the workplace. Just like the DOL, the EEOC, OSHA, etc., the National Labor Relations Board now says you must post a notice informing your employees of their right to have a union at your workplace.
On August 30, the NLRB posted its final rule in the Federal Register. This makes it official. When the rule becomes effective on November 14, 2011 [now changed to April 30, 2012], you will have to display an 11x17 inch notice explaining the rights of employees to bargain collectively, to give out union literature, and to work together to improve wages and conditions of employment without fear of retaliation. It will also explain how and where to file charges with the NLRB.
In promulgating this notice posting requirement, the NLRB said that the new regulation was intended to make it easier for workers to exercise their rights under the National Labor Relations Act. As support for its decision, the NLRB cited the low percentage of unionized employees in the private sector as evidence that employees are unaware of their rights.
Starting in January, the NLRB will provide copies of the notice through its website at www.nlrb.gov. If you normally post notices to your employees about personnel matters on an internet or intranet site, you will be required to post the notice there as well as on a bulletin board. The NLRB dropped its initial proposal to have employers send the notice to employees by e-mail.
The rule provides that failure to post the notice may be an unfair labor practice, may be evidence of unlawful motivation in a discharge case, and may toll the six-month statute of limitations for filing charges claiming violations of the Act.
This rule has no effect on the right of employers to communicate with their employees in a lawful manner to express their opposition to and views about unions which is guaranteed by the statute. Nor does it have any effect on the existing rules about preventing solicitations and distributions in the workplace. But these rules are very technical. It is now essential that you have well-crafted solicitation and distribution rules in place before November 14, 2011 [now changed to April 30, 2012], and that you and your managers are fully aware of what you can and cannot tell employees about unions and do to combat a union organizing effort.
This new posting requirement, combined with the NLRB's proposed rules for drastically speeding up the time involved in a union election, is further evidence of the NLRB's effort to make unions more relevant to the American workplace. It is imperative that employers not only become more familiar with NLRB rules and procedures, but that you examine your workplaces to determine whether there are issues that might breed an interest among your employees in third party representation.