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Client Alert from the Labor and Employment Group - August 2011

Employers Now Required to Post Notice of

Employee Rights to Join a Union

After concluding that too many employees were unaware of their rights under the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) announced its final rule regarding notification of employee rights on August 25, 2011. The rule will take effect on November 14, 2011. The primary goal of the rule is to notify employees of their rights under the NLRA.

Application of the Rule: The new rule applies to all private-sector employers, including labor unions (when acting as employers), subject to the NLRA. Even if there is no union in a workplace, the employer is still required to post the Notice because NLRA rights apply to union and non-union workers. There are a few exceptions. The rule does not apply to the United States or any wholly-owned government corporation, any State or political subdivision thereof, as well as agricultural, railroad, and airline employers. The rule also does not apply to small businesses over which the NLRB lacks jurisdiction due to their small volume of business and/or negligible effect on interstate commerce.

Content of the Notice: Under the rule, employers are required to post a notice that indicates 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 other employees, to take action with other employees to improve working conditions, and to strike and picket. The Notice must also state that employees have the right to decline participation in any of the aforementioned activities. Additionally, the Notice must include a non-exhaustive list of employer unfair labor practices and unlawful union conduct. The Notice also must include NLRB contact information and information regarding basic enforcement procedures. The rule contains no information regarding collection, record keeping, or reporting requirements.

Posting the Notice: The Notice must be posted in a conspicuous area where other employee notices are posted. If an employer customarily communicates with employees about personnel matters via an intranet or internet site, the Notice must be posted by such means as well. The NLRB will make the Notice available on or before November 1, 2011, through the NLRB's Washington, D.C. and regional offices, or it may be downloaded from the NLRB website. Should an employer elect to download the Notice, it must ensure that the Notice complies with the size and form requirements under the rule, i.e., at least 11 inches by 17 inches in size.

Failure to Comply: Employers failing to post the Notice may be found to have committed an unfair labor practice by interfering with or attempting to restrain or coerce employees in the exercise of their rights under the NLRA. Failure to post may also toll the statute of limitation to file ULP charges for acts allegedly committed during the period in which the employer failed to post the Notice. The NLRB will not conduct any independent investigations regarding posting requirements, but an investigation will be triggered when an employee files a ULP charge alleging an employer's failure to post the Notice.

What the Notice Means for Employers: In direct response to this rule, covered employers should post the required Notice and document the specific date it was posted and locations of posting. However, this rule reflects a larger concern for employers.

In the bigger picture, the NLRB continues to be aggressive in advancing the causes of organized labor, which in turn has motivated a renewal of union activism. Given these developments, it is critical that employers consider the following steps to counter increased union activities: (1) brush the dust off those policy manuals and ensure that your solicitation and distribution, use of technology and other policies are updated and address social media concerns; (2) review the company's position on unions with employees and review the company's approach on addressing grievances and employee workplace concerns; and (3) train supervisors and managers to identify and address union activity in its earliest stages, while ensuring such responsive actions comply with the law.

The Labor and Employment attorneys at Walter & Haverfield LLP are available to assist with labor relations issues, including the new Notice compliance procedures and any posting-related issues.