Concluding that “many employees protected by the NLRA are unaware of their rights under the statute,” the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf.  As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content and size of which has tentatively been decided to be the same as the notice currently required to be posted by federal contractors.pdf pursuant to Executive Order.  The NLRB says it will make the notice available at no cost to employers who will be able to get it from the NLRB offices or electronically through the NLRB’s website.

There is no recordkeeping requirement; however, failure to post a notice would be considered an unfair labor practice.  Although the Board has indicated such a violation would be technical, in reality a failure to post could have serious implications.  As the Board noted in its FAQs on this issue:

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent.  In such cases, the unfair labor practice cases will be closed without further action.  The Board may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willingly fails to post the notice, the failure may be considered evidence of unlawful motivation in an unfair labor practice case involving any other alleged violations of the NLRA.

Although unstated, the failure to post could have serious consequences in representation campaigns and elections as well.  As we previously noted, the NLRB has held that an overbroad handbook provision could result in the results of an representation election being overturned, even when there is no evidence the employees even were aware of it.  The same reasoning would apply here:  a violation of the law, even a technical and arguably inconsequential one, could be deemed enough to overturn an election.

Overall, the rulemaking itself is not terribly surprising.  The NLRB received 7,034 comments (some of which it acknowledges were counted twice because they were filed electronically and by mail), which, in today’s labor relations climate, ran along the spectrum of “You should do more” to “You can’t do it because it you don’t have the authority.”  Weighing in at 194 pages, the bulk of the final rule is made up of the NLRB discussing the comments it received.  For example:

The contention that the right to refrain from union activity is “buried” in the list of affirmative rights or that the Board is biased in favor of unionization because of the choice of placement is with out merit.  The list of rights in the proposed notice is patterned after the list of rights in Section 7 of the NLRA. . .

The takeaways for employers:

  • Unless successfully challenged, the notice must be posted as of November 14, 2011.
  • The notice must be posted where other notices for employees are customarily posted.  If the employer makes such notices available on an intranet, it must do so in this case as well.
  • There is no recordkeeping requirement, but failure to post is an unfair labor practice.
  • The failure to post could have implications on other unfair labor practice situations and representation elections.
  • The notice must be posted even in places where a union is already in place.
  • Post it.  It is not worth the hassle to not do so.

 

 

 

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

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