The NLRB has joined most other major labor and employment federal agencies in requiring mandatory posting in the workplace concerning the rights of employees under the National Labor Relations Act. The posting requirement begins November 14, 2011. The notice states that employees have the right to form, join and assist a union, to bargain collectively with their employer, to strike and to refrain from any of these activities. The notice also provides examples of unlawful employer conduct, including questioning employees about union activity, prohibiting employees from talking or soliciting for a union during non-work time, or discrimination against union supporters. Union unfair labor practices are also referenced in the notice, including the maintenance of discriminatory standards or procedures when making job referrals.
The failure to post the mandatory notice may be the basis for an unfair labor practice charge and can be used to toll (extend) the normal six month statute of limitations for filing unfair labor practice charges. The notice must also be in languages other than English when at least twenty per cent of the workforce is not proficient in English. The final rule retreated from the proposed rules requirement that the notice be e-mailed or sent by other electronic means to employees. Employers are not required to send the notice by electronic means unless the employer customarily communicates with employees in this manner.
The Board based its action on a finding that many employees were not aware of their statutory rights. The proposed rules were greeted with a barrage of criticism from employer groups who claimed that the NLRB had no authority to mandate postings of this nature, that mandatory posting was unconstitutional, and that the intent was to increase union density.
The mandatory posting requirement is an important step towards informing workers of their rights. It is likely that the inevitable legal challenges will fail. The end result will not be a rush to form unions, but it is a positive step, long overdue.
You may also access https://www.nlrb.gov for further information on this mandatory posting requirement.
* This posting is guest-authored by Brian A. Powers. Mr. Powers is a partner in the law firm of O’Donoghue & O’Donoghue, L.L.P., in Washington, D.C. He practices labor and employment law.