Legal Alerts

National Labor Relations Board Makes Failure to Post Employee Rights an Unfair Labor Practice


As part of its ongoing effort to assist employees in organizing unions, the National Labor Relations Board (NLRB) issued a final rule that will require employers to notify employees of their rights under the NLRA, making failure to post the notice an unfair labor practice. The Board has published a fact sheet answering pertinent questions on the final rule.

Who is Required to Post Notice? 
Nearly all private-sector employers will be required to post the employee rights notice in a location where the employer typically posts other workplace notices; agricultural, railroad and airline employers are excluded from this requirement. In addition, the rule requires employers who post notices to employees regarding personnel policies on an internet or intranet site to post the Board’s notice on those sites. Foreign language postings are required in certain circumstances. 

What Does the Notice Say? 
The notice will become available on November 1, 2011 on the Department of Labor (DOL) website. Lindquist & Vennum will post a link on our website as soon as it is available. The Notice must be posted by November 15, 2011

The notice must state 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 fellow employees; to take action with those fellow employees to improve working conditions; and to strike and picket. The notice also informs workers that they have the right to refrain from any of these activities. 

The notice offers examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. The list of employer unfair labor practices includes prohibiting employees from using non-work time to solicit for, or distribute materials on behalf of, a union in non-work areas such as parking lots or break rooms; interrogation about union activities; discipline based upon union activity or support; and threats to close a workplace over a decision to unionize. 

Is the Notice Required if the Workforce is Non-Union? 
Yes, the NLRB noted that many employees are unaware of their rights, based on the “comparatively small percentage” of unionized private-sector employees, the “high percentage of immigrants,” who are “likely to be unfamiliar” with U.S. workplace rights, and the absence of a requirement that, except in very limited circumstances, employers or anyone else inform employees about their NLRA rights. 

Why Did the NLRB Decide to Require This? 
The NLRB determined “the potential benefit of a notice posting requirement outweighs the modest cost to employers,” determining that the workplace would be the most appropriate place for communicating workers basic rights. 

What Are the Penalties for Not Posting the Notice? 
Employers who fail to post the notice will be found to have committed an unfair labor practice under Sec. 8(a)(1) of the Act, specifically: interference with, or attempt to restrain or coerce employees in, the exercise of their rights under the Act. The NLRB concluded that, because it is supplying the required notice at no charge, the burden of compliance on employers will be minimal.

If you have questions about whether your business is required to post this notice or about employee’s Section 7 rights, contact Nancy Vollertsen, or a member of Lindquist & Vennum’s Employment Law and Employee Benefits Practice Group.

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