UPDATED CLIENT ALERT / NLRB Ruling RE Posting of Rights Print

STOP THE POSTING! Yesterday, National Labor Relations Board Chairman Mark Gaston, citing conflicting district court opinions culminating in the DC Circuit Court of Appeals temporarily enjoining the new posting requirement, announced that in the interest of uniform application of the “employee rights posting” the Board “will not implement the rule pending the resolution of issues before the court”. The US District Court in South Carolina held that the NLRB lack the authority to promulgate the rule while the D.C. District Court found the Board had such authority but raised questions regarding enforcement mechanisms.

INFORMATION BELOW WAS POSTED PRIOR TO THE ABOVE RULING:

Effective April 30, 2012, all employers subject to the National Labor Relations Board’s jurisdiction will be required to post a Notice to employees of their rights under the National Labor Relations Act.  See Title 29 C.F.R. Part 104.201 et seq. The Notice, which “shall be at least 11 inches by 17 inches by size and in such format, type size, and style as the Board shall prescribe”, can be accessed at http://www.nlrb.gov/poster.  In addition to the size requirement (which can either be downloaded in an 11x17 inch format, or with two 8x10 documents that need to be cobbled together), the Notice must be posted in “conspicuous places” (where your other employment-related posters are posted).  If 20% or more of the employers’ workforce are not proficient in English and speak a language other than English, the Notice must be posted in the language that employees speak, and the above website has non-English speaking posters available for downloading (if the language the employer needs is not available on the NLRB website, but the employer has requested from the Board a Notice in that particular language, “the requesting employer will not be liable for noncompliance with this rule until the Notice becomes available in that language).

The purpose of the above rule and Notice requirement was based on the NLRB’s belief that “many employees protected by the NLRA are unaware of their rights under the statute and the rule will increase knowledge of the NLRA among employees in order to better able the exercise of rights under the statute”. 

The poster itself is broken down into three general categories:

First, employees’ rights Under the NLRA are specifically enumerated, including organizing a Union, forming, joining, or assisting a Union, bargaining collectively, discussing wages and benefits and other terms and conditions of employment or Union organizing with co-workers or Union, taking action with one or more co-workers to improve working conditions including raising work-related complaints directly to an employer or governmental agency and seeking the help of the Union, striking and picketing depending on the circumstances, and choosing not to engage in any of these activities.  

Second, the poster also outlines specific conduct that is “illegal” for an employer to engage in under the NLRA, including prohibiting an employee from talking about or soliciting for a Union during non-work time in non-work areas, questioning an employee about an employee’s Union support or activities in a manner that discourages an employee from engaging in lawful concerted activity, firing, demoting or transferring or otherwise taking an adverse action against an employee because that employee engaged in concerted activity, threatening to close the workplace if employees choose a Union to represent them, any promise or grant of promotion and other benefits to discourage or encouraging Union support, any prohibition from wearing Union hats, buttons, t-shirts, and pins in the workplace (except special circumstances), or surveillance on peaceful Union activities. 

The last category involves conduct that is illegal for a Union to undertake under the NLRA including threatening or coercing an employee to gain support for a Union, refusing to process a grievance because the employee has criticized Union officials, using/maintaining discriminatory standards or procedures in making job referrals to the hiring hall, influencing an employer to discriminate against an employee because of Union-related activity, or taking adverse action against an employee because they have not joined and/or do not support the Union. 

The poster contains information that an aggrieved employee can utilize to contact the NLRB. 

The poster itself references that it is an “official government notice and must not be defaced by anyone” and of course the rule imposes on the employer the obligation to make sure that the posters are not defaced. 

Failure to post the Notice may be deemed an unfair labor practice by interfering with, restraining or coercing employees in the exercise of their rights under the NLRA.   

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at TMF to discuss this or any other legal matter.

 

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