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NLRB Final Rule Requires Posting of Employee Rights Under the NLRA

Posted by Attorney David McClurg in Labor Relations / Comments

Despite strong objections from the buiness community, the NLRB has issued a Final Rule requiring that both union and non-union employers post an extensive Notice advising employees of their rights under the National Labor Relations Act.  The specific language to be included in the Notice, which must be posted by November 14, 2011, is set out in  the Rule.  Among other things, the Rule requires advising employees that they have the right under the NLRA to:

  • Organize, join or assist unions;
  • Bargain collectively on issues regarding wages and working conditions;
  • Discuss the terms and conditions of employment with co-workers;
  • Take action with co-workers to improve working conditions; and
  • Strike or picket the employer.

The size (11" x 17") and required posting locations of the Notice are also defined by the Rule.  In addition to a conspicuous location within the workplace, employers must post this Notice on their internet or intranet sites if the employer typically posts other company policies on such sites.

While posters containing this Notice will be commercially available from a variety of vendors in short order, copies will also be available from the NLRB Regional offices and the NLRB website at no charge beginning on November 1, 2011.  Translated versions will also be available and must be used at workplaces where at least 20% of the employees are not proficient in English.

In the Preamble to the Rule, the Board expressed the view the Rule is need because too many employees are not aware of their rights under the NLRA.  It based this conclusion on concerns that: 1) a "comparatively small percentage" of private-sector employees are unionized; 2) the workforce includes a "high percentage of immigrants" who are "likely to be unfamiliar" with U.S. workplace rights; and 3) employers are not currently required to inform employees about their NLRA rights.

This rule, was passed over the objection of the remaining Republican appointee on the board who argued that the National Labor Relation Act does not authorize the Board to require such notices, and fits in with a rise in NLRB activism on a number of fronts.  Far from being a neutral explanation of employee rights under Section 7 of the NLRA (as suggested by the majority of the board,) the requried Notice provides specific examples of protected conduct that employees may engage in and actions that employers are prohibited from taking.  It clearly appears that the Obama appointees have dusted off rule-making powers not used by the Board since the late 1980s to circumvent Congress and impelment labor law reform in a piecemeal fashion.  It is widely expected that the finalization of this Rule requiring posting of employee rights is a precursor to implementation of a pending proposed rule allowing for expedited "quickie" union elections.