NLRB Final Rule Will Require Notice Posting; Action Reflects Some Changes From Proposal

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Employers covered by the National Labor Relations Act will be required to post workplace notices informing all employees of their rights under the federal labor law, beginning in November, according to a National Labor Relations Board final regulation scheduled for publication in the Aug. 30 Federal Register.

The rule (RIN 3142-AA07) will take effect Nov. 14, 2011, and will require all employers subject to NLRB jurisdictional standards to post an 11-inch-by-17-inch notice form describing employee rights, and to publish the notice on an intranet or internet site if the employer customarily uses such media to communicate with employees about rules and policies.

Consistent with the board's December 2010 proposed regulation (62 BTM 3, 1/4/11), the final rule provides that employers that fail to post the required notice will be subject to liability for committing an unfair labor practice under Section 8(a)(1) of the NLRA, and may face tolling of the NLRA's six-month statute of limitations on the filing of an unfair labor practice charge.

The board made few changes in the final rule but did drop proposed requirements for e-mailing and color printing of notices, and added language to the notice describing the right of employees under the NLRA to refrain from engaging in statutorily protected activity.

Member Brian E. Hayes, the only Republican on the board, dissented from publication of the rule. “In my view,” Hayes wrote, “the absence of an express notice provision in the NLRA, and the failure to amend the Act to include one when Congress expressly included notice posting provisions in other labor statutes, shows that it did not intend to authorize the Board to promulgate this rule.”

Stating that the proposed rule—which does not impose any reporting or recordkeeping duties on employers—would impose a minimal burden on employers, the board wrote briefly that Section 6 of the NLRA, 29 U.S.C. § 156, gives the agency authority to adopt “such rules and regulations as may be necessary to carry out the provisions of this Act.”

NLRB received more than 7,000 comments on the proposal, and the board acknowledged in the notice accompanying its final rule that a majority of the comments opposed the proposed rule or some of its features.

Several Sanctions for Employer Noncompliance

Maintaining the terms described in the rulemaking proposal, NLRB's final rule provides that an employer that fails or refuses to post the required notice would violate Section 8(a)(1) of the act, which proscribes employer action “to interfere with, restrain or coerce employees” in their exercise of rights guaranteed by the NLRA.

In most cases, the board predicted, employers will fail to post the notice only because they are unaware of the new requirements, and “when it is called to their attention, they will comply without the need for formal action or litigation.”

An unfair labor practice charge could, however, be filed against an employer that refused to comply with the rule, and NLRB's general counsel and board will be able to process the charge in the same manner as other Section 8(a)(1) allegations and seek a cease-and-desist order to prevent continuing noncompliance, as well as “additional remedies” that “may be appropriately invoked in keeping with the Board's remedial authority.”

The final rule also provides that although Section 10(b) of the NLRA, 29 U.S.C. § 160(b), generally precludes the issuance of an unfair labor practice complaint based on conduct occurring more than six months before the filing and service of an administrative charge with the agency, “the Board may find it appropriate” when an individual employee files a charge against an employer “to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.”

The final rule also provides, consistent with the board's proposal, that “[t]he Board may consider a knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue.”

Provisions on Multiple Languages

The board said in its notice of proposed rulemaking that employers with “significant numbers” of employees who lack proficiency in English should be required to post notices in the languages spoken by the workers.

In the final rule, the board provided that employers must post the mandatory notice in all areas where they customarily place notices to employees concerning personnel rules or policies. In workplaces where 20 percent of workers are not proficient in English and speak another language, the employer must provide the notice in the language the employees speak.

But if an employer's workforce includes two or more groups totaling at least 20 percent of employees who are not proficient in English, the employer must either post the NLRA notice in both languages or post the notice in the language spoken by the greater number of employees, while providing copies in the second language to employees who are not proficient in English.

Notices will be available in printed form from NLRB, or may be downloaded from the NLRB website. Notices will be available in languages other than English, and the rule provides that an employer will not be liable for failing to post a notice in a language other than English if it is not yet available from NLRB.

Employers that post notices to employees on internet or intranet pages or bulletin boards must also post the NLRA notice “no less prominently than other notices to employees.”

Initial Comment on Rule Is Divided

AFL-CIO President Richard Trumka said in a statement Aug. 25: “The rule is a responsible and much-needed step. Just as employers are required to notify their employees of their rights around health and safety, wages, and discrimination on the job, this rule gives clear information to employees about their rights under this fundamental labor law so that workers are better equipped to exercise and enforce them.”

But Fred Wszolek, spokesperson for the Workforce Fairness Institute, said, “President Obama's labor board issued another regulation on businesses that will only create additional burdens as opposed to helping employers produce jobs.”

“The truth is that the Obama Administration is led by individuals who are more interested in advancing the interests of union bosses than job creators, and today's developments offer definitive proof,” WFI asserted.

Mark Mix, president of the National Right to Work Legal Defense Foundation, also criticized the board's action. “This unprecedented rule change fundamentally changes (and expands) the NLRB from a remedial role to an agency that is involved with every workplace in the country even if no allegations of violations have occurred,” Mix said in a statement.

“If the NLRB was really interested in protecting workers, they would inform workers of the dangers of coercive ‘card check' drives and publicize their rights, under law, to remove an unwanted union instead of burdening job providers and independent-minded employees with new rules that undermine workplace freedom,” Mix argued.

By Lawrence E. Dube

Text of the final rule may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8l3lbh . An NLRB fact sheet on the rule may be accessed at http://www.nlrb.gov/node/1526 . The text of the notice that will be required by the rule may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8l3le5 .