Delay of NLRB Poster Requirement

UPDATE: The National Labor Relations Board (NLRB) poster requirement was postponed due to a pending lawsuit challenging the legality of the new rule.

On April 17th 2012, the U.S Court of Appeals for the District of Columbia placed a temporary hold on the implementation of the NLRB poster requirement, which was slated for launch on April 30, 2012. The delay will remain in effect until the court resolves the pending appeal in NAM V NLRB. In NAM V. NLRB, the trial court affirmed the right of the NLRB to require both unionized and non-unionized employers to post the notice.

The Court of Appeal’s decision to review the case comes just days after the U.S District Court of South Carolina ruled that the NLRB lacks the authority to mandate the posting requirement because it is outside of the Board’s jurisdiction. Employers are not required to post the NLRB notice regarding employee rights to unionize under the National Labor Relations Act (NLRA) until further notice.

According to the NLRB, the intent behind implementing the poster requirement is to increase interest in union activity among employees. This new regulation presents an opportunity for employers to inform employees about their rights and strengthen their resolution process so that employees feel comfortable approaching management without third party involvement. Employers can publicly display the notice in areas visible to all employees, regardless of whether the workplace is unionized or union-free. Additionally, employers may distribute the notice through electronic channels including email, intranet postings, and internet message boards.

The notice can be posted in English and in any other languages spoken proficiently by 20% of the employee population (if employees are not fluent in English). The NLRB provides translations of the notice in the appropriate languages via the NLRB website. Copies of the notice are available online at http://www.nlrb.gov/ and at the NLRB’s regional offices. The NLRB Rule considers failure to comply with this federal statue as an “unfair labor practice” and if reported, may lead to an investigation by the NLRB.

The agriculture, railroad, and airline industries  are exempt from compliance because employers of these industries are not within the jurisdiction of the NLRB. Likewise, certain small businesses also are not required to post the notice depending on the annual gross revene of  the business.

Below is a list of industries that fall in the jurisdiction of the NRLB based on the annual  gross revene of the business.

Industry

Annual  Gross Revene Amount at which Employers Become Responsible for Compliance

Amusement industry

$500,000

Apartment houses, condominiums, cooperatives

$500,000

Art museums, cultural centers, libraries

$1 million

Cemeteries

$500,000

Colleges, universities, other private schools

$1 million

Communications (radio, TV, cable, telephone, telegraph)

$100,000

Day care centers

$250,000

Gaming industry

$500,000

Nursing homes, visiting nurses associations

$100,000

Hospitals, blood banks, other health care facilities including doctors’ and dentists’ offices)

$250,000

Hotels and motels

$500,000

Instrumentalities of interstate commerce

$50,000

Law firms; legal service organizations

$250,000

Newspapers (with interstate contacts)

$200,000

Nonprofit charitable institutions

Depends on the entity’s substantive purpose.

Office buildings; shopping centers

$100,000

Private clubs

$500,000

Public utilities

$250,000 or nonretail standard.

Restaurants

$500,000

Social services organizations

$250,000

Symphony orchestras

$1 million

Taxicabs

$500,000

Transit systems

$250,000

Best Practices

  • Although a record of compliance is not mandatory, it is a Best Practice solution for employers to document when, where, and how the notice was posted along with a digital photograph.
  •  Employers can also request employees to sign documentation verifying the receipt of notification.
  •  Employers can discuss the notice with management to develop a strategy on how to respond to employee questions and comments about unionization.
  •  Employers can implement an open door policy to improve communication between management and employees.

Employee Rights under NLRB Rule

  • Right to form, join, or assist labor organizations.
  • Right to self-organization.
  • Right to bargain collectively through representatives of their own choosing.
  • Right to engage in other concerted activities for the purpose of collective bargaining.
  • Right to mutual aid or protection.

Employer Rights under NLRB Rule

  • Right to express feelings about Unions with employees during designated times.
  • Right to keep Union organizers off company property and forbid Union activities during paid working time.
  • Right to prohibit Unions from using e-mail to organize employees, if all personal use of e-mail is also prohibited.
  • Right to hire permanent replacements for employees who are on strike over economic issues.
 Click to download posters

Employee Rights under NLRB Rule (Size 11x 17):  http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf

Employee Rights under NLRB Rule (Size 8.5 x 11): http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra_8_5x11.pdf

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