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NLRB Issues Final Rule Requiring Employers to Post NLRA Rights Poster

Unionized and non-unionized employers subject to NLRB  jurisdiction must post an NLRA rights poster in their work places beginning  April 31, 2012. The new posting  requirement is the result of NLRB formal rulemaking finalized on August 30,  2011. The NLRB’s Final Rule can be  viewed here.

Summary of Final Rule
After receiving over 7,000 comments, the NLRB by a 3-1 vote (with Member Brian  Hayes dissenting) issued the Final Rule initially to go into effect on November  14, 2011. The NLRB later postponed the  effective date until January 31, 2012.
The poster provides a comprehensive list of employee rights under the Act,  including the right to act together to improve wages and working conditions; to  form, join and assist a union; to bargain collectively with their employer  through chosen representatives; and to refrain from engaging in any of these  activities. It also provides examples of  unlawful employer and union conduct and instructs employees how to contact the  NLRB with questions or complaints.
The notice must measure 11 x 17 inches and be posted in all locations where  employee notices typically are posted, including on a company’s intranet or  internet site if the company customarily posts personnel rules and policies on  its intranet or internet. Although the  rule has no record-keeping or reporting requirements, the NLRB may treat any  failure to post the notice as an independent unfair labor practice. Under certain circumstances, failure to post  may extend the six-month statute of limitations generally applicable to other  unfair labor practice charges.
Each NLRB regional office will provide a copy of the poster free of charge, or  employers may print it directly from http://www.nlrb.gov/poster. The NLRB will also make available foreign  language versions of the notice, which are required at workplaces where at  least 20% of employees are not English-proficient.
Federal contractors that already need to post the similar U.S. Department of  Labor notice pursuant to Executive Order 13496 will be deemed to be in  compliance with the NLRB’s Final Rule.

Union Perspective
The NLRB’s Final Rule requiring posting is a common sense approach to ensuring  that employees are aware of their rights under the NLRA, and is a reasonable  exercise of the Board’s express statutory authority to promulgate regulations  that carry out the Act. As is noted in the  Final Rule, multiple studies have concluded that employees are largely unaware  of the rights afforded to them by the NLRA. 76 FR 54006 (Aug. 30, 2011). Long ago, the DOL concluded that “the posting  of notices…in establishments where covered employees are employed is a  necessary adjunct to proper enforcement of the statutory provisions”  (referencing the FLSA posting requirements).  14 FR 7516 (Dec. 16, 1949).
Because the NLRA is enforceable only through charges filed  by individuals and organizations, the Board must rely on an informed workplace  to properly enforce protections provided by the Act. Further, the NLRB has no authority to monitor  a workplace to determine compliance, nor may it initiate enforcement of the Act  unless and until a charge is filed.  Simply put, if employees are unaware of their rights, the Act cannot be  enforced.
Finally, it should be noted that the Final Rule simply requires posting a piece  of paper on a wall. In their workplaces,  employers are presently required to post information pertaining to a host of  statutory employee rights: OSHA, FMLA,  EEOC, FLSA, etc. Compliance with the Final  Rule is hardly burdensome; it is unlikely to take more than two minutes to  print the notice from the NLRB’s website (for free) and tack it up next to  other employee notices.

Management Perspective
The NLRB’s Final Rule is improper and unnecessary. The arguments against it are well-articulated  in the lawsuits filed against the NLRB in September by the United States  Chamber of Commerce, National Association of Manufacturers, and National Right  to Work Legal Defense and Education Foundation.  See Chamber of Comm. of the U.S. of Am. v. NLRB, 2:11-cv-02516-DCN  (D.S.C.); National Ass’n of Mfgs. v. NLRB, 1:11-cv-01629-ABJ (D.D.C.); National  Right to Work Legal Defense and Education Fdn. v. NLRB, Case No.  1:11-cv-01683-ABJ (D.D.C.).

In sum, the Final Rule improperly:

  • exceeds the NLRB’s authority.  Nothing in the statutory text gives the NLRB the authority to require  employers to post a notice of NLRA rights.
  • violates the First Amendment. The poster constitutes compelled employer  speech, and the First Amendment protects a private employer’s right not to  speak. The rule is further contrary to  employer’s speech rights under Section 8(c) of the NLRA, 29 U.S.C. § 158(c).
  • may make an employer’s failure to post an unfair labor  practice charge and toll the statute of limitations.
  • Nothing in the statutory text gives the NLRB  the authority to create or to extend the statute of limitations period beyond  that stated in Section 10(b) of the NLRA, 29 U.S.C. § 160(b).
  • is arbitrary and capricious under the Administrative  Procedure Act. The NLRB failed to  consider contrary evidence or legal and economic policy considerations or to  articulate a rationale basis for not addressing that evidence or those  considerations. Among those  considerations the NLRB did not properly address are unionized employees’  rights in right-to-work states. The NLRB  further relied on insufficient empirical data, anecdotal, and outdated,  localized studies in adopting the rule.
  • fails to complete a full regulatory flexibility analysis. The NLRB’s analysis was incomplete and understated  economic impact on small entities.

Notably, the House Appropriations Committee has proposed a rider to the NLRB’s  2012 budget that, if passed, would prohibit the NLRB from allocating any  portion of its budget toward enforcement of the rule.

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