On August 25, 2011, the National Labor Relations Board ("NLRB") issued a final rule that will require all employers under its jurisdiction to post an 11-by-17-inch notice form by November 14, 2011, describing employee rights under the National Labor Relations Act ("NLRA"). Employers must also post the notice form on an internet or intranet site if the employer uses such a site to communicate with employees about workplace policies. Because of the broad jurisdiction of the NLRA, virtually all employers will be required to comply with this rule.
The NLRB will provide the content of the notice on its website by November. However, the content will be similar to the notice that is already required of federal contractors. Employers must post the notice in English and another language if 20 percent of employees are not proficient in English and speak the other language.
Failure to post the notice will constitute an unfair labor practice in violation of Section 8(a)(1) of the NLRA. Section 8(a)(1) prohibits employer conduct which interferes with, restrains or coerces employees in exercising their rights under the NLRA. The NLRB could seek an order requiring compliance, as well as other remedies that could affect representational case proceedings. The NLRB also may use the failure to post the notice to toll the statute of limitations and as evidence of unlawful motive in other unfair labor practice proceedings.
The NLRA permits employers to express their opinion regarding unionization as long as they do so in a non-coercive manner. Therefore, employers who feel the required NLRB notice may be too one-sided are permitted to post another notice with the employers' opinion on why employees do not need to have a union, as long as the additional notice is not coercive.