None of the various legal challenges to the controversial NLRB posting rule have yet been effective. As things stand now, with only a few very narrow exceptions, all employers will be required as of April 30 to post a notice in the workplace advising employees of their rights regarding unions and their rights to discuss wages and other working conditions with co-workers (see our previous blog posts: "NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights," and "NLRB Posting Requirement Delay - New Date January 31, 2012.") As we reported recently, the federal court for the District of Columbia upheld the NLRB's right to require the posting. The District Court Judge also rejected a request for a temporary delay (injunction) on the posting requirement while the case is appealed. That means that unless the Appellate Court either issues an injunction or issues a decision between now and April 30 reversing the lower court, the posting requirement will go into effect as scheduled. There is another legal challenge to the posting rule pending in a federal District Court in South Carolina, but no decision has been issued in that case and there is no reason to expect one will be issued before April 30.
The poster is available on the NLRB's web site at www.nlrb.gov. Also, various businesses which offer reproductions of government-required employment postings have already developed products that incorporate the new NLRB posting.
The poster is titled "Employee Rights Under the National Labor Relations Act." It must be posted at all workplaces in conspicuous locations and must be no smaller than 11" x 17". The NLRB also requires employers to include a link to the poster on internal or external web sites if other employment policies are posted there. The poster gives employees a detailed list of their rights under the National Labor Relations Act (NLRA). The rights highlighted in the poster include:
- The right to join a union;
- The right to bargain with the employer through representatives, such as a union, about wages, benefits, hours, and other working conditions;
- The right to discuss wages and benefits and other working conditions with co-workers;
- The right to take action with co-workers to improve working conditions by, among other things, making internal complaints to the employer or to a government agency or by asking for help from a union; and
- The right to strike and picket;
The poster also notifies employees, in one bullet point, that they alternatively have the right to "choose not to do any of these activities."
The poster also advises employees that it is illegal for an employer to prohibit employees from talking about unions during non-work time, such as breaks or before or after work. It notes that it is illegal for an employer to question employees about their support for a union in a way that discourages them from supporting a union, and to make promises of benefits in order to discourage union support. The poster also notes certain things that unions are not permitted to do, such as threatening or coercing employees to get them to support the union. Finally, the poster advises employees of how to file charges if they feel their rights are being violated.
Employers are understandably wondering what effect will come from this required posting. Will employees not even notice it in the "sea" of already-required employment posters? Or, will this new poster cause employees to think about union organizing and other rights that they might not otherwise have considered? Will it generate questions among employees or questions directed to managers? What about the specific statement that employees have the right to discuss wages among themselves? Many employers make the mistaken presumption that they can ban discussion of wages and benefits among employees as "confidential" and have that prohibition stated in their employee handbooks. This NLRB posting might make it more likely for employees to challenge that rule, either with a complaint to the employer or by filing an unfair labor practice charge. Also take a look at Franck Wobst's posting on March 27 about plans by the NLRB to put up and publicize a website targeted to advise non-union workers of their NLRA rights.
All of these potential effects of the required posting are good reason for non-union employers to review their overall program for staying non-union. As we have noted in the past, the most effective method for staying non-union is to have workplace policies, benefits, and management/supervisor behavior of the sort that makes employees less likely to feel a need for union representation. Some specific things that should be considered include:
- Does your employee handbook prevent discussion among employees of wages or have any other restrictions that run afoul of the NLRA?
- It is legal to have handbook provisions which restrict certain employee conduct, such as solicitation during working time or limitations on the right to post or distribute materials. However, it is essential that those rules be tailored specifically so that they do not overreach the employer's rights and violate employee rights. The last thing an employer wants in the middle of a union organizing effort is to be required to rescind rules found to be illegal as a result of an unfair labor practice charge filed by the union.
- Do you have a policy regarding employee communications or social media? If so, have you examined whether the restrictions might step over the line the NLRB has drawn for limiting what employees can say to each other about the Company and about wages and working conditions?
- Are your managers aware of the NLRB posting and attuned to how best to respond to questions or concerns that might be raised by employees?
- Most important, have your managers been trained in and are they committed to the kind of management behavior and communication with workers that makes employees less susceptible to union organizing efforts?
Our Labor & Employment Department will be conducting a complimentary one-hour webinar on Tuesday, April 10, 2012 to help employers sort through best practices concerning the NLRB posting and all of these related implications. We hope you will consider joining us. Watch for further details, which will be circulated soon on this Blog.