More posters: New NLRB rule for virtually every private employer

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 09/01/2011 at 10:38 AM by Russell Samson

On Thursday, August 25, 2011, the National Labor Relations Board issued an advance copy of a final rule that will require virtually all employers subject to the National Labor Relations Act (NLRA) to post a notice in the workplace about workers' rights under the NLRA. The prescribed notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It also provides examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions and complaints.  The new rule was published in the Federal Register on August 30, 2011, and will be effective November 14, 2011. According to the NLRB, 'Copies of the notice will be available on the NLRB website and from NLRB regional offices by November 1.' Who Must Post? The posting requirement does not apply to employers over which the National Labor Relations Board does not have jurisdiction, such as businesses subject to the Railway Labor Act (essentially railroads and airlines). In addition, the NLRA statute itself provides that employers 'shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, . . . or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.' So those entities are not subject to the posting requirement either. The new rule also expressly excludes the United States Postal Service from the posting requirement, even though that agency is subject to the NLRB's jurisdiction. The new rule also provides that the posting requirement will not apply to entities that do not meet the Board's discretionary jurisdiction standards. Generally, there are two such discretionary standards in place today. First there is what is known as the 'retail'standard (which applies to employers in retail businesses, including home construction). The NLRB asserts jurisdiction over any 'retail' employer which has a gross annual volume of business of $500,000.00 or more. So, except for some 'special situations,' the posting requirement will not be imposed on retail businesses which do not meet that test. The second test – the nonretail standard – applies to most other employers. It is based either on the amount of goods sold or services provided by the employer out of state (called 'outflow') or goods or services purchased by the employer from out of state (called 'inflow'). The NLRB takes jurisdiction over any employer with an annual inflow or outflow of at least $50,000. In addition to these two general tests, the NRLB has a series of standards it has developed for specific industries. For example, the NLRB's discretionary standard for colleges, universities, and other private schools is gross annual revenue from all sources (excluding only contributions which are, because of limitation by the grantor, not available for use for operating expenses) of at least $1 million; for law firms and legal services organizations it is $250,000 in gross revenues. While most employers are covered by the new posting requirement, one should not make assumptions. The litany of who is covered is published in the Federal Register in conjunction with the new rule and is available in a table which begins on page 54047 (page 42 of the 45-page pdf document) of the August 30, 2011, Federal Register (Vol. 76, No. 168). More information is available in Chapter 1 of the NLRB's 'An Outline of Law and Procedure in Representation Cases,' available here. The Poster The as-yet-unavailable poster must be at least 11 inches by 17 inches. It must be posted 'in conspicuous places where [it will be] readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.' If 20 percent or more of an employer's workforce is not proficient in English yet speaks a language other than English, the notice must be posted 'in the language employees speak.' Employers that are federal government contractors subject to, and in compliance with, the posting requirement of Executive Order 13496, will be deemed to be in compliance with the NLRB's new posting rule. Indeed, while there are some differences in the language required by the NLRB's recent rule and that required by the DOL's rule, one can get a good idea of what the NLRB's poster will say by looking at the poster promulgated by the DOL. In addition to physically posting the required notice, an employer must also make it available 'on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.' That means that either an exact copy of the poster must be 'displayed prominently – i.e., no less prominently than other notices to employees' or a link must be provided – which 'must read ‘Employee Rights under the National Labor Relations Act'' – to the Board's website that contains the poster. (Since the NLRB's poster is not yet available, neither is the link.) Consequences of Failure to Post Unlike other employment posters required by statutes, this new poster is required only by agency order. Thus, the NLRB will not be levying fines for violations, and it doesn't appear to have the authority to do so. However, the NLRB has signaled that a failure to post the notice might be treated as an unfair labor practice. Because the NLRB has not historically initiated enforcement actions on its own, someone will most likely need to file a complaint. In the final rule, the NLRB notes that a failure to post the notice may cause it to extend the six-month statute of limitations for filing an unfair labor practice charge. Perhaps of greater interest, the rule cautions, 'If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.' Since motive frequently is an issue in cases before the NLRB, an employer would be well advised to post and not invite trouble. Commentary Practically, one wonders what the impact of yet another poster will be on employees and if they will even notice its arrival. As for employers, is it possible to post all required posters 'prominently,' as required? How many posters can all be displayed 'prominently'? Should lawyers look forward to inter-agency conflicts and questions on that topic? Economically, employers will pay the cost. Indeed, in footnote 212 of the explanation in the Federal Register, the NLRB says it estimates 'the average cost of compliance with the rule will be approximately $64.40 per affected employer; thus, because there are some 6 million employers that could potentially be affected by the rule, the total cost to the economy of compliance with the rule will be approximately $386.4 million." [Emphasis added.] Finally, for those curious about the structure and timing, one notes that Board Chair Wilma Liebman's term expired on Saturday, August 27, 2011, two days after the advance copy of this rule was made public. Her departure reduces the NLRB to three members – two Democrats and one Republican – with the term of one of the Democrats, recess appointee Craig Becker, expiring on December 31, 2011. Since June 17, 2010 when the U.S. Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, we have known that the NLRB cannot conduct business with only two members. Is there a ticking clock? What else might we expect from the NLRB before January 1, 2012?

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