Yesterday, the NLRB published the final version of its new rule requiring most private employers to post a notice to employees informing workers about their rights to form a labor union.  The posting is similar to the one that government contractors are already required to post. (See DOL Fact Sheet). 

The new rule is significant for several reasons.  First, this is the first time that the Board has extended its reach to the private sector in requiring this type of posting.  Second, the penalty for failing to comply is that the employer will be deemed to have committed an unfair labor practice.  While the rule does not authorize a monetary penalty, the issuance of an unfair labor practice is still significant, especially for an employer that is facing a union organizing campaign.  This is because the Board may use a failure-to-post ULP as a means to extend the 6-month statute of limitations for filing charges involving other alleged unfair labor practices against the employer, as well as grounds for establishing “unlawful motive” in cases involving other alleged violations of the National Labor Relations Act.  Consequently, it is foreseeable that the failure to post—in combination with other alleged unfair labor practices—could result in the issuance of a bargaining order, in which the Board would require an employer to bargain with a union even when the union has not established majority support. The failure to post would also serve as a blocking charge to stop a decertification vote.

Not surprisingly, employers and business groups dislike this rule, and for good reason.  The US Chamber of Commerce views the action as making it appear that the government is encouraging workers to form labor unions. (See Editorial in Las Vegas Review-Journal)  Nathan Koppel of The Wall Street Journal’s Law Blog details the strong reactions from employers regarding the new rule.  

More details on the new rule: 

  • Employers must post the new notice beginning November 14, 2011
  • The new posting will be available from the Board beginning November 2, 2011
  • Employers who post policies on-line must include this notice on-line
  • Employers do not have to keep records showing that they have posted the notice
  • Certain very small employers and the US Postal Service are exempt; otherwise, all employers subject to the NLRA must post
  • The notice must be posted in English and other languages if 20% or more of the workforce speaks another language

Interestingly, the administration just last week announced its new regulatory simplification effort, in which simplifying Department of Labor warnings would purport to save employers more than $2.5 billion over the next five years.  (See Christi Parson’s article in the LA Times).  Ironically, however, this new posting requirement will cost each of the roughly 6 million subject employers at least $64 in just the first year to comply.