This week, just days after former Chair Wilma Liebman’s term expired and she was succeeded as Chair by former Buffalo union attorney Mark G. Pearce, the National Labor Relations Board (NLRB or Board) issued a Final Rule requiring nearly all private-sector employers to notify their employees of their rights under the National Labor Relations Act (NLRA).  The notice contains a summary of employee rights under the NLRA.  The rule goes into effect on November 14, 2011 — 75 days after it is posted in the Federal Register.

Employers Covered by the Posting Rule

All employers that are subject to the NLRA must follow the new Posting Rule.

Covered Employers:

• Most private-sector employers

Excluded Employers:

• Public-sector employers
• Employers of agricultural and domestic workers
• Independent contractors
• Family-owned business that only employ children or a spouse
• Air and rail carriers covered by the Railway Labor Act
• U.S. Postal Service

Federal Contractors

Although federal contractors are also covered under this rule, they are already required to post a similar notice of employee rights by the Department of Labor.  Therefore, if the federal contactor posts the Department of Labor notice, it will be in compliance with the NLRB Posting Rule without having to post the NLRB notice.

Small Employers

The NLRB has also chosen not to assert its jurisdiction over very small employers whose annual business is not large enough to have more than a de minimis effect on interstate commerce.  For non-retail employers, the Board’s standard is whether the employer has an annual outflow or inflow, direct or indirect, across state lines of at least $50,000.  Retail employers that have a gross annual volume of business of at least $500,000 fall within the Board’s statutory jurisdiction.  Finally, employers engaged in furnishing interstate transportation of passengers or freight, and all other enterprises which function as essential links in the transportation of passengers or commodities in interstate commerce, deriving at least $50,000 annual gross revenue from such operations, or performing services valued at least at $50,000 for enterprises over which jurisdiction would be asserted under any standard except one based on indirect outflow or indirect inflow also fall under the Board’s jurisdiction.

Posting and Distributing the Notice

The notice will be provided by the Board.  It is a one-sheet notice on 11-by-17-inch paper.  The notice will be available starting around November 1, 2011 on the Board’s website: https://www.nlrb.gov/.  Employers will be able to download the notice from the NLRB’s website and print it out in color or black-and-white.  Employers may also request copies of the notice from the Board at no cost to the employer.  Goldberg Segalla LLP will issue another alert once the posting is available to employers.

Posting Details

If the employer customarily posts personnel notices, policies, rules or regulations on an internet or intranet site, the employer must also post the notice on the same internet or intranet site for its employees.  There is no requirement to distribute the notice via e-mail or any other electronic means.

The notice does not need to be posted in an area that is only used by supervisors.

The notice must be posted in English and any other language if at least 20 percent of employees are not proficient in English and speak the other language.  Employers will be able to download notices in any other language from the Board website.

Enforcement of the Posting Rule

Failure to post the required notice may be treated as an unfair labor practice under the National Labor Relations Act.  Should an unfair labor practice charge be filed against the employer, the NLRB will investigate the allegations.

Generally, the remedy for a violation of this rule will be a direction from the Board to the employer to post the required notice.  However, while the remedy is normally a posting, a violation of the posting obligation may aggravate the seriousness of any other charge that may be filed with the NLRB.  For example, an employer that is the subject of an unfair labor practice charge as part of a union salting campaign may find it more difficult to fight the charge if it also fails to post the notice.

In light of this new posting obligation and the aggressive pro-union activity of the National Labor Relations Board, all employers must be mindful of the best practices to prevent unfair labor practice charges.

If you have questions about this new rule or about implementing preventative measures in your business to avoid unfair labor practice charges, please contact Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com), Rick Braden (716.566.5436; rbraden@goldbergsegalla.com); Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com), or another member of the Goldberg Segalla Labor and Employment Practice Group.