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Thursday
Jan052012

New NLRB Poster Rule

Future issues of LegalBriefs will address how the National Labor Relations Board (NLRB) has gone from a purported arbiter of union elections and union issues to an outright advocate for the union agenda. Today, we are discussing the NLRB’s new employment poster notifying your employees of their right to form a union. The poster and when you will be required to display the poster are discussed below.

It requires non-union employers to post an oversized (11” x 17”) poster informing employees that they can act together to improve wages and working conditions, to form, join and assist a union and to bargain collectively with their employer (you). It also instructs employees on how to contact the NLRB. With other required employment posters 8 1/2” x 11” in size, this new notice will dwarf all others.

You must post the notice where you post employment posters, may be required to post it electronically and may be required to display it in as many as five different languages. Failure to do so could be treated as an unfair labor practice.

In September, the U.S. Chamber of Commerce sued the NLRB to block this rule. The Chamber argues this requirement infringes upon employers’ First Amendment rights and violates the National Labor Relations Act and a number of other laws.

[Disclosure:  I previously served on the U.S. Chamber Board for 6 years and continue to serve as a founding member of its Small Business Advisory Council.]

The NLRB rule required that the new poster must be displayed by November 9, 2011. After the Chamber suit was filed, the NLRB postponed the implementation date to January 31, 2012. Now, the date has been postponed again to April 30, 2012 to “facilitate the resolution of … legal challenges.”

The Chamber’s First Amendment argument may have merit. I attended a briefing on employers’ First Amendment rights in connection with Oregon’s “Employer Gag Bill” a couple of years ago. Employers are protected by the First Amendment. Do not be surprised if the Chamber prevails and the rule is withdrawn or determined to be invalid.

If the rule does indeed go into effect on April 30, 2011 or sometime thereafter, we will notify you and provide you with information so you can decide how or if you will comply with the rule.

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