NLRB Postpones Effective Date of Workplace Posting Requirement

As previously reported in the Employment Law Alert, the National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. On October 5, 2011, the Board announced that it is delaying the posting’s effective date from November 14, 2011 until January 31, 2012 “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

The postponement comes in the wake of lawsuits filed by business and industry organizations, including the United States Chamber of Commerce, the National Association of Manufacturers (“NAM”) and the National Federation of Independent Business (“NFIB”), challenging the NLRB’s authority to issue such a rule. (The lawsuits filed by NAM and NFIB have been consolidated). These pending suits may have contributed to the Board’s decision to delay the posting requirement.

Employers should take advantage of this additional time before the rule becomes effective to assess the potential impact of the required posting on their workplaces, and the manner in which they may want to communicate with employees regarding their positions on unions (if any). As we have previously discussed, the notice does not cover certain key aspects of the National Labor Relations Act (the “Act”) of which employees should be aware in order to make an informed decision about whether to vote for unionization. For example, the notice fails to mention that neither a union nor an employer are required to make a single concession during the collective bargaining process. Consequently, employees reading the notice may not understand that their decision to elect a union does not guarantee that their employment will be governed by a collective bargaining agreement. Employers may want to address issues such as this with employees through a supplemental notice or training of front-line supervisors on how to lawfully and effectively address questions employees may have about unions.

Attorneys in Gibbons Employment & Labor Law Department have extensive experience counseling both union and non-union employers regarding labor relations issues. If you have any questions regarding the impact that this rule may have on your business, please feel free to contact any of the attorneys in the Department.

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