July 23, 2014

Federal Court Rejects Bid To Scrap The NLRB'S Rule Requiring Non-Union Employers To Post Notice Of Unionization Rights

The NLRB’s new notice-posting requirement is one step closer to reality as the United States District Court for the District of Columbia has, in National Ass'n of Manufacturers v. National Labor Relations Board, dismissed a claim by various business groups claiming that the NLRB had overstepped its rulemaking authority in requiring the notice. 

At the same time, the Court invalidated two of the rule’s provisions.  First, the Court found that the NLRB did not have the authority to deem the mere failure to post a notice an unfair labor practice.  Second, the Court found that NLRB did not have the authority to toll the employee’s six-month window to file an unfair labor practice charge where the employee worked for an employer who failed to post a notice. 

While an appeal has been promised, as the rule currently stands, employers will be required to post notices apprising workers of their right to unionize by April 30, 2012 – less than two months from now.  In short, the required notice will inform employees that they have the right to bargain collectively with their employer for improved wages and working conditions, to form, join and assist a union and to refrain from any of these activities.  The notice must be posted in the workplace in conspicuous locations readily seen by employees, including all places where notices concerning personnel rules or policies are customarily posted.  If at least 20% of the workforce is not proficient in English, the notice must also be posted in the appropriate foreign language.  In addition to the physical posting, the rule requires covered employers to post the notice on an employer internet or intranet site if personnel rules and policies are customarily posted there.  Sample notices (including in English and Spanish) are available here

This rule applies to all employers subject to the National Labor Relations Act, whether they have a unionized workforce or not.  Thus, while the notice need not be posted until the end of April, even those employers with non-unionized workforces should prepare ahead of time by conducting management training regarding the notices and unionization generally to ensure that managers and supervisors are sufficiently educated to communicate employers’ positions on unionization in a lawful manner.

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About the Author

Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney

Michael represents clients in connection with a variety of complex employment litigation matters, including pretrial, trial, and appellate work; administrative proceedings; and arbitrations and mediations relating to wage and hour, discrimination, noncompete, trade secret, general contract disputes, and other employee-related disputes. 

He regularly advises clients regarding employee performance, retention and separation issues, and compliance with discrimination, wage and hour, family and medical leave, workers’ compensation, disability, and other employment laws and...


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