Posted on | October 1, 2011
Written by | Keven Danow and Arielle Albert
The National Labor Relations Board (NLRB) issued a Final Rule, effective November 14th, 2011, that requires all employers to notify their employers of their rights under the National Labor Relations Act (NLRA). Most licensees will be surprised to learn that they come under the jurisdiction of the NLRB.
Small vs. Large: Important Distinction
The NLRA applies to employees in most private-sector workplaces, including manufacturing plants, retail centers, private univiersities and health care facilities. The NLRB has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than slight effect on interstate commerce. The jurisdictional standards are summarized in the rule, but generally speaking the NLRB will assert jurisdiction over retail businesses that have a gross annual volume of business of $500,000 or more.
The nonretail standard applies to most other employers. It is based either on the amount of goods sold or services provided by the employer or out of state (called “outflow”) or goods or services purchased by the employer from out of state (called “inflow”). The Board will take jurisdiction over any employer with an annual inflow or outflow of at least $50,000.
Outflow can either be direct—to out-of-state purchasers—or indirect—to purchasers that meet other jurisdictional standards. Inflow can also be direct—purchased directly from out of state—or indirect—purchased from sellers within the state that purchased them from out-of-state sellers.
Employers who think they qualify for the small business exclusion should consult an attorney before electing to ignore the new rule. Do not think that you are exempt from the posting requirements because your employees are not members of a union. Because NLRA rules apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the United States Postal Service) will be required to post the notice.
At this time it is difficult to foresee what the consequences of a failure to comply will be. The NLRB does not have the power to fine an employer. However, failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers or other persons. It does not initiate enforcement actions on its own. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. The NLRB can seek injunctive relief and if there is a findingf that employees’ rights have been violated, it can seek compensation for the employees.
Basically, the new rule requires the employer to post a notice which informs all of its employees that under the NLRA, employees have the right to “Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.” Specifically, the Act is meant to enable employees to:
The notice must also notify employees that under the NLRA, it is illegal for an employer to:
The notice must also state that under the NLRA, it is illegal for a union or for the union that represents the employees in bargaining with the employer to:
The entire notice contains much more information. In some cases the information must be printed in multiple languages and the information must be posted on the employer’s website or otherwise communicated electronically.
The NLRB will provide copies of the notice on request at no cost to the employer beginning on or before November 1st, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website, http://www.nlrb.gov and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.