NLRB Announces Proposed Rule on Posting Employee Rights
Insight January 14, 2011
The NLRB proposed a rule which would require all employers to post notices informing employees of their rights under the National Labor Relations Act.
On December 22, 2010, the National Labor Relations Board proposed a rule which would require all employers- union and non-union alike- to post notices informing employees of their rights under the National Labor Relations Act (NLRA) including the right to organize and join unions. While historically NLRB rulemaking has occurred on few occasions, the recent proposal seems to confirm speculation that an unprecedented move towards future NLRB rulemaking is afoot.
The Board claims this rule is necessary because most employees are unaware of their rights under the NLRA to engage in protected concerted activities and form unions pointing to a 2009 figure which indicates only eight percent of non-agricultural private-sector employees were represented by unions. It indicated the proposed rule would inform employees of their rights while also dissuading employers from engaging in unfair labor practices under the NLRA.
Under the proposed rule, all employers subject to the NLRA and the Board's jurisdiction (including most private-sector employees) would be required to post a notice where other workplace notices are typically posted. If an employer customarily communicates with its employees electronically, it must also distribute an electronic version of the notice.
The proposed notice provides that "employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities." The notice also lists conduct prohibited by employers and unions and provides information regarding how to contact the NLRB with questions or complaints.
In terms of enforcement, the NLRB suggests that failure to post the notice may be considered an unfair labor practice under the NLRA. In cases of knowing violations, failure to post a notice may be used in NLRB proceedings as evidence of unlawful motive or anti-union sentiment. Additionally, the NLRB may extend the six-month statute of limitations for filing a charge involving any unfair labor practice allegations when an employer fails to post the requisite notice.
The Board has submitted a Notice of Proposed Rulemaking to the Federal Register. The public comment period is now open for sixty days regarding all aspects of the proposed rule, including the issue of the board's authority to promulgate such a rule. One member of the Board dissented from the issuance of the proposed rulemaking stating that he believed the NLRB lacks the statutory authority to promulgate or enforce this type of rule. The NLRB invites comments either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.
For more information on the proposed rule, the notice, or the NLRA, please contact a member of the firm's employment law group at http://www.rimonlaw.com/practice/employment-law.