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Under the NLRB’s Newly Proposed Rule, Employers Must Post a Notice of Employee Rights Under the NLRA

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December 22, 2010

By Chris Johlie

The Chairperson of the National Labor Relations Board (NLRB), Wilma Liebman, promised that under her leadership, the NLRB would actively reach out to inform employees of their rights under the National Labor Relations Act (NLRA). Chairperson Leibman has said that the NLRB would especially target younger employees, and suggested that younger employees would have a higher unionization rate if they knew their rights.

On December 20, 2010, Chairperson Leibman made good on her promise as the NLRB announced a proposed rule that will require employers to post a notice of employees’ rights under the NLRA.  The NLRB’s proposed rule candidly explains that the purpose of the rule is to increase employee awareness, which in turn will increase union organization: “The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” The NLRB claims that because most private employees are unorganized, they do not know their rights under the NLRA.  The Board intends the proposed rule to correct this “knowledge gap.”

In its current form, the proposed rule requires all covered employers to post 11x17 inch notices in “conspicuous places, including all places where notices to employees are customarily posted.”  The proposed rule also requires employers to distribute the notices electronically, either via email or by posting on an intranet/internet site, if the employer customarily communicates with its employees using such methods.  Employers that have significant numbers of employees who are not proficient in English must post notices (both in hard copy and electronically if appropriate) in the languages spoken by those employees. 

The Board issued a draft of the notice, which is available hereIn its current state, the draft informs employees of their rights, among others: (1) to organize, form, join, or assist a union; (2) to discuss their terms and conditions of employment, or union organizing, with co-workers or union representatives; (3) to take action with one or more co-workers to improve their working conditions by raising work-related complaints directly with their employer, a government agency, or a union; (4) to strike and picket; and (5) to bargain collectively over wages, benefits, hours, and other working conditions.  The draft notice also informs employees that they may “choose not to do any of these activities, including joining or remaining a member of a union.”  The proposed notice further informs employees that it is illegal for their employer to question them about their union support, prohibit them from soliciting for a union or distributing union literature during non-work time, discipline, discharge or threaten them for engaging in concerted activity, prohibit the wearing of union paraphernalia in the workplace absent special circumstances, or videotape peaceful union activities and gatherings.

The NLRB proposed rule includes several penalties for non-compliance.  Under the proposed rule, the NLRB may issue unfair labor practice charges against employers who fail or refuse to post the notice.  The NLRB may also toll the statute of limitations for filing an unfair labor practice charge if an employer has failed to post the notice, and it may use failure to post the notice as evidence of unlawful motive in unfair labor practice cases where motive is an issue.  The NLRB will not, however, impose monetary fines for non-compliance because under current case law, the NLRB lacks the authority to impose punitive remedies.

One NLRB member, Member Brian Hayes, dissented in the proposed rule-making.  In his opinion, the NLRB does not have the statutory authority to charge an employer with an unfair labor practice or sanction an employer who fails to post the notice.

In conjunction with the proposed rule, the NLRB issued an invitation for comments from interested parties.  Comments may be submitted to the NLRB online, by mail, or hand delivered directly to the NLRB office.  The NLRB will close the comment period after 60 days, and will then likely finalize and issue the final version of the rule.  We will continue to monitor this proposed rule and will keep you informed of relevant developments.

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