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National Labor Relations Board Issues Proposed Rule Requiring Posting of Employee Rights

December 30, 2010

The National Labor Relations Board (NLRB) issued a proposed rule last week that would require all private sector employers covered by the National Labor Relations Act (NLRA) to post a notice describing employee rights under the NLRA, including the right to unionize. This proposed rule is similar to one recently finalized by the Department of Labor requiring federal contractors to post a nearly identical notice. Here are the highlights of the proposed rule:

  • The proposed rule would require most private employers to post a notice describing employee rights under the NLRA, including the right to: (1) organize a union to negotiate with the employer regarding terms and conditions of employment; (2) form, join or assist a union; (3) bargain collectively through a chosen representative with respect to terms and conditions of employment; (4) discuss terms and conditions of employment with union organizers and co-employees; (5) take action with one or more co-employees to "improve . . . working conditions;" (6) strike and picket, depending upon the purpose or means of the strike or picketing; and (7) choose not to do any of the foregoing.
  • The notice required by the proposed rule includes a list of things employers are prohibited from doing under the NLRA, including: (1) questioning employees about union support or activities in a manner that discourages participation in union activity; (2) taking adverse employment action, or threatening such action, because an employee supports a union or otherwise engages in protected activity; (3) prohibiting solicitation for a union during non-work time or distribution of union literature during non-work time in non-work areas; (4) threatening to close the workplace if workers choose a union to represent them; (5) promising or granting promotions, pay raises, or other benefits to discourage or encourage union support; (6) prohibiting employees from wearing union hats, buttons, t-shirts and pins in the workplace except in certain circumstances; or (7) engaging in or pretending to engage in surveillance of peaceful union activities.
  • The proposed notice also describes a few prohibited actions by labor unions, such as taking adverse action against an employee based on whether the employee has joined or supported the union.
  • Under the proposed rule, the NLRB will impose the following sanctions on employers who fail to post the required notice: (1) the failure to post the required notices will be considered an unfair labor practice; (2) the six-month statute of limitations for filing unfair labor practice charges will be tolled (i.e., not enforced) in certain circumstances, which would allow employees to bring otherwise untimely claims; and (3) the knowing failure to post the notice will be considered evidence of unlawful motive in unfair labor practice cases.
  • The proposed notice would have to be posted on 11" by 17" paper "in conspicuous places, including all places where notices to other employees are customarily posted." If the employer communicates with employees electronically via email or through an intranet, for example, the notice would have to be posted or provided electronically as well.
  • The notice must be posted in English and any other language spoken by a significant number of the employer's employees.

We expect the NLRB to be more active with respect to rule-making in light of the current lack of political support for the Employee Free Choice Act. The NLRB has broad statutory authority to enact rules "as may be necessary to carry out the provisions of the [NLRA]." We believe the NLRB will attempt to achieve through rulemaking many of the things organized labor has been unable to achieve through legislation in the past few years.

We emphasize that this rule has not yet been adopted and is not yet effective. The proposed rule is open for public comments for 60 days following its publication in the Federal Register on December 22, 2010. The NLRB will accept comments by mail, hand delivery, or through http://www.regulations.gov. Once comments are received and reviewed by the NLRB, we anticipate that the NLRB will issue a final rule sometime in 2011.

If you have any questions, or would like to discuss this issue further, please contact Varnum's Labor and Employment Practice Team.

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