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NLRB Proposes Rule Requiring Employers to Post Notice of Union Organizing and Other Rights

Labor & Employment Law Alert David B. Kern

On December 22, 2010, the National Labor Relations Board (the "Board") published a notice of proposed rulemaking that would have sweeping impact on almost all employers. If the proposed rule becomes final, employers subject to the jurisdiction of the NLRB (which includes the vast majority of private-sector employers in the United States) will be required to post a Notice advising employees of their rights under the National Labor Relations Act ("NLRA" or the "Act").

The Board states that the underlying purpose of its action is to remedy what they have described as a "knowledge gap" regarding employee rights under the NLRA. In the Board's view, the relatively small number of unionized workers (approximately 7.2 percent of private sector employees in the United States) is directly attributable to this knowledge gap, and employees will be more likely to exercise their right to unionize if they are notified of their right to do so.

The rule itself would require employers to post a Notice that, among other things, details employee rights under the NLRA. The Notice must also be electronically distributed, if that is the method by which the employer customarily communicates with its employees. Among other things, the Notice advises employees of their protected right to:

  • Discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Take action with one or more co-workers to improve working conditions by, among other means, raising
    work-related complaints directly with their employer.
  • Organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment.

The Notice goes on to advise employees that it is illegal for an employer to take a variety of actions against them, including:

  • Prohibiting employees from soliciting for a union during non-work time.
  • Questioning employees about their union support or activities.
  • Prohibiting employees from wearing union hats, buttons, t-shirts and the like.

Significantly, the Board's proposed rule also contains stiff sanctions for non-compliance. If an employer fails to post the Notice as required, the employer may be deemed to have committed an unfair labor practice in violation of Section 8(a)(1) of the NLRA, which prohibits employer actions which interfere with, restrain or coerce employees in the exercise of their rights under the Act. More importantly, the failure to post the Notice may serve to toll or extend the six-month statute of limitations for filing an unfair labor practice charge under the NLRA. In addition, if an employer is found to have knowingly ignored the posting requirement, the Board may presume that the employer possesses an unlawful anti-union motive, if other charges are filed against the employer and unlawful motive is an element of those charges.

The language of the proposed Notice tracks the language of a Notice now being required of certain government contractors and subcontractors, pursuant to a rule adopted by the Department of Labor earlier in 2010. Under that rule, contractors and subcontractors are required to post the identical Notice if they have entered into covered federal contracts or subcontracts containing the posting requirement. We described that rule and its posting requirements in a May 2010 alert.

Board Member Brian Hayes dissented from the NLRB's decision to grant the rulemaking petition. In his view, the Board does not have the authority to require such a posting under the terms of the National Labor Relations Act. In contrast to the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, and other Federal legislation, the National Labor Relations Act contains no provision requiring employers to post notices informing employees of their statutory rights. One can, therefore, expect litigation over the Board's right to have issued and to enforce the rule.

Interested parties have 60 days, or until February 22, 2011, to comment on the proposed rule. Comments may be submitted electronically or in hard copy. If you would like more information regarding this proposed rule or how to file a comment, please contact David Kern at (414) 277-5653 / david.kern@quarles.com or your Quarles & Brady LLP attorney.