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NLRB Takes ‘Major Step’ with New Notice Rule

The National Labor Relations Board (NLRB) took “a major, but not unexpected, step” Tuesday when it announced a new proposed rule that would require employers to notify employees of their rights under the National Labor Relations Act (NLRA). Among other things, employers would have to let employees know that they have the right to “[t]ake action with one or more co-employees to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from the union,” as well as engaging in strikes and picketing. Covered businesses would be required to place a government-furnished poster — “Employee Rights under the National Labor Relations Act” — in prominent places in their work site and electronically, if that is the usual means of communicating with employees.

“The NLRB has never tried to impose — on all employers — such a notice requirement,” says J. Robert Brame, a Washington, D.C. attorney with McGuireWoods LLP and co-editor of Federal Employment Law Insider. In effect, the NLRB is creating a new unfair labor practice (ULP) — failure to post a new Board-drafted notice. The assumed ‘employee lack of knowledge’ was addressed earlier in one of President Obama’s first executive orders, but it was limited to federal contractors. This goes much, much further.”

Under the proposed rule, which would apply to all employers governed by the NLRA, noncompliance with the posting requirements:

  • would be considered a ULP;
  • could cause the statute of limitations for filing ULP charges against employers that fail to post the notice to be postponed; and
  • could be considered “evidence of unlawful motive” in ULP cases.

The proposed notice is important to the NLRB because they believe many employees are unaware of their rights under the NLRA. According to the Board, the notice is supposed to increase employees’ knowledge of the law and promote statutory compliance by employers and unions.

Brame also discussed how the proposed rule will require approval from a court of appeals: “Interestingly, the NLRB’s ‘orders’ have no independent force of law. That is why the Board must petition a court of appeals, which in effect changes the request into ‘you must or else.’”

The Notice of Proposed Rulemaking provides for a 60-day comment period. You may submit comments by mail, hand-delivery, or at http://www.regulations.gov. The proposed rule and more information about it can be found at www.nlrb.gov.
Brame will go into more detail about the new proposed rules in an upcoming issue of Federal Employment Law Insider. On January 19, 2011, he and newsletter co-editor David S. Fortney, of Fortney & Scott LLC, will present an important 90-minute audio event titled, “2011 Employer Update: New Laws, Regs, Enforcement Threats & Compliance Tactics,” and the NLRB’s new initiative is certain to be front and center in the discussion. You may register for that event by going to http://bit.ly/i2Hc9r.