NLRB Proposes New Rule Requiring Notice to Employees of Their NLRA Rights

In a December 21, 2010 press release, the National Labor Relations Board announced that it was proposing a new rule that would require most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). According to the Board, the new rule is necessary because “many employees protected by the NLRA are unaware of their rights under the statute. 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 proposed rule requires that employers conspicuously post and maintain the notice wherever similar labor and employment-law notices are posted. The content and appearance of the notice is dictated by the rule. If a significant number of employees do not speak English, employers must post the notice in the language(s) the employees speak. If an employer customarily communicates with its employees electronically, it must also post the notice electronically. Employers would be required to email all employees with a link to the notice. The link must read, “Important Notice About Employee Rights to Organize and Bargain Collectively with Their Employers.”

Failure to post the notice will be treated as an unfair labor practice under the NLRA. The Board expects that most violations of the rule will stem from employers’ lack of awareness that the rule exists. It believes that most employers will comply when notified about it, at which point the matter would be closed without further action. But employers that knowingly fail to post the notice may find their failure used as evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. The Board may also sanction an employer that knowingly fails to post the notice by extending the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.

Regardless of which side of the labor/management divide you’re on, it’s hard not to see this proposed rule as the Board’s blatant attempt to help increase union membership among private-sector workers. It’s no secret that union membership has been on a steady decline for many years. Since 1973, union membership in the private sector has dropped from 24.2% to 6.9%. (Source: Union Membership and Coverage Database.) With the Employee Free Choice Act dead in the water, the Board is attempting to achieve through rule-making what Congress failed to accomplish through the legislative process; namely, helping employees unionize. It’s impossible to draw any other conclusion, since the proposed rule conveniently ignores any reference to the corollary right in the NLRA of employees not to unionize. By proposing a rule that is so obviously pro-union, the Board has eschewed any semblance of neutrality in handling labor/management matters.

The end result of the rule will at best be limited to a flurry of inquiries from employees to employers about their rights under the NLRA. Management must be prepared to handle such inquiries in a manner that lawfully discourages further union activity. At worst, the new rule will result in increased union organizing activity throughout the private sector, forcing employers to expend money and resources on campaigns, elections, and litigating unfair labor practice charges in an attempt to remain union-free.

The period for commenting on the proposed rule closes on February 22, 2011. Interested parties – particularly employers wishing to remain union-free – are encouraged to submit comments critical of the proposed rule. Comments can be posted here.

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