NLRB Proposes Rule Requiring Employers to Post Employee Rights Notice

December 23, 2010

Providing further evidence that the Obama National Labor Relations Board will be highly activist and pro labor, the Board has proposed a new rule which would require employers to post a notice informing employees of their National Labor Relations Act (“NLRA”) rights, including the right to: organize a union; form a union; bargain collectively through a union representative; and engage in concerted activity with other employees.

The Board justifies the rule as necessary based on presumption that most employees are unaware of their rights under the NLRA to engage in protected concerted activities and form unions. The Board believes that requiring a notice posting by all employers will inform employees of their rights and will also dissuade employers from engaging in unfair labor practices under the NLRA.

The proposed rule would require every employer to post an 11 by 17 inch poster, and distribute the notice electronically if the employer customarily communicates with employees electronically. Concerning the content of the notice, the Board has proposed using language adopted by the Department of Labor (“DOL”) for its rule requiring Federal contractors and subcontractors to post a notice of employees’ rights under the NLRA. According to the Board, using DOL’s posting also would allow employers who have already posted DOL notices to be in compliance without posting a new notice.

Proposed sanctions for employers who fail to comply with the rule include treating the failure to comply as an unfair labor practice under the NLRA. The Board has also proposed tolling the NLRA’s six month statute of limitations on the filing of an unfair labor practice charge if the employer fails to post the required notice.

Republican Board Member Brian Hayes has dissented from the proposed rule and believes the Board lacks statutory authority to promulgate it. Hayes also believes the Board lacks the authority to impose the proposed remedies.

The proposed rule is subject to a sixty day comment period. Public comment on the proposed rule can be submitted electronically to www.regulations.gov, or by mail to Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, DC

Overview