On December 21, the National Labor Relations Board proposed a rule that would require nearly all private-sector employers to inform employees of their rights under the National Labor Relations Act (“NLRA”), including their rights to join or form a labor union.
For the time being, this is only a proposed rule; nothing is required yet. Interested parties have 60 days to submit comments regarding the proposed rule, after which the Board will be able to adopt a final rule imposing this posting requirement. Given the current composition of the Board, many commentators are predicting that the rule be implemented in substantially the same form as proposed.
In its Notice of Proposed Rulemaking, the Board stated that it “believes that many employees protected by the NLRA are unaware of their rights.” Specifically, the NLRB endorsed a commentator’s view that American workers, particularly those in the non-union setting, are “ignorant” that the NLRA applies to them. The proposed notice would inform workers that they have the right to organize a union; to discuss terms and conditions of employment or union organizing with co-workers or a union; to take action with co-workers in order to improve terms and conditions of employment by (for example) raising work-related complaints with their employer or a government agency, or seeking help from a union. Further, the proposed notice gives examples of unlawful employer conduct, such as prohibiting employees from soliciting for a union during their non-work time or from distributing literature during non-work time in non-work areas.
Employers would be required to post the Board’s 11″ x 17″ notice “in places where they customarily post notices to employees”; “take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material”; and distribute notices “electronically, such as by email posting on an intranet or an internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means.”
Under the proposed rule, the failure to post the notice would be treated as an unfair labor practice under the NLRA. However, the normal 6-month statute of limitations would not apply in a failure-to-post case, and the Board has suggested that it might disregard the 6-month statute of limitations in other types of cases if the employer had failed to post the notice.
The proposed rule is controversial, and it will likely be challenged if implemented. Board Member Brian Hayes has gone on record to state that he does not believe the Board has the authority to impose the posting requirement described in the proposed rule.
Bottom Line
Again, nothing is final yet. Given that the rule is controversial, everyone is expecting that numerous comments will be submitted in response to the proposed rule. Stay tuned for further developments.