The National Labor Relations Board (“NLRB”) has proposed a rule that would require employers to post notices informing workers of their right to unionize. The NLRB rarely uses its rulemaking authority, and the proposed rule is the first time the NLRB has invoked that authority since 2004.
Under the proposed rule, all employers subject to the National Labor Relations Act (“NLRA”) would have to post an 11-by-17 inch poster educating employees of their rights under the NLRA. The notice would have to be posted where the employer posts other workplace notices, such as safety, wage and hour, and anti-discrimination posters. Employers that primarily communicate with employees via email or other electronic means would have to also post the notice electronically.
If an employer failed to post the notice, it could be penalized. The NLRB would treat such a failure as an unfair labor practice. It would also suspend the statute of limitations that would otherwise be applicable and could use the failure to post the notice in the context of other unfair labor practice charges unrelated to the notice posting issue.
The proposed rule represents a notable departure from the NLRB’s typical practice of requiring employers to post notices only as a remedy for noncompliance with the NLRA or a few days in advance of an NLRB-conducted election. According to the explanation accompanying the NLRB’s proposal, the NLRB’s broad enforcement of a posting requirement is rooted in its belief that employees are “unaware of their rights under the statute.” Indeed, the NLRB’s press release says that the purpose of the proposed rule is to “increase knowledge of the NLRA among employees, to better enable their exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
To that end, the proposed notice will state that employees have the right to:
- act together to improve wages and other terms and conditions;
- form, join, or assist unions;
- bargain with their employer;
- discuss union organizing with co-workers or a union;
- raise work-related complaints with their employer, a governmental agency, or a union;
- strike and picket; and
- choose not to engage in any of these activities.
The notice would also provide examples of unlawful employer and union conduct, as well as instruct employees how to contact the NLRB with questions or complaints. The complete text of the proposed employee rights notice and the proposed penalties for failing to post the notice are set forth in the Proposed Rule. There is a 60 day period for public comment on the proposed rules.
For the labor professional, the NLRB’s action is really quite remarkable. It wants to require otherwise compliant employers to post notices informing employees of their right to unionize. This also suggests that future NLRB rulemakings are on the horizon. Indeed, the fact that law professor Charles Morris originally proposed the rule to the NLRB in a 1993 petition further supports this possibility. Readers of this blog may recall that Morris has also petitioned the NLRB asking that it issue an administrative rule requiring employers to bargain with unions that do not represent a majority of an employer’s employees.
It is unclear what awaits labor professionals if Professor Morris is influencing NLRB policy, but if the NLRB’s proposal is any sign, employers should beware and remain watchful of any additional rulemaking activity. Those employers and other interested parties who wish to comment on the regulations should note the applicable deadline for receipt of those comments.