New Proposed Rule Signals A More Activist NLRB

January 2011

On December 21, 2010, the National Labor Relations Board (“NLRB”) submitted a Notice of Proposed Rulemaking to require employers to post Notices to employees that explain employee rights under the National Labor Relations Act (NLRA), including the right to bargain collectively, and to engage in union and concerted activities. The NLRB claims that many employees are not aware of their NLRA rights, and hopes this proposed Rule can increase employees’ awareness of their rights. The proposed Rule would apply to all employers covered by the NLRA, including non-union employers who meet the NLRA’s minimal jurisdictional standards. It also specifies the form, size and content of the Notice, and allows it to be posted or issued electronically.

Section 6 of the NLRA has always provided the NLRB with the authority to make rules it deems necessary to enfore the Act. However, this power has rarely been utilized during the NLRA’s 75 year history. The decline in unionization of private sector non-agricultural employees to 8% in 2009 and the continuing reduction in the filing of Unfair Labor Practice Charges and Election Petitions seem to be the impetus for the NLRB’s action.

Many union friendly commentators have suggested that one of the reasons for the decline in unionization of private sector nonagricultural employees, is a lack of knowledge of their rights by large segments of today’s workforce including immigrants and employees aged 18-25. Supporters of the new Rule also point out that the NLRA has been unique among Federal labor laws in that it does not require anyone to inform employees of their rights or require employers to post notices. They emphasize that Notices have always been required to be posted under the other Federal employment laws including the FLSA, Title VII, ADEA, OSHA, ADA, FMLA, USERRA, and the Employee Polygraph Protection Act.

Proposed Rule and Sanctions

The proposed Notice itself will contain an identical summary of an employee’s rights under the NLRA as was provided in the Final Rule promulgated by the Department of Labor to implement Executive Order 13496 issued by President Obama on January 30, 2010. This Executive Order required Federal contractors and subcontractors to post Notices of employees’ NLRA rights. Under the proposed Rule, the Federal contractors and subcontractors who have posted the Notice since its June 21, 2010 effective date would not have to post another Notice, but all other employers would need to post the Notices. This proposed Rule contains no recordkeeping or reporting requirements.

The NLRB has also proposed the following sanctions for an employer’s failure to post the Notice:

1. The failure to post the required Notice may be an Unfair Labor Practice;
2. The NLRA’s 6 month statute of limitations for filing Unfair Labor Practice charges will be tolled against employers that fail to post the Notice; and
3. A knowing failure to post the Notice may be evidence of unlawful motive to the NLRB in Unfair Labor Practice cases.

These are significant penalties for non-compliance, even though the NLRB acknowledged that most employers that fail to comply only do so because they are unaware of this new rule. When the NLRB is notified of a failure to comply, it will order the employer to cease and desist and to post the Notice of employee rights along with a remedial Notice.

The one dissenting member of the NLRB, Brian E. Hayes, argued that the NLRB does not have authority to order notice postings by an employer in the absence of an Unfair Labor Practice Charge against that employer. He pointed out that the sanctions proposed go far beyond the requirements of President Obama’s Executive Order for Federal contractors and subcontractors and are more severe than any other penalties for failure to post Notices under other employment laws. Since the NLRA, unlike other Federal employment statutes,
does not expressly require notice postings by employers, nor does it expressly authorize the NLRB to require such postings, this proposed Rule may be a harbinger of what could be a more activist and union friendly NLRB, with its Democratic majority.

The NLRB will accept comments regarding this proposed Rule through February 19, 2011. Comments can be submitted through http:// www.regulations.gov, hand delivered to the NLRB, or mailed to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.

James B. Perry is a member in the Detroit office. His
expertise is in Labor and Employment Law. He has
represented employers before the NLRB in 14 states over
the past 33 years. He can be reached at 313.223.3096 or
jperry@dickinsonwright.com.

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