On December 22, 2010, the National Labor Relations Board published a proposed rule (pdf) that would require all private sector employers covered by the National Labor Relations Act to post a notice informing employees of their NLRA rights. This requirement would be imposed on all employers covered by the NLRA even if there is no union in place. The notice would be similar in form and content to the notice (pdf) the Department of Labor recently approved for use by federal contractors. As stated in a fact sheet, (pdf) the purpose of the proposed rule is “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.” Unlike the rule for federal contractors, this proposed rule would apply to the vast majority of private sector employers and would create significant compliance obligations, along with serious potential non-compliance liability, on most employers.

This proposed rule is consistent with the Obama Administration’s initiative to inform employees of rights, including in this case rights under the NLRA. Moreover, it is further evidence of the Administration’s overt efforts to promote private-sector unionization.

If an employer typically communicates with employees electronically, the proposal requires that employer to post the notice electronically as well and provide a link to the NLRB’s website. The proposed rule contains the wording to be used in the email, web page or link. Moreover, an employer would need to post the notice in a language customarily spoken and understood by the employees. The NLRB will provide translations.

Significantly, an employer’s failure to post the notice under the proposed rule would be treated as an unfair labor practice and could warrant tolling of the six-month statute of limitations for filing ULP charges. An employer’s knowing failure to post the notice could be considered as evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

In a strongly-worded dissent, Board Member Brian Hayes argued that

the Board lacks the statutory authority to promulgate or enforce the type of rule which the petitions contemplated and which the proposed rule makes explicit. . . .

The instant proposed rule would impose a requirement that all employers subject to the Board’s jurisdiction post a notice of employees’ rights identical to that which the Department of Labor, acting pursuant to clear authority under an Executive Order, has recently required federal contractors to post. Going well beyond that requirement, however, the proposed rule here would further impose unfair labor practice liability for any failure to post a notice and would also suspend the Section 10(b) limitations period for any unfair labor practice charge against a noncompliant employer.

Public comment is invited on all aspects of the proposed rule and its proposed enforcement. I believe such comment is plainly warranted and should address the Board’s authority to impose or enforce such a rule. In my view, it is essential to have a broader basis for enacting such a rule than the opinions of my colleagues and the treatises of the party requesting rulemaking . . .

Comments are due by February 22, 2011, and must contain the regulatory identification number (RIN): 3142—AA07. Comments may be submitted electronically through the federal eRulemaking portal or by mail or hand-delivery to: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Washington, DC 20570.

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