NLRB Takes ‘Major Step’ with New Notice Rule

December 22, 2010 - by: HR Hero Alerts 4 COMMENTS

The National Labor Relations Board (NLRB) took “a major, but not unexpected, step” Tuesday when it announced a new proposed rule that would require employers to notify employees of their rights under the National Labor Relations Act (NLRA). Among other things, employers would have to let employees know that they have the right to “[t]ake action with one or more co-employees to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from the union,” as well as engaging in strikes and picketing. Covered businesses would be required to place a government-furnished poster — “Employee Rights under the National Labor Relations Act” — in prominent places in their work site and electronically, if that is the usual means of communicating with employees.

“The NLRB has never tried to impose — on all employers — such a notice requirement,” says J. Robert Brame, a Washington, D.C. attorney with McGuireWoods LLP and co-editor of Federal Employment Law Insider. In effect, the NLRB is creating a new unfair labor practice (ULP) — failure to post a new Board-drafted notice. The assumed ‘employee lack of knowledge’ was addressed earlier in one of President Obama’s first executive orders, but it was limited to federal contractors. This goes much, much further.”

Under the proposed rule, which would apply to all employers governed by the NLRA, noncompliance with the posting requirements:

  • would be considered a ULP;
  • could cause the statute of limitations for filing ULP charges against employers that fail to post the notice to be postponed; and
  • could be considered “evidence of unlawful motive” in ULP cases.

The proposed notice is important to the NLRB because they believe many employees are unaware of their rights under the NLRA. According to the Board, the notice is supposed to increase employees’ knowledge of the law and promote statutory compliance by employers and unions.

Brame also discussed how the proposed rule will require approval from a court of appeals: “Interestingly, the NLRB’s ‘orders’ have no independent force of law. That is why the Board must petition a court of appeals, which in effect changes the request into ‘you must or else.’”

The Notice of Proposed Rulemaking provides for a 60-day comment period. You may submit comments by mail, hand-delivery, or at http://www.regulations.gov. The proposed rule and more information about it can be found at www.nlrb.gov.
Brame will go into more detail about the new proposed rules in an upcoming issue of Federal Employment Law Insider. On January 19, 2011, he and newsletter co-editor David S. Fortney, of Fortney & Scott LLC, will present an important 90-minute audio event titled, “2011 Employer Update: New Laws, Regs, Enforcement Threats & Compliance Tactics,” and the NLRB’s new initiative is certain to be front and center in the discussion. You may register for that event by going to http://bit.ly/i2Hc9r.

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4 COMMENTS

1 Eunice Montfort
06:49:47, 29/12/10

The proposed NLRB rule to require employers to notify employees that they have the right to push for a union is nothing more than another move by Obama to pay back his union buddies who contributed in excess of 60 million dollars to get him elected. With his re-election campaign already kicking in for the 2012 election, Obama wants to make sure he keeps the unions in his corner so they will contribute huge sums of money again. Employers nor employees are fooled at all about what this proposed rule is all about. Obama operates like a third world dictator. What he can’t get through Congress by the means outlined in our Constitution, he either does by Executive Order or by regulation. He’s just a crook in sheep’s clothing.

2 John Pierce
12:24:47, 29/12/10

With this change, the NLRB becomes the “Marketing” arm of Labor Unions. The is totally unnecessary, especially with the current levels of high unemployment throughout the United States. They are creating a problem where one does not exist.
Next they will be pushing for the American Free Choice Act also know as the Union Free Ride Act.

3 Jennifer
11:56:08, 04/01/11

The NLRB (along with other governmental agencies) is obviously out of touch with employees. Do they think people actually read all those required posters? I have never seen an employee even stop to look at the entire wall in our breakroom that is now covered with these mandatory postings written in legalese. Adding one more to the list is not a burdensome requirement, but it is going to make people’s eyes glaze over a little quicker when they look at that wall of posters. I think it’s just more of a symbolic token thrown out to the administration’s union supporters.

4 Kathy
12:56:33, 11/01/11

The current administration’s close affiliation with labor unions has spawned this covert advertising of pro-union retorhic. The labor unions realize that they are losing favor daily with employees and are trying to get their agenda pushed through to force more employees get interested in unionization. What they don’t realize, is that employees are well aware of their options with more and more opting out of unionization. If unions were truly interested in the wellfare of employees, they would be more willing to address the real issues facing our nation and our workforce. If the NLRB should somehow get this initiative through, then employers should get something in return–like a mandatory poster outlining the potential unsavory consequences of unionzation. Must keep that wall of posters from tipping too much in one direction.

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