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December 22, 2010

NLRB Issues Notice of Proposed Rulemaking Requiring Employers to Notify Employees of Right to Organize

Virtually all private employers, whether or not their employees are unionized, may soon be required to post notices of their employees’ rights under the National Labor Relations Act (“NLRA”).  On December 21, 2010, the National Labor Relations Board (the “Board”) announced a proposed rule that would require employers under its jurisdiction to post workplace notices informing employees of their rights to organize and bargain collectively.  The full text of the proposed rule is available here.  A copy of the proposed posting is set forth in the Appendix to the proposed rule. 

The proposed rule would require every employer to post an 11-by-17-inch poster and distribute the notice electronically, “if the employer customarily communicates with its employees by such means.”  Additionally, if a significant number of the employer’s employees are not proficient in English, the employer must provide the required electronic notice in the language the employees speak.

The proposed rule is patterned after similar posting requirements under the Fair Labor Standards Act, the Family and Medical Leave Act, and the recent Department of Labor rule requiring Federal contractors to post notices of employees’ NLRA rights.  The proposed notice includes a detailed description of employees’ rights derived from Board and court decisions implementing those rights.  The notice informs employees of their rights under the NLRA, including the right to:

  • Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment;
  • Form, join or assist a union; and
  • Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.

The notice also provides several examples of unlawful behavior under the NLRA and contains information about filing an unfair labor practice charge with the Board.

The Board has proposed a number of sanctions for failure or refusal to post the required employee notices, including: (1) finding the failure to post the required notices to be an unfair labor practice under Section 8(a)(1); (2) tolling the six month statute of limitation for filing unfair labor practice charges against employers that fail to post the notices; and (3) considering the knowing failure to post the notices as evidence of unlawful motive in an unfair labor practice case.

The public will have 60 days to comment on the proposed rule.  We will keep you apprised of developments.  If you should have any questions regarding the proposed rule, please contact us.