On December 22, 2010 a divided National Labor Relations Board (Board or NLRB) proposed a new rule that would require employers (including labor organizations) subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, which applies to most private-sector workplaces, with exclusions for agricultural, airline and railroad employers.

Although the NLRB has been the nation’s primary source of labor law since 1935, and although it has never previously required such a workplace posting, the Board believes that the proposed posting requirement is needed. In its Notice of Proposed Rulemaking, the Board states that it believes “many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are 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.”

This proposed rule, which was originally proposed by petition to the Board in 1993, has languished for nearly 18 years before now being revived by a Board dominated by appointees of President Obama. Nevertheless, the Board has attempted to describe the proposal as uncontroversial. It states: “Similar postings are already required under the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, among other workplace laws.” However, the Board’s proposed rule goes farther; unlike the postings required under these other federal workplace regulations, the Board’s proposed rule would require employers who communicate regularly with employees via email or electronic bulletin boards to post the NLRB’s notice electronically.

The required posting is expected to be similar to the posting that Executive Order 13496 (“Notification of Employee Rights Under Federal Labor Laws”) already requires federal contractors and subcontractors to post informing employees of their rights under the NLRA and other federal laws. (See February 26, 2009 Bullard Alert.) These rights include the rights to bargain collectively, exercise freedom of association – including the right not to join a union - and designate representatives “for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

As noted above, a divided Board proposed this rule. Board Member Brian Hayes dissented from the Board’s proposed rule because he does not believe the Board has the statutory authority to make or enforce such a rule. The Board’s rulemaking authority is defined in the NLRA, which delegates to the Board the ability to create rules with the force of law without legislative action; however, those rules must be consistent with the NLRA and the dissent believes that this proposed rule exceeds the delegated authority. Among other things, the dissent states: “To the contrary, Section 10 of the Act indicates to me that the Board clearly lacks the authority to order affirmative notice posting action in the absence of an unfair labor practice charge filed by an outside party. For that reason, without regard for whether a notice-posting requirement would further the purposes of the Act if the Board had the authority to impose it, I would have denied the petitions for rulemaking.”

The public may comment on the proposed rule for 60 days after its December 22, 2010 publication in the Federal Register. Public comments may be submitted electronically to www.regulations.gov or by mail to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington, DC 20570.

Although there is no action required at this point, this proposed rule presents a good opportunity for proactive employers to review existing policies, wage rates, benefits and other issues, and analyze their vulnerability to union organizing campaigns. Because employees may soon have a heightened awareness of their right to organize in the workplace, employers also should consider auditing their solicitation and distribution policies, and their ability to immediately respond to any union organizing efforts. Please feel welcome to contact Bullard Law for assistance with these projects, or any other labor, employment and benefits questions.

- Sarah M. Petersen and Jennifer A. Sabovik