NLRB Proposed Rule on Posting Requirements

January 4, 2011

The National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) Dec. 22, 2010 requesting comments on a proposed requirement that all private sector employers subject to theNational Labor Relations Act (NLRA) post a notice in the workplace informing employees of their rights under the NLRA.

However, unlike a simple notice-posting requirement from the NLRB, the proposed rule includes specific sanctions for employers failing to post the notice, including the following:

  • A finding of an unfair labor practice, accompanied by a cease and desist order;
  • Having the time limits for filing of other unfair labor practice charges against the employer extended;
  • Having the NLRB consider the failure to post the notice as evidence of unlawful motive in other unfair labor practice cases.

The proposed rule will use the same language adopted by the Department of Labor in response to Executive Order 13496 issued by President Obama in Jan. 2009 that required federal contractors and subcontractors to post a notice informing employees of their rights under the NLRA. Click here to view a copy of the DOL poster.

NLRB Member Brian Hayes filed a dissent from the decision to proceed with rulemaking, asserting “the Board lacks the statutory authority to promulgate or enforce,” the NPRM.

According to Hayes, “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.”

The NPRM and the NLRB’s fact sheet are available on the Board’s website. Since the proposed rule will affect all private businesses subject to the NLRA, not just those with unionized workforces, the NLRB needs to hear from the business community on the proposed rule’s impact.  Comments are due on or before February 22, 2011.