The National Labor Relations Act (NLRA) is one of the few federal employment/labor laws which does not include a specific provision requiring employers to post a notice related to employee rights under that law. That may be about to change. On December 21, 2010, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking, pursuant to which all employers covered by the NLRA would be required to post educational notices which would inform employees of their rights to act collectively, to discuss the terms and conditions of their employment with each other or with a union, and to form a union for purposes of collective bargaining. Under the proposed wording of the Notice to be posted, it will be illegal for an employer to question employees about union-related activities, to stop them from soliciting for union formation during non-work time, and to prohibit them from wearing union insignias on clothing (except in certain special circumstances).
Underscoring the fact that the NLRB is serious about its enforcement of the proposed notice-posting requirement, the Board has announced that an unfair labor practice charge could be filed against an employer that fails to comply with the proposed rule, once it become effective. Also, if an employer fails to post the required notice of employee rights, the Board may find that the 6-month period for filing any unfair labor practice charges by employees of that employer does not begin to run until the Notice is posted or until the employee filing the charge “otherwise acquires actual or constructive notice that the conduct in question may be unlawful,” thereby extending the applicable statute of limitations.
It is of note that the proposed rule provides that an employer’s failure to comply with the notice-posting requirements may have an effect on that company’s defense of other unfair labor practice charges, because the Board may consider “knowing noncompliance with the posting requirement” in determining whether unlawful motive has been established in situations where such an “unlawful motive” is an element of the violation.
If the proposed rule comes into effect, employers with significant numbers of employees who lack proficiency in English will be obligated to post the notice in the language spoken by those workers. Further, employers that customarily communicate with employees via electronic mail will be required to distribute the notice by e-mail or by posting it prominently on the company’s website or intranet.
In short, this proposed rule may make up for the perceived ground that was lost in the legislative fight over the Employee Free Choice Act, which is now viewed as all-but-dead; and while most employees are unfamiliar with their rights under the NLRA, this proposed notice-posting rule will certainly broaden the resources available to employees to educate them about those rights.
Public comment has been invited on the rule and its proposed enforcement provisions. Such comments will be accepted until February 22, 2011, and should be submitted electronically to www.regulations.gov, or can be mailed to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th St., N.W., Washington, D.C. 20570. The final rule, which is likely to be issued in the spring, will take effect by summer, 2011, unless slowed by litigation or action in opposition by Congress.