• Christmas Comes Early for Organized Labor: Obama Board Continues Fulfilling Union Wish List
  • December 27, 2010 | Authors: Keith E. Eastland; Peter J. Kok
  • Law Firm: Miller Johnson - Grand Rapids Office
  • The National Labor Relations Board (the Board) just proposed an administrative rule that would require private employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA), including the right to unionize.  The Obama Board claims this new rule is necessary because the persistent decline in union membership has deprived employees of an important source of information on their rights, acceding yet again to the interests of organized labor.

    What Would the Rule Mean for Employers?

    The proposed rule, if enacted, would impact nearly every private employer in the country.  It would require employers to post a Board-supplied notice in “conspicuous places, including all places where notices to employees are customarily posted.”  The notice would contain information describing employee rights to organize and set forth detailed examples of activities that, in the Board’s view, violate federal labor law.  The notice would also include information on how employees can file unfair labor practice charges against their employers.  Here is a quick summary of the newly proposed rule and remedies:

    • The rule would require employers to post the notice on internal websites or through email if the employer “customarily” uses those methods to communicate with its employees.

    • The rule would make failure to post the notice an unfair labor practice.

    • If an employer fails to comply with the posting requirement, the rule would suspend the NLRA’s six-month statute of limitations for all unfair labor practice charges until the notice is posted.

    • Finally, a “knowing” failure to post the notice would constitute evidence of an unlawful, anti-union motive in any unfair labor practice actions against the employer.

    • Predictably, the rule does not require employers to inform unionized employees of their constitutional right to refuse to pay union dues and fees for any purpose other than collective bargaining, contract administration, or grievance adjustment.

    Is the Board Exceeding its Authority?

    The proposed rule is troubling given its patently pro-labor bent.  It also likely exceeds the scope of the Board’s rulemaking authority.  Indeed, the Board’s lone Republican member, Brian Hayes, refused to support the proposed rule on this basis.  In his dissenting view, he expressed serious concern about the Board’s statutory authority to enact this rule.  For example, unlike other laws referenced by the Board in support of the proposed rule, the NLRA does not expressly require the posting of individual rights notices.  The new rule also attempts to unilaterally abrogate the NLRA’s six-month statute of limitations set by Congress.

    What Can Employers Do?

    Because this is still a proposed rule, the Board must accept public comments for sixty days.  The Board must also respond to all comments before it can enact a final rule.  Employers and associations concerned about the proposed rule’s ramifications should submit their concerns and opposition to the Board in writing.  Such comments can be submitted to the NLRB by mail or through the www.regulations.gov website.