Proposed NLRB Rule Requires Employers to Post Notice Advising Employees of Unionization Rights

Yesterday the National Labor Relations Board handed organized labor an early Christmas gift: a proposed rule, published in the Federal Register (75 Fed.Reg. 80410) that would require all employers to post a workplace notice advising employees of their rights to unionize under the National Labor Relations Act ("NLRA").

The new posting requirement would make applicable to all employers the same notice mandated by President Obama's Executive Order 13496, which required all federal contractors and subcontractors to post a notice informing employees of their rights under the NLRA. In publishing the proposed rule, the NLRB said sufficient notice of employee rights requires more than a quotation or even summary of the general statement of employee rights found in Section 7 of the NLRA. Instead, "the notice should include a more detailed description of employee rights derived from Board and court decisions implementing those rights."

The NLRB posting requirement would include "examples, again derived from Board and court decisions, of conduct that violates the NLRA." Still, the NLRB's proposed posting would not include a description of nonunion employee rights under Communication Workers v. Beck to refuse to pay union dues and fees for any purpose other than collective bargaining, contract administration, or grievance-related activities. Similar to the legislative attempt to take away the secret ballot union election, omission from the posting of an employee's right to refrain from certain union activities is consistent with organized labor's agenda (and now the agenda of the Obama Administration, too) to downplay, restrict or eliminate employee rights to avoid or refrain from union activities.

Employers failing to post proper notices would be subject to penalties under the proposed rule, including findings of unfair labor practices, cease and desist orders, tolling of the statute of limitations for filing charges, and treating a willful refusal to post the notice as evidence of an unlawful motive in other unfair labor practice cases.

As a practical matter, we do not think the implementation of such a rule would have much of an effect on union organizing activities. Federal and state postings go largely ignored by your employees and it seems unlikely that employees would even notice yet another official-looking poster with more fine print. Employees are more likely to take notice of the policies in your employee handbook and the company's verbal discussion of its compliance with applicable employment laws. As a more practical effect of the new rule, we would expect it to prod employers to take a more proactive approach toward communicating the business case for remaining union-free, whether by policy, open dialogue, or both.

The proposed rule is not final. As an expansion of workplace posting obligations that would affect all employers, the NLRB must first collect public comments on the proposed rule. The deadline to submit a comment is February 22, 2011.

If you have questions about this Advisory, would like assistance in filing a comment on the proposed rule, or have any other question of labor, employment or benefits law, please contact your LMV attorney at (205) 326-3002.