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Post Workers' Rights? The NLRB Proposes New Rule

Non-union employers may be required to post a notice in the workplace telling employees they have a right to organize and join a union under a recently proposed rule. The National Labor Relations Board (NLRB), in a rare exercise of its rule-making authority, issued a proposed rule requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA). The NLRA applies to most private-sector workplaces, although employers of airline, railroad, and agricultural workers are not covered. In addition, the proposed rule does not apply to federal or state governments or political subdivisions.

According to the Board, “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.”

Private-sector employers, including unions, who are subject to the NLRA, would be required to post the employee rights notice with other workplace notices. If an employer communicates by email or other electronic means, the notice must also be posted electronically. The proposed notice is very similar to one recently finalized by the U.S. Department of Labor for federal contractors. It provides that employees have the right to:

• Act together to improve wages and working conditions

• Form, join, and assist a union

• Bargain collectively with their employer

• Choose not to do any of these activities

The notice would also give examples of illegal activities by employers and unions and instruct employees how to contact the NLRB with any complaints or questions.

Similar postings are already required in the workplace under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Occupational Safety and Health Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Family and Medical Leave Act.

The proposed rule was published in the Federal Register on December 22, 2010 and is now subject to a 60-day comment period.

Message to Employers:  Because this is a proposed rule, employers subject to the NLRA are not yet required to post the notice. Only when the Board issues a final ruling will posting of the notice be required. If the rule is implemented, the Board will treat a failure to post the notice as an unfair labor practice. The Board generally investigates allegations of unfair labor practices made by employees, unions, employers, or other persons. It does not generally initiate enforcement action on its own. If the rule is implemented, the notice will be available at the agency’s regional offices and can also be downloaded from the NLRB website.