The National Labor Relations Board ("NLRB") has issued
a Notice of Proposed Rulemaking that would require all Employers
subject to the National Labor Relations Act to post
"Notices" physically and electronically.
In a proposed rule issued on December 22, 2010, the NLRB requires
all Employers to post 11 by 17 inch Notices and e-mail employees
(where the Employer customarily communicates with employees by such
means) a Notice identifying the statutory rights of employees to
organize unions. The NLRB intends to punish all Employers who fail
to make the required postings through their unfair labor practice
process.
The Notices explain the statutory protections under the National
Labor Relations Act for employees who desire to form unions. The
Notices will not only inform employees of their rights, wrote the
NLRB, but will also dissuade Employers from violating those
rights.
Employers subject to the National Labor Relations Act are the vast
majority of private sector Employers. Examples of Employers outside
of this class are federal, state, county and municipal employees,
common carrier employees (such as railway and airline workers) and
certain agricultural employees. Virtually all other employees, and
Employers, are within the jurisdiction of the NLRB regardless of
whether or not the employees have previously determined to
unionize.
The proposed rule would necessarily alter the NLRB's statute of
limitations and fact-finding process. The NLRB expressly
anticipates bringing claims against non-complying Employers after
the statutory 6 month statute of limitations tolls where the
charging party (typically an employee) has no previous
understanding of the statutory limitation on actions. Moreover, the
NLRB anticipates that the failure of an Employer to post the
Notices as required will presumptively establish
"anti-union" animus, or motive, making it easier to bring
claims against that Employer on other matters.
The sole Republican on the NLRB, Brian Hayes, dissented from the
Order. Member Hayes wrote "... the Board lacks the statutory
authority to promulgate or enforce the type of rule which the
petitions contemplated and which the proposed rule makes
explicit."
The NLRB will entertain public comment on the proposed rule for a
60 day period, after which it will begin enforcing the rule or make
revisions for further comments. There is also a remote possibility
it will decide not to enact the rule.
In addition to participating in the public comment forum, Dinsmore
and Shohl will closely monitor this process and report to our
clients regarding any further developments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
