By Patrick Scully
We have warned in past newsletters of the National Labor Relations Board's ("NLRB" or "Board") intent to change existing law under the National Labor Relations Act ("NLRA" or "Act"), not by way of legislative amendment, but rather, through its administrative rulemaking authority. Under the guise of "interpreting" and "implementing" sometimes sparse statutory law, an agency may create rules that significantly change substantive law. One such maneuver commenced on December 22, 2010, when the NLRB published a proposed rule that would require all private employers under the Board's jurisdiction (not just those with unionized employees) to post a notice informing workers of their rights under the Act. 75 Fed. Reg. 80410; see also, http://www.federalregister.gov/articles/2010/12/22/2010-32019/proposed-rules-governing-notification-of-employee-rights-under-the-national-labor-relations-act. Under the proposed rule, the mere failure to post the required notice would be an unfair labor practice and would extend the NLRA's six-month statute of limitations on any other violation of the Act.
The proposed notice would be similar to the notice utilized by the U.S. Department of Labor for its rule requiring federal contractors to post a notice of NLRA rights.
The Board's proposed rule would also require electronic posting and/or distribution of the NLRA notice if an employer uses such electronic means to communicate with employees regarding their terms and conditions of employment. As reported in past newsletters, the NLRB recently expanded its remedial posting guidelines to include electronic postings, in J. Picini Flooring, 356 NLRB No. 9 (October 22, 2010).
In its proposed rulemaking and request for comments, the NLRB stated that it "believes that many employees protected by the NLRA are unaware of their rights under the statute." However, it did not cite any empirical data suggesting either that employees are widely unaware of their NLRA rights, or that a required notice would remedy the alleged awareness gap. In "support" of its proposal, the NLRB cited two law review articles from 1995 and 1993 that suggested the absence of a required official notice "disempowers employees." The lack of data supporting the Board's rationale suggests that the proposed rule is simply the most recent in a series of attempts to bolster the ever-shrinking labor movement.
Parties have 60 days (through February 21, 2011) to submit comments to the proposed rule. Member Hayes, who dissented from the proposed rulemaking, suggested that those opposed to the rule comment on the absence of Board authority to mandate such posting.
Please contact us if you have any questions regarding the proposed rule.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
©2011 Sherman & Howard L.L.C. January 4, 2011