On December 22, 2011, the National Labor Relations Board (NLRB) published a proposed rule in the Federal Register that, if adopted, would require employers, including many small businesses, to post a conspicuous notice in the place of employment informing employees of their rights under the National Labor Relations Act (NLRA).  The NLBR solicited public comments on the proposed rule.  The comment period expired February 22, 2011.

Under the NLRA, employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

According the proposed rule, “The NLRA is almost unique among major Federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces informing employees of their statutory rights. Such postings are required under the Fair Labor Standards Act,  Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, the Family Medical Leave Act, the Uniformed Service Employment and Reemployment Rights Act, the Railway Labor Act, the Employee Polygraph Protection Act, the Migrant and Seasonal Agricultural Workers Protection Act,  and other Federal statutes.   Thus, the NLRA stands out as an exception to the widespread notice-posting practice that has long been common in the workplace, even though it is the basic Federal labor law protecting private-sector employees who act together to address terms and conditions of employment.”

The Labor Department currently requires Federal contractors to post the following notice to employees:

“Employee Rights Under The National Labor Relations Act’’

‘‘The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

‘‘Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

‘‘Under the NLRA, it is illegal for your employer to:

• Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

‘‘Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten you that you will lose your job unless you support the union.
• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take other adverse action against you based on whether you have joined or support the union.

‘‘If you and your coworkers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

‘‘Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov. ‘‘Click on the NLRB’s page titled ‘‘About Us,’’ which contains a link, ‘‘Locating Our Offices.’’ You can also contact the NLRB by calling toll-free: 1–866–667–NLRB (6572) or (TTY) 1–866– 315–NLRB (6572) for hearing impaired.

‘‘* The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public- sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

“This is an official Government Notice and must not be defaced by anyone.”

It is likely that the NLRB will require a similar notice for covered employers in the final rule.  In addition, the proposed rule states that employers that have significant numbers of employees who are not proficient in English will be required to post notices of employee rights in the language or languages spoken by significant numbers of those employees. The NLRB will make available posters containing the necessary translations.

In addition to requiring physical posting of paper notices, the proposed rule requires that notices be distributed electronically, such as by e-mail, posting on an intranet or an internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means.  An employer that customarily posts notices to its employees on an intranet or internet site must display the required employee notice on such a site prominently—i.e., no less prominently than other notices to employees. The NLRB proposes to give employers two options to satisfy this requirement. An employer may either download the notice itself and post it in the manner described above, or post, in the same manner, a link to the NLRB’s website that contains the full text of the required employee notice. In the latter case, the link must contain prescribed introductory language from the poster.

The NLRB has proposed the following sanctions for failure or refusal to post the required employee notices: (1) Finding the failure to post the required notices to be an unfair labor practice; (2) tolling the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices (Note: the statute of limitations for filing an unfair labor practice charge is six months); and (3) considering the knowing failure to post the notices as evidence of unlawful motive in unfair labor practice cases.  It will be unlawful for an employer to threaten or retaliate against an employee for filing charges or testifying in a NLRB proceeding involving an alleged violation of the notice-posting requirement.

The NLRB notice requirement will not apply to small businesses over which the NLRB does not have or has chosen not exercise jurisdiction.  The list of such businesses is fact-specific and depends on the type of business and the annual gross revenue (ranging from $100,000 to $1 million).  A complete discussion of the NLRB’s jurisdictional standards may be found in An Outline of Law and Procedure in Representation Cases, Chapter 1, found on the NLRB website, www.nlrb.gov.

One member of the NLRB, Brian E. Hayes, dissented from the decision to issue the proposed rule.  Mr. Hayes said in his dissent, “I believe 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.”

If the proposed rule is adopted, which seems likely, we may have to wait a long time for a court challenge but it will eventually occur.

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