On December 21, 2010, the National Labor Relations Board ("NLRB" or "the Board") submitted a Notice of Proposed Rulemaking which, if enacted, would require most private sector employers to provide notices informing employees of their rights to organize, bargain collectively, and engage in other union-related activities without retaliation from their employers. This proposed rulemaking is now subject to a required 60-day comment period, after which it is widely-anticipated that the rule will be enacted in full. In June of last year President Obama's Executive Order 13496 became effective. This Order requires federal contractors and subcontractors to post notices of employees' rights under the National Labor Relations Act ("NLRA"). The new proposed rule affecting private sector employees is similar to that which now applies only to federal contractors. The NLRB maintains that American workers are largely ignorant of their rights under the NLRA, and this ignorance stands as an obstacle to the effective exercise of such rights. The Board believes that one reason for this purported ignorance among employees "surely is that, except in very limited circumstances, no one is required to inform them of those rights." To increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote compliance with the law by employers and unions, the NLRB specifically has provided sanctions and remedies that may be imposed upon an employer that fails to comply with the proposed notice requirements. Specifically, the Board has offered the following as penalties for failure to comply:
- Failure to post the required notice will constitute an unfair labor practice.
- The six-month statute of limitations currently existing for filing unfair labor practice charges against employers will be "tolled" or "suspended" for any employer failing to post the notice.
- The "willful failure" to post notices shall constitute evidence of unlawful motive in any unfair labor practice cases which such employer may face.
The formal notice proposed by the Board must be at least 11" x 17" in size and posted in "conspicuous places, including all places where notices to employees are customarily placed." The NLRB has drafted the proposed notice - which will likely become commonplace in workplaces in substantial form - and included it within its Notice of Proposed Rulemaking. Notably, employers that normally communicate through e-mail or web postings will be required to transmit notice through such modes of communication as well. Employers with "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 Board will make available posters containing the necessary translations. The Notice of Proposed Rulemaking, including the proposed poster which is included in the Appendix to Subpart A, can be accessed by going to: http://www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf. The Notice of Proposed Rulemaking, within its "Overview" section, provides instruction as to how concerned employers can submit comments, both electronically and via regular mail, before any final rule becomes effective. Most believe that any comments submitted are unlikely to cause any substantial change.