NLRB Embarks on Rulemaking; Proposes Mandatory Posting of Employee Rights

The National Labor Relations Board (NLRB) has issued a proposed rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA).  The proposed rule establishes the size, form, and content of the notice, and sets forth provisions regarding sanctions and remedies for noncompliance. The content of the proposed notice is substantively identical to a notice that must be posted by most federal contractors pursuant to federal contract clauses now required by a regulation issued by the Department of Labor (DOL) implementing Executive Order 13496 last May.  Also like the DOL rule, the NLRB proposed rule includes an electronic posting requirement in addition to a hard-copy posting requirement.  The proposed rule offers some comfort to federal contractors by providing that employers in compliance with the DOL requirement will be deemed to be in compliance with the NLRB requirement. The proposed rule would render failure to post the required notice an unfair labor practice under the NLRA and knowing failure to post as evidence of an unlawful motive in cases where the employer’s motive is relevant.  The proposed rule would also toll the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices. The NLRB does not normally issue regulations, and the present rulemaking is controversial – though not unexpected due to statements made by NLRB Chairman Wilma Liebman soon after taking the helm – on several levels.  Litigation over the agency’s authority to issue regulations and, in particular, to issue a regulation that creates a new unfair labor practice is possible. Comments are due to the NLRB by February 22.  AGC is presently considering whether to submit comments, individually or in conjunction with other employer organizations.  AGC submitted comments during the DOL rulemaking process, asserting, among other things, that the content of the proposed notice should contain more balanced information, including the rights of employees who do not wish to join a union and including examples of illegal union conduct along with those of illegal employer conduct. For more information, contact Denise Gold, Associate General Counsel, at (703) 837-5326 or goldd@agc.org.