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Tuesday, December 21, 2010

NLRB proposes rule to require posting of NLRA rights by all employers

By Tommy Eden

On December 21, 2010, the National Labor Relations Board (NLRB) has submitted to the Federal Register a Notice of Proposed Rulemaking, which provides for a 60-day comment period. The rule would require employers to notify employees of their rights under the National Labor Relations Act. Notices would be similar to those detailing rights under safety, wage and anti-discrimination laws

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

As the Notice states, the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The proposed notice is similar to one recently finalized by the U.S. Department of Labor in the spring for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The NLRA applies to most private-sector workplaces. Employers of airline, railroad, and agricultural workers are not covered. Section 6 of the NLRA authorizes the Board to issue “such rules and regulations as may be necessary to carry out the provisions” of the statute.

One member of the NLRB Board, Member Brian Hayes, dissented from the issuance of the proposed rulemaking, stating his belief that “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.”

Public comments are invited on all aspects of the proposed rule, including the issue of the Board’s authority raised by the dissent, and should be submitted within 60 days of publication in the Federal Register, either electronically to, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.

A fact sheet and further information about the proposed rule is available here.

Common Sense Counsel: see my article Regulations Squelching Employer Free Speech. This is the Obama Administration continuing payback initiative to Big Labor by pushing through regulations that they could not otherwise have gotten through Congress. More to come as the rest of the Obama playbook is implemented through regulation rather than legislation.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at