NLRB Proposes Rule Requiring Employers To Notify Employees Of Their Right To Join A Union

Yesterday, the National Labor Relations Board (“NLRB”) announced that it is proposing a rule requiring employers to notify their employees of their right under the National Labor Relations Act (“Act”) to join a union or to engage in other activities protected by the Act.

The proposed rule would obligate private sector employers whose workplaces are covered by the Act (i.e., the vast majority of employers) to post an 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 need to be posted electronically as well. The notice would be available from the NLRB’s regional offices and could be downloaded from the NLRB website.

The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. According to the NLRB’s press release, 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 rule is likely to increase NLRB litigation and make it more difficult for employers to defend against unfair labor practices. Not only would the proposed rule make an employer’s failure to appropriately post the employee rights notice an unfair labor practice itself (in violation of Section 8(a)(1) of the Act), a failure to post would toll the six month statute of limitations period on other unfair labor practices, and a knowing failure to post could be used as evidence of an employer’s union animus in anti-union discrimination and other NLRB litigation.

Emblematic of the politics of this initiative, the rule was originally proposed in 1993, but only now is there a majority of NLRB Members favoring its implementation. The majority of the current NLRB (Chairman Wilma Liebman and Members Mark Pearce and Craig Becker) are all former union attorneys. Republican Member Brian Hayes dissented from the issuance of the proposed rulemaking, asserting that the NLRB “lacks the statutory authority to promulgate or enforce th[is] type of rule[.]”

The proposed rule will be published in the Federal Register and public comments may be filed within 60 days of publication. A copy of the proposed rule can be found here. It is widely presumed that the NLRB will issue its final rule and require compliance as soon as practicable after the public comment period ends.

We will inform you of any significant future developments regarding the NLRB’s rule.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our website.