National Labor Relations Board Flexes Its Rule-Making Muscle
The National Labor Relations Board announced this week a proposed rule that would require employers to display a poster advising employees of their rights under the National Labor Relations Act.
The Board rarely has exercised its rule-making authority during its 75-year history. Historically, the Board has exercised its jurisdiction over labor management relations by deciding unfair labor practice charges and other matters on a case by case basis.
Under the proposed rule, employers subject to the Board’s jurisdiction would be required to post and maintain in conspicuous places a copy of the Board’s proposed poster, such as those presently required by the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA). Employers may also be required to send the notice to employees electronically by email or via the employer’s own intranet.
The Board’s proposed poster advises employees that they have the right to:
- Organize a union to negotiate wages, hours, and other terms and conditions of employment.
- Form, join, or assist a union.
- Discuss the terms and conditions of their employment with co-workers.
- Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints and seeking help from a union.
- Strike and picket, depending on the purpose or means of the strike or picketing.
The Board’s notice further advises that it is illegal for an employer to retaliate against employees for engaging in union activities, to prohibit employees from soliciting for a union during non-work time and in non-work areas, and to question employees about union activities in a manner that discourages such activity.
Failing to post the notice could subject an employer to an unfair labor practice charge or worse. Under the rule, the six-month statute of limitations that applies to employer unfair labor practice charges could be tolled if the employer has failed to post the notice. If the Board finds that the employer "knowingly" failed to comply with the posting requirement, the Board will presume that the employer has an unlawful motive to discriminate against employees who engage in union activity.
More information is available on the Board’s website. Comments to the proposed rule must be submitted by February 22, 2011. If you have any questions about the status of the Board’s proposed rule, please contact a member of Taft’s labor and employment practice group.
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