By Edwin S. Hopson
In a press release dated December 21, 2010, the National Labor Relations Board (in a 3 to 1 decision) announced that on December 22, 2010, it would publish in the Federal Register a Notice of Proposed Rulemaking which rule would require all employers subject to the National Labor Relations Act (“Act”) to post a notice advising employees of their rights under the Act. The Notice of Proposed Rulemaking provides for a 60-day comment period.
Citing its belief that many employees covered by the Act “are unaware of their rights under the statute” the Board stated that “[t]he 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,” according to the December 21, 2010 press release.
Thus, all private-sector employers (including unions which have employees) who are subject to the Act would be required to post the employee rights notice where other workplace notices are typically posted. In addition, if an employer communicates with employees primarily by email or other electronic means, the notice would have to be posted electronically as well. According to the press release, the Board’s notice would be available from the agency’s regional offices across the country and additionally could be downloaded from the Board’s website at http://www.nlrb.gov.
The proposed notice is similar in content to one recently finalized by the U.S. Department of Labor for federal contractors. The Board made clear that a posting by federal contractors will satisfy the proposed notice posting. The content of the proposed posting 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 refrain from engaging in any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
The Board pointed out that similar postings are specifically required in the statutory framework of the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, among other workplace laws, yet, Congress has never seen fit to amend the National Labor Relations Act to provide for notice postings.
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.”
The actual wording of the proposed notice is as follows:
“EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT
“The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.
“Under the NLRA, you have the right to:
• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.
“Under the NLRA, it is illegal for your employer to:
• Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you
choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.
“Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:
• Threaten you that you will lose your job unless you support the union.
• Refuse to process a grievance because you have criticized union
officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take other adverse action against you based on whether you have joined or support the union.
“If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
“Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website:
You can also contact the NLRB by calling toll-free:
1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.
“*The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).
“This is an official Government Notice and must not be defaced by anyone.”
According to the press release, “[p]ublic 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 http://www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.”