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Washington Labor & Employment Wire » NLRB Proposes Posting Requirements Through Rarely-Used Rulemaking

NLRB Proposes Posting Requirements Through Rarely-Used Rulemaking


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Utilizing its rarely-used rule-making authority, the National Labor Relations Board on December 21, 2010 announced a proposed rule that would require all private employers under its jurisdiction to post workplace notices of statutorily-protected employee rights. The proposed rule is intended to inform employees - both unionized and non-unionized - of their rights under the NLRA and is patterned after similar posting requirements under the Fair Labor Standards Act, the Family and Medical Leave Act, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. Non-NLRA employers, including employers of railroad, airline, and agricultural workers, would not be affected by the proposed rule.

The proposed rule would require employers to post an 11-by-17 inch poster in the workplace and, where the employer regularly communicates electronically with its employees, distribute an electronic version of the poster. The poster would be provided for download on the NLRB website, as well as in hard copy form at NLRB regional offices. Under the proposed rule, failure to adhere to the posting requirements would be considered an unfair labor practice under NLRA Sec. 8(a)(1) and, in cases of knowing violations, could be considered evidence of unlawful anti-union sentiment in NLRB proceedings in which employer motive is at issue. The NLRB has clarified that, at least during a transition period, non-compliant employers unaware of the posting requirement would usually not face penalties if they promptly rectified the non-compliance.

The Board approved the proposed rule over the dissent of the Board’s lone Republican, Brian E. Hayes, who argued that the posting requirement is beyond the scope of the Board’s NLRA Sec. 6 power to issue “such rules and regulations as may be necessary to carry out the provisions” of the NLRA. 

The NLRB will be accepting comments on the proposed rule for 60 days following its publication in the Federal Register.  More information can be found here.