As 2010 draws to a close, the National Labor Relations Board shows no signs of slowing down. On the heels of yesterday’s announcement by the Acting General Counsel that Regional Offices should seek unique and broader remedies in organizing cases, the Board today has submitted to the Federal Register a Notice of Proposed Rulemaking. The proposed rule would require all covered employers to notify employees of their rights to organize and bargain collectively by posting a notice in their workplace.
The Board’s submission states that 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.
Failure to post the notice would be considered an unfair labor practice by the Board — presumably within the language of Section 8(a)(1) of the Act. This proposed notice is similar to one finalized earlier this year by the U.S. Department of Labor for federal government contractors. The proposed poster, set forth in the Appendix to the Notice of Proposed Rulemaking, states:
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.
The proposed notice continues, listing several examples of unlawful behavior under the NLRA. The Board’s submission includes the dissenting view of Member Brian Hayes, which questions the Board’s authority to impose such a requirement, and sanctions for non-compliance. Public comments on the proposed rule may be filed with the Board’s Executive Secretary within sixty (60) days of publication in the Federal Register, expected later today.
Interestingly, the Board acknowledges that this rule was originally proposed in a petition to the NLRB by Charles Morris, Professor Emeritus of Law, Southern Methodist University, in 1993. Professor Morris is known for a number of novel legal theories in support of expanding collective-bargaining rights under the NLRA. Most recently, the arguments outlined in his book, "The Blue Eagle at Work" provided the foundation for a United Steelworkers effort before the Board in furtherance of minority union bargaining rights.