Throughout its 75-year history, the National Labor Relations Board (NLRB)
has, with one exception, chosen to advance its interpretation of the law through
decisions in individual cases. That approach, however, limits what the NLRB can
do in terms of expansively changing its policy and its impact on employers.
Over the past few years, Chairman Liebman has been very vocal about the need
for the NLRB to consider rulemaking as an alternative approach. She recently
invited law professors to train NLRB employees in rulemaking procedures under
the Federal Administrative Procedure Act. It was thus a foregone conclusion that
at some point, the Obama Board would initiate rulemaking, and the only questions
were when and in what area.
In a notice of proposed rulemaking published to the Federal Register on Dec.
23, the NLRB has made its first move. It has proposed a rule covering employers
subject to the NLRB’s jurisdiction (thus excluding railroads, airlines,
governmental entities, and a few very small businesses). Covered businesses
would be required to place in prominent places in their worksites a government
furnished poster, “Employee Rights under the National Labor Relations Act (NLRA).”
This poster is intended to be identical to the poster federal contractors are
currently required to post concerning employee rights under the NLRA.
The proposed rule states that the poster is intended to make all employees
aware of their rights under the NLRA, including the right to join unions, as
well as to educate employees about employer unfair labor practices. Some parts
are troublesome in the way they are worded, such as the statement employees have
the right to “[t]ake action with one or more co-employees 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
the union,” as well as engaging in strikes and picketing. It also lists the
kinds of things employers are forbidden to do which are covered in the standard
supervisory training acronym: Employers may not Threaten, Interrogate, make
Promises, or undertake Surveillance to deter union activities (TIPS).
In what will be the most challenged aspect, the NLRB claims the inherent
power effectively to create a new unfair labor practice and impose the following
penalties for failure to post: find the employer guilty of an unfair labor
practice; toll the 6-month statute of limitation for filing unfair labor
practice charges so long as the notices are not posted; and treat certain
failures to post the notices as “evidence of unlawful motive in unfair labor
practice cases.” Where the general counsel is required to show an unlawful
motive, this would greatly ease the general counsel’s burden of establishing a
violation and make defense difficult.
This will be challenged in the courts, and resolution must in all likelihood
await a long series of appeals, including to the U.S. Supreme Court. The most
frightening aspect, however, is the possibility that the rather short 6-month
statute of limitations in the Act could be stayed for the entire time.
Interested persons may file comments to the NLRB for 60 days. The full text
and the method of filing comments can be accessed at the