NLRB Initiates Rulemaking

December 22, 2010

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 NLRB website.