When the Employee Free Choice Act (EFCA) died in Congress, many observers predicted the Obama administration’s efforts to help unions organize workers would shift to the National Labor Relations Board (NLRB), where the president had installed a pro-union majority.

Two December 2010 developments at the NLRB indicate that process is underway. The board proposed a rule that would require all employers covered by the National Labor Relations Act (NLRA)–an estimated 6 million businesses–to post a notice detailing employees’ rights under the act. Critics say it is worded to encourage workers to file unfair labor practice charges against their employers. And the board’s acting general counsel urged regional offices to seek enhanced penalties in conjunction with requests for injunctive relief for alleged violations of the act during an organizing campaign (see “Injunction Instructions”).

The board argues that the notice-posting–which, if adopted, would apply to most non-union as well as union workplaces–is necessary because many employees, particularly recent immigrants, are unaware of their rights under the NLRA. Outside counsel who represent employers on labor issues dispute that contention.

“There is no basis for saying employees are unaware of their rights, but that is the sum and substance of their rationale for why they need the [posting] rule,” says James Walters, a partner at Fisher & Phillips. “It’s an attempt to publicize unions because EFCA failed and is probably dead for the foreseeable future.”

Posting Provisions

The proposed posting rule marks the first time in the 75-year history of the NLRB that all covered employers would be required to post a notice. In the past, NLRB notices were limited to remedies: Employers found by the courts to have engaged in an unfair labor practice could be required to post a notice to employees for a period of time.

“The NLRB has always viewed notice- posting as part of the remedy,” says Walters. “When you settle a case or an employer is found guilty [of an unfair labor practice], the notice goes up and then it comes down. That’s the purpose it’s always had.”

The proposed notice of employee rights, on the other hand, would be a permanent fixture in workplaces, displayed in “all places where notices to employees are customarily posted.” Employers with a significant number of workers who are not proficient in English would have to provide the notice in the language the employees speak. The wording on the 11-by-17-inch poster would be identical to what the Department of Labor (DOL) began requiring government contractors to post last year (see “Fair Warning,” in the November 2010 issue of InsideCounsel). The NLRB added a new twist–it would require employers who regularly communicate with employees by e-mail or other electronic means to distribute the posting that way as well.

Act Light

Employers’ counsel object to the wording on the proposed poster, which they say promotes unionization.

“This is basically EFCA light,” says Walters. “They are trying not just to get awareness of unions, but the inference is that people should exercise their rights in a particular direction.”

Critics also say that rather than sticking to the rights specified in the NLRA, the poster verbiage goes too far in citing examples of possible unfair labor practices.

“If you start trying to give examples in a short notice, you run the risk of confusing employees about what the law really is when applied,” says James H. Fowles III, a shareholder at Ogletree Deakins. “Everything [in unfair labor practices cases] is very fact specific. This has the potential of generating unfounded unfair labor practices charges.”

For example, the wording of the proposed posting tells employees it is illegal for employers 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.”

Jay Sumner, a shareholder at Littler Mendelson, says this excerpt underscores the problem of oversimplified examples.

“What is a work area versus a nonwork area? What is work time versus nonwork time? All that is very important,” says Sumner. “The fear is that employees will see this notice and act on it, and we could see a lot more NLRA charges filed in non-union workplaces.”

Penalties Provisions

The proposed rule adds a new unfair labor practices charge for failure to comply with the posting requirement, with sanctions including extending the statute of limitations for employees to file charges against the employer. The failure to post could also be considered as evidence of unlawful motive in unfair labor practice cases.

“These types of per se remedies potentially raise due process concerns,” says Fowles. “In our opinion, those are things that need to be adjudicated, not decided by rules.”

It may be a while before employers have to confront the posting rule and its remedies, however. Once the rule is finalized, most observers expect a legal challenge, probably led by the U.S. Chamber of Commerce.

Board Member Brian Hayes set the stage for a court case in his dissent from the proposed rulemaking. Hayes stated that “the board lacks the statutory authority to promulgate or enforce the type of rule which … the proposed rule makes explicit.” In other words, a court challenge likely would be based on the fact that the NLRA does not specifically authorize the board to require notice-posting, unlike other employment statutes such as the Fair Labor Standards Act, which does require employers to post the current minimum wage.

“The argument would be that if Congress had wanted to give the board authority to require employers to post notices, it would have put that in the act,” says Sumner.