With the Employee Free Choice Act (ECFA) clearly stalled and not going anywhere in Congress anytime soon, the democratic-controlled National Labor Relations Board (NLRB) is unsurprisingly turning to other avenues in an effort to boost union membership. In doing so, it recently handed a lot of employers a lump of coal in their stockings just in time for Christmas.

Utilizing its seldom used National Labor Relations Act § 6 rulemaking authority, the NLRB proposed a rule on December 20 that would require nearly all employers – even including labor organizations in their capacity as employers – to post notices advising employees of their rights available under the NLRA including the right to organize and bargain collectively as well as information related to the enforcement of those rights. In proposing the rule, the NLRB noted that “only about 8 percent of all private sector employees are currently represented by unions” and indicated that the rule is necessary because “many employees protected by the NLRA are unaware of their rights under the statute.”

When you get to the down and dirty, the proposed rule would require the posting of an 11 x 17 inch Notice which, content-wise, parrots the language adopted by the U.S. Department of Labor’s posting requirements for federal contractors advising employees of their NLRA rights. Proposed sanctions for non-compliance can be heavy, ranging from a finding that a failure to post the required notices to be an unfair labor practice to even considering a “knowing failure” to post the notice as evidence of an unlawful motive in unfair labor cases.

As is required with most agency rulemaking, the NLRB will take comments on their proposal until February 22, 2011 (60 days from the date of publication). The actual proposed rule, background facts and instructions for submitting comments electronically, via mail or hand-delivery may be found at:

Jim Wright concentrates his practice in the area of complex and commercial litigation, particularly in the areas of energy, labor and employment and construction law as well as other business matters. He has also represented professionals before state licensure boards. During his career, he has tried numerous cases in state and federal courts throughout West Virginia and Ohio. He has also argued cases before the United States Court of Appeals for the Sixth Circuit, the West Virginia Supreme Court of Appeals and various appellate courts in the State of Ohio. Jim is a also a recognized leader in the profession, having served as a member of the West Virginia State Bar Board of Governors and currently serving as the State Bar’s Vice President.
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