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The National Labor Relations Board's associate general counsel Aug. 26 issued a guidance memorandumon the board's recently adopted regulation requiring private-sector employers to post notices advising employees of their rights under federal labor law.
Associate General Counsel Anne G. Purcell wrote in Memorandum OM 11-77 that U.S. employers subject to NLRB's jurisdiction will be required to post and distribute the rule beginning on or about Nov. 14, and she gave NLRB regional offices a set of frequently asked questions and corresponding answers for their use in fielding public inquiries about the controversial regulation.
Meantime, Rep. Ben Quayle (R-Ariz.) introduced legislation (H.R. 2833) in the House Sept. 2 to repeal the NLRB regulation, stating that his proposed Employee Workplace Freedom Act is intended to stop a “foolhardy” regulation “in its tracks.”
Acting on a 1993 petition for rulemaking filed by Charles J. Morris, now professor emeritus of Southern Methodist University's Dedman School of Law, a divided NLRB proposed the regulation in December 2010 (28 HRR 1382, 12/27/10) and published a final rule in the Aug. 30 Federal Register (76 Fed. Reg. 54,006) (29 HRR 932, 9/5/11).
Citing Section 6 of the NLRA, 29 U.S.C. § 156, which gives the agency authority to adopt “such rules and regulations as may be necessary to carry out the provisions of this Act,” a three-member board majority consisting of then-Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce adopted the rule as a measure to address a “knowledge gap” that they said left most American workers unaware of their NLRA rights.
Member Brian E. Hayes dissented from the board's proposing the rule as well as its final adoption, finding that the act did not authorize the board's action, which he called “patently arbitrary and capricious.”
The rule will take effect 75 days after its publication in the Federal Register, making it effective, Purcell said in her memorandum, “on or about November 14, 2011.”
Purcell cautioned that the public will look to the board's regional offices for guidance about the notice-posting rule and that answering public inquiries will add to regional office workloads. The required notice is not yet available, but the associate general counsel directed local officials to begin keeping a log of requests for the form so that the requests can be fulfilled when the form is published by NLRB.
Once the document is finalized, Purcell said, it will be available for download on the board's website, www.nlrb.gov. Employers will have the option of downloading and posting an 11-by-16-inch poster or two letter-sized panels which can be taped together to create the required 11-by-17-inch posting.
Purcell said employers will be allowed to post black-and-white reproductions of the notice, and also will be permitted to use commercially-produced combination notices that consolidate information about different federal laws on a single document “as long as consolidation does not alter the size, format, content, or size and style of type of the Notice provided by the Board.”
The notice posting rule will apply to private sector employers subject to the board's jurisdictional standards, but the associate general counsel's FAQs acknowledged that there may be questions about coverage of particular employers. Noting that NLRB jurisdiction over religiously affiliated employers “is a complex issue,” Purcell noted “the Board's Rule advised an employer that is unsure whether the Board has jurisdiction over its operations to contact the Board's Regional Office.”
Purcell reviewed the rule's features in the memorandum and advised regional offices that:
• an employer that customarily posts employee notices about personnel rules or policies on an intranet or internet site must display no less prominently either an exact copy of the NLRB-mandated notice or a link to the NLRB web page containing the notice;
• organizations employing vision-impaired or illiterate employees should consult the Board's Regional Office on a case-by-case basis for guidance on appropriate methods of providing the required Notice, including by audio recording;
• federal contractors that post a Labor Department notice of employee rights required by Executive Order 13496 will not be required to post the NLRB notice, because the DOL notice contains an “almost identical” statement of employee rights;
• NLRB regional offices will not conduct inspections to verify that employers have posted notices, but it is anticipated that “an employer's failure to comply with the Rule will be brought to the attention of the employer or the Board by employees or union representatives who are lawfully on the premises”;
• the NLRB rule provides that an employer's failure to post the notice may be treated as an unfair labor practice, but the board expects that inadvertent failures will be resolved by calling the employer's attention to the rule, while continuing failures would result in an unfair labor practice finding and entry of a cease-and-desist order; and
• the rule provides that an employer's knowing and willful failure to post the notice may be used as evidence of an unlawful motive in prosecuting other violations of the NLRA, but such a finding would require that the employer “have actual (as opposed to constructive) knowledge of the Rule and yet refuse, on no cognizable basis, to post the Notice.”
Purcell's memorandum included the text of the NLRB posting that will be required of employers. She said the actual notice form will be available in November.
After the board announced final approval of the rule, Morris, the author of the 1993 rulemaking petition, told BNA the rulemaking action was “better late than never.” With adoption of the rule, he said “employees will now learn about their fundamental rights—rights they never realized they had, including the right to belong to a union and to participate in determining their wages and conditions through collective bargaining, which the statute encourages.”
But Jerry M. Hunter, a former NLRB general counsel who now practices law at Bryan Cave in St. Louis, told BNA in a recent statement that while organized labor sought such a rule for more than 20 years, “the five member Boards appointed by Presidents George H. W. Bush, William Clinton, and George W. Bush did not even consider promulgating such a rule because those Boards realized that they did not have authority under the Act to promulgate such a rule.”
Quayle, a first-term congressman and son of former vice president Dan Quayle, said in a statement announcing the filing of H.R. 2833 that American businesses have faced “an onslaught of new mandates, regulations and taxes” in the past two and a half years.
Calling the NLRB regulation a “needless requirement” outside the NLRB's statutory authority, Quayle charged that adopting the rule was part of a “pattern of behavior [that] was on full display when the NLRB filed an egregious complaint against Boeing Co.”
Quayle's bill provides that the board's Aug. 30 adoption of the notice rule “is repealed,” but also provides that the NLRB “shall not promulgate or enforce any rule that requires employers to post notices relating to the National Labor Relations Act” on or after enactment of the proposed legislation.
By Lawrence E. Dube
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