Comment Period Ends on NLRB Proposed
Rule Regarding Posting Notice Advising
Employees of Their NLRB Rights.
By: Frank L. Carrabba
As most of you know, on December 22, 2010,
the National Labor Relations Board (NLRB)
published a proposed rule that would require
all covered employers to post a notice
informing employees of their rights under
the National Labor Relations Act (NLRA or
Act). The proposed notice is similar to the
notice the Department of Labor approved last
year that is applicable to Federal
contractors. The public comment period on
the NLRB rule ended February 22, 2011.
Before we look at the comments pertaining to
the rule, let's review the contents of the
proposed rule. The text of the proposed
notice would first advise employees of
specific rights they have under the NLRA,
such as to:
The proposed notice also informs
employees that it is illegal for your
- Organize a union to negotiate with
your employer concerning your wages,
hours, and other terms and conditions of
- Form, join or assist a union.
- Bargain collectively through
representatives of employees' own
choosing for a contract with your
employer setting your wages, benefits,
hours and other working conditions.
- Discuss your terms and conditions of
employment or union organizing with your
co-workers or a union.
- Take action with one or more
co-workers 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 a union.
- Strike and picket, depending on the
purpose or means of the strike or the
- Choose not to do any of these
activities, including joining or
remaining a member of a union.
- 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
- Question you about your union support
or activities in a manner that
discourages you from engaging in that
- Fire, demote, or transfer you, or
reduce your hours or change your shift,
or otherwise take adverse action against
you, or threaten to take any of these
actions, because you join or support a
union, or because you engage in
concerted activity for mutual aid and
protection, or because you choose not to
engage in any such activity.
- Threaten to close your workplace if
workers choose a union to represent
- Promise or grant promotions, pay
raises, or other benefits to discourage
or encourage union support.
- Prohibit you from wearing union hats,
buttons, t-shirts, and pins in the
workplace except under special
- Spy on or videotape peaceful union
activities and gatherings or pretend to
The notice also advised employees of
potential unfair labor practices that may be
committed by their union. They are to:
Threaten you that you will lose
your job unless you support the union.
" Refuse to process a grievance because you
have criticized union officials or because
you are not a member of the union.
" Use or maintain discriminatory standards
or procedures in making job referrals from a
" Cause or attempt to cause an employer to
discriminate against you because of your
" Take other adverse action against you
based on whether you have joined or support
Lastly, the notice informs employees that
they should contact the NLRB within six
months if they feel their rights have been
violated. It lists a toll-free telephone
number for the NLRB for the employee to
report unlawful activity by an employer or a
union. The notice also lists the NLRB's
website address for additional information
concerning their rights.
The notice would have to be posted in
places where workplace notices are typically
posted. For employers who communicate with
their employees by e-mail or other
electronic means, the notice would have to
be posted electronically as well.
According to the proposed rule, failure
to post the notice would be an unfair labor
practice under the NLRA and an employer's
knowing failure to post the notice would be
evidence of unlawful motive in NLRB cases
that require proof of motivation to prove an
unfair labor practice, such as an alleged
refusal to hire because of an individual's
union membership or affiliation.
Numerous employers and employer
associations commented on the proposed rule.
The Coalition for a Democratic Workplace,
which includes AGC, furnished comments.
First, the Coalition stated that "Congress
did not authorize the Board to require a
Workplace Notice in the absence of a
Representation Petition or Unfair Labor
Practice Charge". Second, the Coalition
argued that "[t]he Proposed Rules Conflict
with longstanding Board Precedent Concerning
Remedial Notices". Currently, an employer is
required to post NLRB notices only when
election petitions are filed and unfair
labor practices are found. The Coalition's
entire comments can be found at
One would expect the NLRB to publish its
rule in the not-to-distant future. Most
likely there will be litigation if the
Board's final rule approximates the proposed
one. Consult your legal counsel for more
information on how you should prepare for
what is most certainly a significant change
in NLRB policy.
FRANK L. CARRABBA
Frank Carrabba has been engaged in the
practice of labor and employment law for
almost forty (40) years. He represents
employers exclusively in all areas of labor
and employment law, including alleged
employment discrimination, NLRB charges
against employers, union organizing
campaigns, Davis Bacon Act related issues,
alleged wrongful terminations and wage and
His first trial resulted in a U.S.
Supreme Court decision. He began his career
at the NLRB in Washington, D.C. in 1971.
He is board certified in labor and
employment law by the Texas Board of Legal
Specialization. He has been a member of the
Employment Practices Committee of the AGC
Houston Chapter for many years and has twice
edited the Labor Relations Guide and the
Open Shop Field Supervisor's Handbook for
Mr. Carrabba can be reached at 713-621-8363