On December 21, 2010, the National Labor Relations Board (“Board”) issued a Notice of Proposed Rulemaking that would require employers subject to the National Labor Relations Act (“Act”) to post (and in some cases electronically distribute) notices that describe employees' rights under the Act. Members of the public can submit comments regarding the proposal for 60 days, until February 22, 2011.

The Board explained that the proposed rule is intended to increase employees' knowledge of the Act, to better enable employees to exercise their rights under the Act and to promote statutory compliance by both employers and unions. The Board observed that a “knowledge gap” exists between the rights the Act affords to employees and the knowledge employees have of these rights and hypothesized the reasons for the gap include the increasing proportion of immigrants in the workplace, the lack of awareness by high school graduates entering the work force, and the fact the overwhelming majority of private sector employees are not represented by a union.

The Board proposes to adopt the language of the Department of Labor’s (“DOL”) final rule requiring Federal contractors to post notices of employees’ rights under the Act (29 CFR Part 471). The proposed rule would require all employers covered by the Act to post a notice informing employees of their rights to form, join or assist labor organizations, to bargain collectively, to engage in other concerted activities and explaining the Board’s role in investigating and resolving complaints under the Act. The notice also gives examples of conduct (both by employers and unions) that the Board considers to be illegal under the Act.

According to the Board, it will make the notices available both electronically and in hard copy and employers will be expected to post the notices in conspicuous places, including areas that the employer customarily posts other employment-related notices to employees. Under the proposed rule, employers that normally distribute employment law-related notices to their employees electronically, such as via email or posting on an intranet site, will be required to supplement the posting of hard copy notices with electronic notices. Moreover, employers with significant numbers of workers that do not have proficient comprehension of English will be required to post the notices in a language understood by such employees.

In the event an employer fails to post the notice, the Board proposes several sanctions including: (1) finding the failure to be an unfair labor practice, (2) tolling the statute of limitations for filing unfair labor practice charges against the employer and (3) considering a knowing failure to post as evidence of unlawful motive in unfair labor practice cases.

Despite, and possibly in reaction to, Congress’s failure to pass the Employee Free Choice Act, recent actions by the NLRB, including this proposed rule and Memorandum GC 11-01, issued by the Board’s General Counsel (announcing an initiative to seek appropriate remedies in response to serious unfair labor practices committed by employers during the course of an initial union organizing campaign), indicate that the Board will be seeking non-legislative means, including rulemaking, to advance its agenda.