By: James B. Sherman, Esq. & Chad A. Staul, Esq.

Many of you will recall that in September of 2009 our office, with the assistance of your valuable input, submitted formal comments on the Department of Labor's (DOL) Notice of Proposed Rule Making requiring federal contractors to post a "Notification of Employee Rights under Federal Labor Laws." On December 22, 2010, with the ink barely dry on the final rule (provided in May of 2010) the Obama administration moved to further expand its efforts to promote private sector unionization. On that day, the National Labor Relations Board ("NLRB") published a proposed rule that would require all private sector employers covered by the National Labor Relations Act ("NLRA") to post a notice informing employees of their NLRA rights even if there is no union in place.

Although the proposed rule appears to be aimed at providing the same notice content as the one the DOL now requires of federal contractors, there are some very key differences. Unlike the rule for federal contractors, which only applied to a specific portion of employers, the proposed rule would create considerable compliance obligations for a large majority of private sector employers. Perhaps more important given this wide application is the extensive liability an employer would face for failing to comply with the proposed requirements. As noted by dissenting NLRB Member Brian Hayes: "Going well beyond [the requirements under the recent Notification of Employee Rights for federal contractors] the proposed rule here would further impose unfair labor practice liability for any failure to post a notice and would also suspend the Section 10(b) limitations period for any unfair labor practice charge against a noncompliant employer."

In other words, failing to post the notice under the proposed rule would: (1) be seen as an unfair labor practice; (2) could result in suspending the six-month statute of limitations for filing unfair labor practices charges; and (3) potentially be used as evidence of an unlawful motive in a case involving other alleged NLRA violations.

The proposed rule, along with the NLRB's fact sheet and press release can be found at:

http://www.nlrb.gov/about_us/news_room/Notice_for_Rulemaking/index.aspx.

The prospect of a mandatory notice about union organizing in the workplace, along with severe penalties for failing to comply with the notice requirements, is reason for every employer to evaluate its response to possible union activity. We invite you to provide feedback to our office regarding the proposed rule and to contact any Wessels Sherman attorney if you have further questions about this matter and how it might affect your business.