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The National Labor Relations Board (“NRLB”) recently proposed a regulation that would require virtually all employers to post an 11” by 17” poster advising employees of their right to unionize under the National Labor Relations Act (“NLRA”). 

Previously (on January 30, 2009), President Obama signed Executive Order 13496, which required such a posting but only applied to federal contractors.  That was the first time employers faced such a requirement.  The pro-union, Democratically-controlled Board now seeks to place these posters in almost every workplace. 

What the Notice Says

In the opening paragraph, the notice instructs employees to contact the NLRB “if you have any questions about specific rights that may apply in your particular workplace.”  Next, the notice lists various rights employees have under the NLRA, including the right to

• “Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.”
• “Form, join or assist a union.”
•  “Take action with one or more co-workers to improve your working conditions by . . . seeking help from a union.”

Further, the notice warns employees about seven different types of possible illegal conduct by their employer.

The notice concludes by instructing employees who feel their rights (or the rights of other employees) have been violated to promptly contact the NLRB.  The notice contains the NLRB’s website and 800 number.  For a complete copy of the proposed notice, click here.

Is This Proposed Rule Legal?

Federal agencies, like the NLRB, are only allowed to enact rules (also called regulations) consistent with the authority given by federal statutes.  The process begins when an agency issues a “Notice of Proposed Rulemaking” which proposes a regulation and solicits comments from the public during a period of time (in this case 60 days).  After such period, the agency typically issues a “final rule,” sometimes containing modifications in response to comments received.  The final rule is essentially treated as binding, federal law.

In this case, the NLRA states, “The Board shall have authority . . . to make . . . such rules and regulations as may be necessary to carry out the provisions of this Act.”  The NLRA contains no provision requiring the posting of any notice of rights.  Republican Board Member, Brian Hayes, points this out in his dissent from the Board’s action, stating, “I believe the Board lacks the statutory authority to promulgate or enforce [this] type of rule.”  Interestingly, even Board’s Democratic majority acknowledged this in its Notice of Proposed Rulemaking: “The NLRA is almost unique among major Federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces informing employees of their statutory rights.”  Thus, the Board arguably lacks the authority to enact this rule, and there will likely be litigation challenging it if the rule becomes final.

What this Means for Employers

First, regardless of whether it becomes final, the very proposal should remind us of the current Board’s strong pro-union stance.  Such leanings may encourage unions to be more aggressive in their quest to unionize more workplaces.    

Second, if the rule becomes final, the notice will likely achieve its intended purpose of heightening employee awareness with regard to NLRA rights.  It is possible employees will heed the NLRB’s invitation to contact them with all kinds of complaints.  Worse yet, there may be an increase in discrimination and retaliation claims under the NLRA.  Finally, its mere existence may give employees the impression that unions are gaining strength in the workplace and encourage more and successful union organizing. 

Third, if passed, the rule places one more compliance obligation on employers.  The NLRB proposes to find employers who fail or refuse to post the notice to be “interfereing with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7,” in violation of the NLRA.  

Lastly, the proposed rule prohibits retaliation against employees who file charges or testify in a Board proceeding relating to an employer’s failure to post the notice.

Conclusion

If this proposed rule becomes final, it will likely pave the way for increased unionization.  With private sector union membership down to about 7%, the question is whether unions will seize this opportunity. 

The NLRB is accepting comments on its proposed rule until February 22, 2011.  If you have a comment, submit it promptly.   We expect a final rule will be enacted shortly thereafter.  We will keep you informed.  If it is enacted, you need to review your union-free strategy and decide if this enactment is the one that will cause your business to begin talking to your employees about the possibilities of unions in your company.  If you don’t talk to your employees, the unions will. 

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area or if you know others who would find this information useful please contact us at info@brodyandassociates.com or 203.965.0560.