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Those Things Raised Up on Your Back: Those Are Hackles (NLRB Issues Final Regulations)

by Submitted Posting on September 24, 2011

by Rodney L. Bean, Steptoe & Johnson PLLC, Guest Contributor

We all have known for years that the leadership of federal and state agencies are packed with appointees from the political party in power. But never have those agencies seemed so philosophically bent or brazen as they do now. We have all read about or experienced first-hand the ramped up regulatory agenda and enforcement of the current EPA, OSHA, and DOL.

Now, in an unprecedented move, the National Labor Relations Board issued final regulations on August 30 requiring most private employers in the United States to post a notice in their workplaces informing workers in detail about their right to join a union, strike and picket, and discuss wages, benefits, and other terms of employment with co-workers.

The required notice contains detailed information about employee rights to organize and join a union and prohibited employer activities, such as forbidding workers from discussing or soliciting for unions and distributing union literature, questioning employees about union support, spying on or videotaping peaceful union activities, and making threats or promises connected to union support.

Employers must post the required notices in “conspicuous places where they are readily seen by employees” by November 14. The content, size, and form of the required posting are prescribed by the regulations and employers cannot alter its language or even the size or style of its typeface. Employers who publish workplace policies electronically must also post the new notice in the same manner. Employers “must take reasonable steps to ensure that the notice is not altered, defaced, covered by any other material, or otherwise rendered unreadable.”

The posting requirement is controversial. Although the NLRB has rulemaking power, it lacks specific statutory authority to require employers to post information. Late last week, the National Association of Manufacturers (“NAM”) filed a lawsuit seeking to bar the posting rule for that reason. In a press release, NAM President and CEO Jay Timmons called the posting requirement “just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have.”

In comments to the NLRB, employers contended that the posting requirement violates employers’ First Amendment rights by forcing them to communicate to employees about the right to unionize without expressing contrary viewpoints. Employers also criticized the content of the required posting as unfairly pro-union, arguing that the notice promotes unionization instead of employee freedom of association. Although federal labor law protects employees’ right to refrain from union activity, that right is given scant attention in comparison to other rights in the proposed notice.

The notice never mentions employees’ rights to seek decertification of a union, to abstain from union membership in right-to-work states, and to refuse to pay the portion of union dues used for activities other than those related to collective bargaining. Also unmentioned are employers’ rights to distribute union-free literature and discuss their opinions about unions.

The NLRB rejected these criticisms, finding that they were outweighed by the need to educate workers about their rights under federal labor law. The NLRB attributed workers’ alleged ignorance of their rights to, among other things, “the low percentage of employees who are represented by unions, and thus lack an important source of information about” federal labor rights.

The sole Republican member of the NLRB, Brian Hayes, wrote a strong dissent to the new regulations, labeling them “arbitrary and capricious, and therefore invalid,” “not based on substantial evidence,” and lacking “a reasoned analysis.” He wrote that the real reason for the new regulations is “to reverse the steady downward trend in union density among private sector employees.” Hayes predicted “a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.”

Coupled with the NLRB’s recent complaint against the Boeing Company, its decision in the Specialty Healthcare case that overturned 20 years of precedent and allowed unions to organize a minority share of an employer’s workforce, and the recently proposed rules by the NLRB designed to speed up the union campaign and election process and discourage the use of consultants or other professionals to aid employers in the thicket of esoteric labor law rules that are prevalent in union campaigns, the NLRB’s recent actions look more like a payback to organized labor than a reasoned approach to labor law.

As labor lawyers who work with unionized employers as well as non-union employers who would prefer to stay that way, we know all too well the strength of emotion this issue will spark in the employer community. We’re reminded of Peter Finch’s famous line from the movie “Network”: “I’m mad as hell and I’m not going to take this anymore.” We share those emotions and worry about the practical effect of the NLRB’s new course on the employer community.

But like it or not, absent a court order to the contrary, the NLRB’s posting requirement will become the law of the land on November 14. Compliant notices will be available for download from the NLRB’s website by November 1. If something changes before then, we will let you know. Watch these updates and our Labor and Employment Blog “Employment Essentials” for the latest news on this and other topics of interest to employers.

This letter is for informational purposes only, is not intended as legal advice and is not a substitute for independent legal analysis and advice on a particular issue. Please contact an attorney in Steptoe & Johnson’s Labor Department if you would like further information on these matters.

About the Guest Author: Rodney L. Bean is a Member of Steptoe & Johnson PLLC and maintains a broad employment litigation and counseling practice. He has represented clients in various state and federal trial courts and the United States Courts of Appeals for the Third and Fourth Circuits. Mr. Bean is leader of the firm’s Labor & Employment Practice Group.

{ 2 comments… read them below or add one }

Anonym September 25, 2011 at 3:48 am

I find it confusing that Mr. Bean considers this requirement “unprecedented” since last I checked, the NLRB also requires posting of minimum wage laws, workers compensation rights, and various other legal standards that employers must maintain. Adding another must-post requirement to the list of already required items doesn’t seem to be a huge change to me. Maybe Mr. Bean can inform us why this law is so onerous and unprecedented.

Rodney L. Bean September 27, 2011 at 7:56 am

The NLRB actually does not require posting of minimum wage laws, workers’ compensation rights, or anything else. Those postings are required by the agencies that administer those individual laws (i.e., the DOL requires the posting of minimum wage standards, state workers’ compensation commissions require postings related to workers’ compensation, etc.) The difference is that, while those agencies have the legal authority to require those postings, the NLRB has no such authority. The NLRB has never attempted to impose any such requirement in its long history. That is why I called the new requirement “unprecedented” in the article.

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