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LABORED RELATIONS: Controversy over the NLRB’s ‘Employee Rights’ poster

Timothy Kamin

Effective Jan. 31, covered employers — which includes most private sector employers — will be required to post in their workplaces the National Labor Relations Board’s “Employee Rights” poster, and industry groups have already filed suit seeking to block this action by the NLRB.

The NLRB published a Final Rule requiring the 11-by-17-inch poster in the Federal Register in the Aug. 30 edition. The requirement is similar to other employee rights posters already mandated by statute or regulation regarding subjects such as equal employment opportunity, minimum wage, job safety and health, or family medical leave.

The rule requires that the poster be put up conspicuously where other notifications of employee rights or employment policies are posted for employees to view. The poster advises employees of some of their rights under the National Labor Relations Act, including the right to form, join or assist a labor union, to bargaining collectively through representatives, to engage in protected and concerted activities including striking and picketing in protest of employment conditions, as well as the right to refrain from engaging in such activities.

The poster also advises employees of “unfair labor practices” under the law, or actions by an employer that are in violation of the law. These include maintaining or enforcing rules that unlawfully limit the employees’ rights under the NLRA, interrogating employees regarding union support or activities, and retaliating or discriminating against employees for engaging in protected activities, among others.

The poster also advises how to contact the NLRB to report and inquire about possible violations. The poster is available for download at the NLRB’s website and hard copies can be obtained at any of the NLRB’s offices. The rule provides that the poster must be posted in its original size, format and layout, but it may be reproduced, unaltered in any way, as part of a consolidated employee rights poster that may be offered by a commercial service.

In terms of consequences for failure to post as required, there is no financial penalty as the NLRB’s enforcement powers do not include fines. However, there may be other consequences. The NLRB has indicated that it may view the failure to post as interference with employee rights resulting in an order, that it may view failure to post as evidence of unlawful intent when investigating allegations of other unfair labor practices, and that it may consider tolling the NLRA’s six-month statute of limitations with regard to other violations on the grounds that the affected employees were not made aware of their rights as required.

Prior to this new rule, employers generally were required to post notices regarding employee rights only as a remedy in cases in which the employer had been found to have violated the NLRA or had voluntarily settled allegations of such violations.

Supporters of the posting requirement, including labor unions, hail the action as properly informing and educating employees of their rights so that they may enjoy the protections as the Act originally intended. Critics argue that the rule is political payback for labor unions’ support of President Obama’s campaign, and that this rule and the NLRB’s proposed rule for “quickie elections” in place of the current process constitute an effort by the NLRB to give labor unions unfair advantages that were sought and denied in the failed effort to pass the Employee Free Choice Act legislation in recent years.

In the publishing of the Final Rule, the board acknowledged that employers maintain the right under Section 8(c) of the NLRA to express their own views regarding unionization provided that those expressions contain no coercive threats or promises of benefit. Based upon these comments, some employer organizations are advising that, if an employer feels that the poster is too one-sided or that employees may be confused that it is the employer — rather than the government — that appears to be encouraging union activity, the employer may post or communicate a statement of its own that employees have additional rights to refrain from joining or supporting a union or engaging in any concerted activities.

Employers with already unionized workforces should be careful to avoid any statements that may undermine or solicit employee opposition to an incumbent union.

The NLRB’s rule had set a Nov. 14 effective date, but on Oct. 5 the NLRB announced that it was delaying the implementation until Jan. 31. According to the NLRB’s Oct. 5 press release, the postponement is “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses,” specifically to resolve uncertainty about which businesses fall within the NLRB’s jurisdiction and to further encourage voluntary compliance.

The National Association of Manufacturers and Coalition for a Democratic Workplace have filed a lawsuit seeking to block enforcement of the rule, alleging that the rule lacks neutrality and unfairly encourages employees to exercise their right to form and join a union while downplaying the employee’s right to refrain from forming and joining a union, and that the requirement is beyond the existing power and jurisdiction of the NLRB.

Employers are advised to keep apprised of any events in the lawsuit that could potentially affect the Jan. 31 implementation and enforcement date.

Timothy C. Kamin is an attorney with Krukowski & Costello, S.C., representing management exclusively in labor and employment law matters, including unfair labor practice and representation proceedings before the National Labor Relations Board, in collective bargaining negotiations and grievance arbitration, assisting employers in responding to union organizing campaign, and employment discrimination matters.

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