Those Things Raised up on Your Back…Those Are Hackles

Those Things Raised up on Your Back…Those Are Hackles

by Rodney Bean

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.[1]

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.


[1]  The rule covers all employers subject to the NLRA, whether or not they are currently unionized. NLRA coverage includes retail businesses with an annual gross volume of business of $500,000 or more and nonretail businesses with annual inflows or outflows across state lines that meet or exceed $50,000.

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