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
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
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
 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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