Nearly two decades later, that petition is becoming reality—engendering controversy and reactions, both negative and positive. Effective November 14, the NLRB announced Thursday, employers covered by the National Labor Relations Act (NLRA) will have to post 11-by-17-inch notices that spell out employee rights to organize.
“It took a long time,” says Morris, a legal scholar and a leading expert on the NLRA. “There’s a need for this. Most employees are unaware that there is a National Labor Relations Board” that is there to support them, he adds.
Like government-mandated postings on wages, overtime, medical leave, and health and safety, the posting will be required to go up in communal areas within a workplace, advising employees that “they have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.”
The rule enters the federal register on August 30, giving employers 75 days to prepare and obtain the prescribed notices, free of charge, from the NLRB. With some exceptions, the NLRA generally has jurisdiction over private-sector businesses that produce $50,000 worth of interstate commerce. (The United States Postal Service is exempted from this particular rule; airlines and railways—both covered by the Railway Labor Act—are not subject to this rule, either.)
“The NLRA has been the only federal law governing the workplace that didn’t have a posting already,” says New York University law professor Cynthia Estlund, who testified before Congress on the issue back in February. “The rule is, I think, elementary. . . It’s a fair-minded orientation to the law.”
Many private-sector leaders have thought otherwise, claiming that the NLRB did not have the authority to make the rule, that the rule is “arbitary” and “capricious,” and that the rule is pro-union. “This is one more initiative among those we expect to be coming out over the next month that are essentially gifts to organized labor,” Randel K. Johnson, senior vice president for labor policy at the U.S. Chamber of Commerce, told The New York Times.
The National Federation of Independent Business, a small business association, issued a statement that included: “Just when we thought we had seen it all from the NLRB, it has reached a new low in its zeal to punish small-business owners,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “Not only is the Board blatantly moving beyond its legal authority by issuing this rule, it is unabashedly showing its spite for job creators by setting up a trap for millions of businesses.”
During the public comment period, the proposed rule generated 7,034 comments [PDF], the majority of which, the NLRB acknowledges, were opposed to the rule or aspects of it.
The proposal was amended to accommodate some of the opposition. For example, companies are not mandated to circulate these rights via voicemail, text message, or e-mail. However, if businesses normally circulate information to employees via an intranet or Internet site, then those companies are expected to circulate the employee rights in the same way.
The NLRB also asserted its right to make the rule in the first place, in the face of some comments—and the dissent of board member Brian Hayes—that the board was overstepping its bounds.
Attorney Stefan Marculewicz, an expert on labor standards, says that the rule “could be perceived as relatively benign,” though he does think the electronic circulation requirements are somewhat unclear.
“It might create confusion,” says Marculewicz, a partner at Littler Mendelson. “I don’t know how that’s going to play out.”
He recommends that if companies do post those notices on an intranet or Internet site, “they may want to differentiate it from company-created policies [and] make it clear to readers that it’s federally mandated.”
Failure to post the notice is considered an “unfair labor practice” under the NLRA and can be reported to the NLRB by employees. But, Marculewicz asks, “how is the NLRB going to actually prove and verify that an employer has not posted?” One possibility is that the NLRB might try to conduct more on-site visits, he says.
While the rule does not require companies to keep records of notice-posting, Marculewicz recommends that companies maintain some kind of record of when and where they posted the notice, such as taking a digital photo. If an employee were to lodge an unfair labor practice charge, such records would serve as evidence for the company.
The NLRA rules, including this new one, also apply to non-unionized workplaces. “Employees have the right to engage in concerted activity for mutual aid and protection,” says Cynthia. That includes complaining jointly, starting a petition, communicating freely, and walking off the job together, as was upheld in the1962 U.S. Supreme Court case— National Labor Relations Board v. Washington Aluminum Company.
These guaranteed rights are “not something most people are aware of, including managers,” says Estlund.