NLRB Poster Rule Down for the Count

 Employers  may have won the battle to keep American workers ignorant of rights they have held for 70 years ago under the National Labor Relations Act (NLRA).

The U.S. Court of Appeals for the Fourth Circuit in South Carolina recently ruled  the National Labor Relations Board lacks the authority to require employers to post notices either electronically or  physically “in a conspicuous place” informing workers of their rights under the NLRA.   

This holding follows an earlier ruling by the U.S. Court of Appeals for the D.C. Circuit that the poster rule violated employers free speech rights.

The NLRB contends that American workers are largely ignorant of their rights under the NLRA, adding that the poster rule is particularly important for non-union workers who lack a designated bargaining representative. The NLRA can come into play for non-union employees when, for example, an employer fires a non-union worker for discussing a safety concern or other concerns about working conditions. 

 The poster informed employees that they have a  right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions.  

 The poster rule elicited immediate opposition from a broad coalition of national  business groups after it was approved by the NLRB in  2011.

 Interestingly, 21 Republican members of the U.S. House of Representatives joined with the chamber to oppose the poster rule, including John Kline (R-Minn.), chairman of the House Committee on Education and the Workforce

 The  South Carolina appeals court ruled the NLRB is not charged with informing employees of their rights under the NLRA and “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

 Earlier, the  U.S. Court of Appeals for the D.C. Circuit  held  the notice-posting rule violated Section 8(c) of the NLRA, which prohibits the board from finding employer speech that is not coercive to be an unfair labor practice.   

In addition to Kline, the following members of the U.S. Congress House of Representatives signed on to an amicus brief opposing the NLRB  rule requiring that employers post a notice  advising workers of their rights: 

  • JOE WILSON, R-SC.;
  •  RODNEY ALEXANDER, R- LA;
  • STEVE PEARCE, R-NM;
  •  GREGG HARPER, R-MS;
  •  PHIL ROE, R-TN;
  • GLENN THOMPSON, R-PA;
  • TIM WALBERG, R-MI;
  • LOU BARLETTA, R-PA;
  •  LARRY BUCSHON, R-IN;
  • SCOTT DESJARLAIS, R-TN;
  • TREY GOWDY, R-SC;
  • JOE HECK, R-NV;
  •  BILL HUIZENGA, R-MI;
  •  MIKE KELLY, R-PA;
  • JAMES LANKFORD, R-OK;
  • ; KRISTI NOEM, R-SD;
  • ; ALAN NUNNELEE, R-Miss;
  • ; REID RIBBLE, R-WS; 
  • TODD ROKITA, R-IN;
  • and DANIEL WEBSTER, R-FL.

Business Opposes the NLRB ‘Poster Rule’

What They Don’t Want You to Know …

A melodrama is being played out in federal court about whether American workers should be informed of rights that they have possessed for 70 years under the National Labor Relations Act (NLRA).

Most workers think the NLRA pertains only to union organizing but it provides most workers the right to join together to improve their wages and working conditions with or without a union. The NLRA can come into play, for example, when an employer fires a non-union employee(s) for discussing a safety concern or other concerns about working conditions.

Employers are spending millions to prevent workers from knowing their rights!

The National Labor Relations Board (NLRB) issued a rule last summer that would have required most private sector employers to post a notice on Nov. 14, 2011 informing all workers of their rights under the NLRA.  This is called the NLRB “Poster Rule.” There was an immediate outcry from business groups, including the U.S. Chamber of Commerce, the National Association of Manufacturers and Associated Builders and Contractors (all of which filed lawsuits to block the rule).

Twice delayed, the rule was scheduled to go into effect on April 30, 2012. That’s not going to happen now because of recent federal court rulings in multiple lawsuits. Here are the legal developments:

  • The  U.S. Court of Appeals for the District of Columbia Circuit  in Washington, D.C., on April 17, 2012 issued a temporary injunction prohibiting implementation of the rule, pending appeal.
  • U.S. District Judge David Norton of South Carolina ruled on April 13, 2012 that the labor board went beyond its legal authority when issuing the rule.
  • U.S. District Judge Amy Berman Jackson of Washington, D.C., on March 2, 2012 ruled that the NLRB had the authority to adopt the poster rule, though she said the NLRB exceeded its authority with respect to certain penalty penalties for failing to comply with the rule.

The NLRB says the notice is needed because “many employees protected by the NLRA are unaware of their rights under the statute.”   Requiring employers to post the notice would, according to the NLRB, “increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.”

Most union workers are aware that the NLRA protects their right to organize but non-union workers may have no idea that the NLRA also protects them,  whether they want to join a union or not. Section 7 of the NLRA guarantees employees the right to engage in “concerted activities” not only for self-organization but also “for the purpose of . . . mutual aid or protection. . . .”

The broad protection of Section 7 applies with particular force to unorganized employees who, because they have no designated bargaining representative, must “speak for themselves as best they [can].”  NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

At this point, it is anyone’s guess whether  the NLRA posters will ever see the fluorescent light of break rooms in businesses and factories around the country.  I suggest workers print out this article or an equivalent and (anonymously) post it on their employee bulletin board.