New Rule: Bosses Must Inform Workers of Right to Organize

Kari Lydersen

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Predictably, employers see NLRB action as gift to organized labor’

Tomorrow, August 30, a rule will be published in the federal register that mandates that almost all private employers must post a notice informing employees of their rights to organize under the National Labor Relations Act.

The decision, announced last week by the National Labor Relations Board (NLRB), applies to companies whether or not they have federal contracts. Currently, under an executive order signed by President Obama in January 2009, federal contractors are required to post an 11×17 inch notice outlining workers’ rights to:

Self-organization, to form, join, or assist labor organizations; to bargain collectively; to engage in other concerted activities; and to refrain from such activities.

Business groups stridently objected to the rule, which was originally proposed in December 2010 and received about 7,000 comments during a public comment period. Many business interests argued the NLRB doesn’t have the statutory authority to make such a rule. In text of the rule including background and supplementary material, the NLRB cites case law showing it does have the needed authority.

The Huffington Post reported:

Business groups and their allies are furious. They say that the rule is too onerous, and that it benefits labor unions. The National Federation of Independent Business (NFIB), a powerful small-business trade group known to support Republicans, quickly pounced on the punitive new rule” as another assault by the National Labor Relations Board on independent employers.

A statement from the NFIB said:

The same week the Obama Administration announced it was making an effort to scale back burdensome rules on small businesses, the NLRB … demonstrated an unprecedented overreach of its authority today by issuing a punitive new rule…

The NFIB statement includes a quote from its staffer Karen Harned:

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. 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.

The statement also says the rule sets up a gotcha’ situation for millions of businesses which are unaware of the new rule or unable to immediately comply.”

However, the rule explicitly says that sanctions will not be likely if an employer is unaware of the rule and upon being made aware, is willing to comply. It is hard to realistically imagine why the simple posting of the rule could be so burdensome. The Huffington Post quotes NLRB staffer Nancy Cleeland:

Companies will be able to download the poster off the web or stop into any NLRB regional office to pick up free copies. Cleeland said the board tried to be as accommodating as possible, tweaking the rules after a public-comment period so that employers could use black-and-white posters if they don’t have color printers.

And if the companies don’t carry 11 by 17 inch paper, the board carved out a solution. They can take two different 8‑by-11 pieces of paper and tape them together,” Cleeland said.

If, in the eyes of the NFIB, it is the idea of workers unionizing that stands to destroy small businesses, that’s a whole other can of worms and perhaps an affirmation of the very need for the rule. If the small businesses that are supposedly the lifeblood of the U.S. economy are so intent on workers not understanding their collective bargaining rights, one has to wonder what practices would be so threatened by workers unionizing.

In a summary of the public comments, the NLRB addresses this issue:

Specifically, they [critics] predict that the rule will lead to increased unionization and create alleged adverse effects on employers and the economy generally. For example, Baker and Daniels LLP comments that as more employees become aware of their NLRA rights, they will file more unfair labor practice charges and elect unions to serve as their collective-bargaining representatives. But fear that employees may exercise their statutory rights is not a valid reason for not informing them of their rights.

The U.S. Chamber of Commerce also staunchly opposed the rule, with senior vice president for labor policy Randel K. Johnson telling The New York Times, ““This is one more initiative among those we expect to be coming out over the next month that are essentially gifts to organized labor.”

Taken as a group, employers’ arguments came off as contradictory, since the argument that posting notices would lead to more unionizing efforts was undercut by various employers’ comments that workers already know about unions.

The company Malt-O-Meal commented that:

The fact of the matter is that if a group of employees are upset enough with their current management that they feel they need union representation, they already know what they need to do as a recourse. And if they do not immediately know how to respond, there are plenty of resources for them.

Another employer commented:

If they don’t like the way I treat them, then go get another job. That is what capitalism is about.

In response to the public comments, the NLRB made some revisions including adding emphasis on the right not to join a union and the prohibition on abuses by unions, and removing the requirement that the notice be in color. Commenters apparently both supporting and opposing the general idea of promoting knowledge of organizing rights described paper notices as archaic in the Internet age. But the NLRB said the agency still sees this as the most direct route to reaching employees at work.

Agricultural operations and railroads are exempt from the rule, since they are exempt from the NLRA. The U.S. Post Office is also temporarily exempt. The rule will take effect on November 14, 75 days after being published in the federal register. Failure to comply with posting the notice is a potential NLRA violation, and as with other violations the NLRB won’t investigate unless a complaint is filed.

The NLRB says many Americans don’t understand their labor rights today, and offers telling explanations:

The board suggested a number of reasons why such a knowledge gap could exist – the low percentage of employees who are represented by unions, and thus lack an important source of information about NLRA rights; the increasing proportion of immigrants in the work force, who are unlikely to be familiar with their workplace rights; and lack of information about labor law and labor relations on the part of high school students who are about to enter the labor force.

For example, one worker commented:

I had no idea that I had the right to join a union, and was often told by my employer that I could not do so… . I think employers should be required to post notices so that all employees may make an informed decision about their rights to join a union.

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Kari Lydersen is a Chicago-based reporter, author and journalism instructor, leading the Social Justice & Investigative specialization in the graduate program at Northwestern University. She is the author of Mayor 1%: Rahm Emanuel and the Rise of Chicago’s 99%.
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