The National Labor Relations Board (NLRB) continued its aggressive reshaping of labor/management relations today by proposing rules that would require companies to notify workers – both through a workplace posting and by email - of their right to join a union.
The rules would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.
The Obama administration has already instituted a similar posting requirement for federal contractors. Employers may wish to review that poster to get a sense of what they may have to hang on their bulletin boards.
NLRB maintains in a fact sheet that the proposed rule is intended “to increase knowledge of the (National Labor Relations Act) among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
The new regulations come as unions frustrated by Congress’ decision not to pass labor priorities such as the Employee Free Choice Act or the Paycheck Fairness Act turn increasingly to the NLRB and other regulatory agencies to reverse what they view as a hostile atmosphere for organizing new members. Labor has suffered years of membership declines in the private sector, where just 7.2 percent of employees belong to a union.
Supporting the proposed posting rules were NLRB Chair Wilma Liebman, former counsel to the Teamsters, and recent board appointees Marc Pearce and Craig Becker, both of whom previously represented organized labor. Brian Hayes, the lone Republican who serves on the board, dissented from the proposal, arguing that the NLRB lacks the authority to impose such a requirement on employers. Hayes contends NLRB can only require such a posting after a finding of an unfair labor practice by an employer.
The new rules - coupled with the Department of Labor’s stepped-up enforcement of employer misclassification of contract, temporary and exempt workers – will unquestionably aid unions as they launch an offensive to organize workers in the private sector. AIM has become aware of two local organizing campaigns just in the past two months that bear all classic hallmarks of aggressive union tactics.
AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union.
“I see this proposed rule as no value to the company or its associates and only an opportunity for organized labor to create stress in a healthy employer/employee relationship. It could lead to an unwarranted distraction that could only negatively affect the wellbeing of the company and its associates,” said one employer who AIM asked to review the proposed rule.
The possibility of the NLRB allowing a union to represent workers without an election is based upon the Gissel Packing Company decision in which the U.S. Supreme Court approved the use of authorization cards as a measure of union sentiment for the purpose of imposing a bargaining order as remedy for an employer’s unfair labor practices. While the Court also noted that authorization cards are “admittedly inferior to the election process...,” both Liebman and Becker have stated that Giselle should be the rule, not the exception.
Separately, the law firm Littler reports in its blog that the NLRB Acting General Counsel has announced a new initiative targeting employers during union election campaigns. In a memorandum sent to regional directors and officers, Acting General Counsel Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing.
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