[This posting has been updated here]

On Notice

On November 14, the National Labor Relations Board will start requiring private sector employers to post notices intended to educate employees about their rights under the National Labor Relations Act.  With this new regulation, the Board has taken a step forward in addressing the fact that most American workers are not aware of their rights to, for example, form a union without reprisal, talk about unions at work and engage in other collective actions to improve their working conditions. As the Board stated in the Final Rule:

The Board believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.  A beneficial side effect may well be the promotion of statutory compliance by employers and unions.

In the Final Rule, the Board also recognized that, until now, it was the only government agency or department responsible for enforcing labor and employment laws that did not have some sort of “notice” requirement.

Although there are some exemptions, most unionized and non-unionized employers in the private sector will be required to comply with the new regulation.

A Thorn Thumbtack in Their Side

Despite the fact that the NLRB will provide the notices to employers free of charge, employer associations and anti-union groups opposed this regulation with fervor. The Board noted that over 7,000 comments were submitted after it proposed the rule – most of them advocating against it.  The  employers did not dwell upon the added expense of extra thumbtacks, but many of their complaints appeared to fit into one of three general categories:

  1. Employees already know their rights under the NLRA;
  2. If employees learn about their rights, they will form more unions and file more unfair labor practice charges; and
  3. If employees want to form a union, they should work somewhere else.

As for #1, in the introduction to the Rule, the NLRB cites several studies that establish that most workers do not know their rights.  Additionally, many employees, union organizers and others submitted comments with specific and personal examples of employees who did not know that they could organize unions, collectively address concerns about the terms and conditions of their employment, refuse to work in unsafe conditions, or seek the government’s help in addressing workplace issues.

As for #2, the NLRB’s response says it all: “fear that employees may exercise their statutory rights is not a valid reason for not informing them of their rights.”

As for #3, some of the comments quoted by the NLRB in its introduction to the rule would be laughable if it were not for the fact that many people believe them. Here’s one of my favorites: “If a person so desires to be employed by a union company, they should take their ass to a union company and apply for a union job.” Check out pages 50-51 of the rule’s supplementary materials for more good reading.

Remedy Irony

So, what if an employer fails to post the notice? The NLRB will only enforce the rule if an employee, union or other affected individual or entity files an unfair labor practice charge. Here’s the irony: given the Board’s rather weak remedial powers, the likely outcome is this: require the employer to post a notice stating that it has violated the law and promises not to do it again.

To be fair, the Board may also waive the 6-month (Section 10(b)) statute of limitations for filing an unfair labor practice charge. The Board would only give a charging party more time to file a charge when the employer fails to post the notice and the employee is unaware that the conduct involved is an unfair labor practice. Nonetheless, this could be an important protection for those workers who  file legitimate charges that the Board might otherwise dismiss solely because the individual filed too late.

More Reading