Nearly six million employers – many of which are small businesses – have been spared a mandatory posting regulation imposed by the National Labor Relations Board (NLRB), thanks to a Federal Court decision issued earlier this month. On May 7, 2013, the U.S. District Court of Appeals, for the District of Columbia Circuit, held that the NLRB could not force employers to post notices informing employees of their rights to form, join, or assist a union, and to bargain collectively. See National Ass’n of Mfrs v NLRB, ___ F3d ___; 195 LRRM (BNA) 2717 (DC Circuit 2013).
The court’s ruling vacates a rule the NLRB issued in August 2011. That rule states that all employers subject to the NLRB’s jurisdiction would be guilty of an unfair labor practice if they did not post on their properties a “Notification of Employee Rights under the National Labor Relations Act.” The rule not only required employers to post the notification in conspicuous places on their properties, but also required employers who customarily communicated with their employees electronically to additionally post the notification on their intranet or internet sites. The NLRB further required the posting to be at least 11 inches by 17 inches and in a type size and style as prescribed by the NLRB. In addition to union and collective bargaining language, the notification also informs employees of their rights to discuss wages and benefits with fellow employees, to strike and picket, and to take action to improve working conditions.
The NLRB offered three reasons for its posting rule: (1) unions only represent a small percentage of the private workforce; (2) immigrants, who are likely to be unfamiliar with workplace rights, make up an increasing proportion of the workforce; and (3) high school students entering the workforce for the first time are unfamiliar with labor laws.
Employers, on the other hand, found the notification to be one-sided in favor of union organization. Employers opposing the rule stated that the notification failed to mention at least three important, but conflicting, rights afforded each employee: (1) to decertify a union; (2) to refuse to pay union dues in a right-to-work state; and (3) to object to paying dues in excess of the amounts required for representational purposes.
In the end, the court nixed the rule because the NLRB did not have a valid means of enforcing it. This holding, however, came after the court’s discussion of an employer’s First Amendment rights. Quoting from several previous U.S. Supreme Court decisions, the court concluded that an employer’s freedom of speech encompasses both what is said and what is left unsaid. Therefore, just as an employer can deliver a noncoercive speech to employees about the disadvantages of unionization without committing an unfair labor practice, an employer can now neglect to post a notification of its employees’ rights to unionize without fear of committing an unfair labor practice.
Read the entire Federal Court of Appeals decision at the following link:
Read Michigan’s “Right to Work” legislation, which became effective March 28, 2013, at the following link:
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