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Much Ado About the NLRB's Requirement to Post

JURIST Guest Columnist Chris Schlag, University of Pittsburgh School of Law Class of 2014, is the president of the University of Pittsburgh School of Law's National Lawyers Guild chapter and vice president of the University of Pittsburgh School of Law's American Constitutional Society for Law and Policy. She explores the National Labor Relations Act, arguing that open communication is the foundation of a healthy and fair employment environment...

Despite over 180 federal labor laws regulating conditions of workplace activities that impact 10 million employers and 125 million workers, inadequate working conditions are not unique. Unfortunately, being paid an undocumented minimum wage, having untracked hours, working overtime without pay, not having safety training and having employers that fail to participate in workers compensation or benefits programs, are characteristics of many workers' experiences. A majority of workers have had at least one job containing these employment practice flaws, and many workers are aware that labor laws require different treatment. Workers everywhere face inadequate wages, restricted benefits, nonexistent or incomplete safety training and insufficient information on their rights as workers.

One specific right workers are frequently unaware of is their right to unionize under federal law. Under the National Labor Relations Act (NLRA), employees are guaranteed the right to unionize, which is to say create, join or participate in unions, without fear of retaliation from their employers. An employer who prevents an employee from becoming involved in union activities is considered to have committed an unfair labor practice under the NLRA, and can be held liable either through a complaint or settlement. A worker's ability to unionize is an essential labor practice, as unions are often responsible for representing workers' needs, employer compliance with applicable federal laws and protection of employee rights.

To help ensure all employees are aware of their rights under the NLRA, the National Labor Relations Board (NLRB) issued new regulations in 2011, requiring employers to post a notice of employee rights under the NLRA. The new rules, codified at 29 USC sections 151-169, require employers to post informational bulletins in easily accessible areas with sufficient information to notify employees of their rights to unionize under federal law. A failure to comply with this requirement is considered by the NLRB to be an unfair labor practice.

Since the rule's inception, business groups have criticized the regulation as being part of the Obama administration's pro-union tilt, and they have denied the validity of such regulation under the NLRA. The main argument against the rule is that it does little to provide employees with information about the disadvantages of participating in a union, such as union fees, delays in resolving workforce disputes and holding employers liable for ineffective legislation. Though criticized, the new rules have also been met with enthusiasm as some view the regulation as a necessary step to ensure all workers are sufficiently notified of their right to unionize.

The NLRB's new requirement has hit a significant snag due to two challenges filed in federal district courts. In both cases business groups challenged the NLRB's authority under the NLRA to enact the rule. In the first challenge, the US District Court for the District of Columbia upheld, in March, in National Association of Manufacturers v. National Labor Relations Board, the NLRB's requirement to post unionization information, but the court rejected that failing to post this information constituted an unfair labor practice. The second challenge came in Chamber of Commerce v. National Labor Relations Board, which was decided on April 13, 2012, in the US District Court for the District of South Carolina, which held that the NLRB was incapable of enacting the new rules entirely because the NLRA neither required nor provided for such regulation. While neither challenge resulted in invalidation of NLRB's interest in pursuing worker education of unionization rights, both federal court judgments inhibited the NLRB from fully implementing the required rule as developed. The fate of the NLRB's posting rule will remain in question until all additional challenges and appeals have been fully litigated.

In actual practice, the requirement to post informational material does not create any significant burden on employers. Most employers are already required to post information on workers' rights through other federal law requirements, such as the Occupational Safety and Health Act, and other requirements that make notifications and posters on workers compensation and federal minimum wage standards mandatory. Additional requirements may be required if employers work with toxic chemicals, biological hazards or dangerous machinery.

The conclusion that failing to post the NLRB's bulletin is an unfair labor practice is an entirely different story. Even a small perception of unfair labor practices can negatively impact the employer as a whole. An employer's compliance with posting information on workers' rights is not the same as being in active interference with those rights and should not be treated as such.

The rule requiring an informational bulletin on unionization has several important effects. First, it allows employers to view posted information as sufficient means of educating workers on unionization, thereby removing the discussion of worker rights from a more open and personal dialogue. Second, it also puts significant and important information a worker has a right to know in a form that is known to be ineffective in reaching the worker. Lastly, it holds an employer responsible for failing to communicate in this way, even if the employer is already sufficiently educating employees on available rights in another capacity. While the NLRB's rule, at the very least, places employees on notice of their rights under the NLRA, the resulting effect is not just notice. It punishes employers for failing to communicate in what is known to be in ineffective way and inhibits employers from taking more proactive steps. The NLRB's posting rule, while possibly a step in the right direction, is insufficient and likely ineffective.

The right to unionize, and all it entails, is often not clearly known to workers. Too often workers are not provided with the opportunity to learn of their rights. An open and two-way discussion on federal labor laws would greatly benefit workers and has the potential to promote their understanding of their rights. This open dialogue is essential to workers being able to understand their rights and responsibilities, and has the potential to make workers feel appreciated, secure and respected in their work environment. If employers engage in this dialogue on workers rights, then workers will know that their employers are taking steps to ensure their fair treatment and safety. A simple posting of an informational bulletin on unionization does not have the ability to fulfill this task.

Something more than a required posting and harsh implication of unfair labor practices is needed to ensure effective communication of worker rights. Employers should be actively involved in educating employers on their rights through an open dialogue of the pros and cons of unionization. A rule which minimizes the dialogue and punishes more involvement is, therefore, unlikely to be effective. While NLRB is working towards the right goal, there needs to be more active facilitation in employer and employee conversations and less focus on punishing the forum for discussion.

Chris Schlag holds a B.S. degree in Environmental Health from Colorado State University and an M.S. degree in Occupational Health and Safety with Environmental Management from Columbia Southern University. Focusing on worker rights in environmental health and safety, Schlag worked as an environmental health and safety consultant for Colorado's Workers Compensation fund, Pinnacol Assurance, for four years while also participating as an active board member for the Northern Colorado Section of the American Society of Safety Engineers.

Suggested citation: Chris Schlag, Much Ado about the NLRB's Requirement to Post, JURIST - Dateline, Apr. 20, 2012, http://jurist.org/dateline/2012/04/chris-schlag-nlra.php.

This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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