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Contentious NLRB Posting Requirement Comes Unstuck Again

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The National Labor Relations Board had issued a rule, last fall, making it mandatory for all employers to post, at their workplaces, a new form that notified employees of their rights and privileges, under the Boards Act. It was scheduled to commence on the 14th of November 2011, but objections to it, forced a postponement to April, 30 this year.

However, it has again been blocked by a federal circuit court that granted it an emergency injunction, ruling that NLRB had the power to issue the poster obligation, but lacked the capacity to penalize employers who failed to act in accordance with the rules NLRB asked them to follow. Fresh Arguments have been scheduled for September 2012.

The contentious issue has raised a lot of questions which were quelled by Stephen P. Bond, partner at Brouse McDowell, who speaking to Smart Business said, “Contrary to what some employers might assume, this poster is required regardless of whether their own employees belong to a union.”

He said that the rule applied to all businesses that have annual gross revenues of $500,000 or more. However, other some specially defined categories could also fall under this rule he said.

The poster, foremost information is how to reach NLRB, if they have any complaints and goes on to notify employees of their Section 7 rights, “to form, join or assist a union; to negotiate with an employer through a union; to bargain collectively through representatives of employees’ choosing; to discuss wages, benefits and other terms and conditions of employment with co-workers or a union; to take action to improve working conditions; to strike and picket; and to choose not to do any of these activities, including joining and remaining a member of a unit.”

NLRB had specific instructions how and where the poster was to be posted. The location had to be prominent and at a location, where the employer posted other employer-related information and notices. Moreover, if 20 percent of the workers were non-English language speaking, a separate poster, translated in the language they were familiar with, was to be simultaneously posted, along with the English one. This was to help the migrant population who were not familiar with the language.

The rule was challenged by the employers for a variety of reasons, prime amongst them being that if they failed to comply with it, employees could file an unfair labor practice charge against them. This could result in harassment at the workplace and could end up being expensive and a sheer waste of time that could eat into work quality and production and also undermine the morale of the workforce.

Employers also felt that it was futile to put on paper laws that were already in existence and violations of which, they knew, would attract penalties. Seeing them in black and white could lead to disputes and confrontations that otherwise may not have arisen.

David Barron in the Houston office of Cozen O’Connor said that “although most of the ‘rights’ listed in the poster are well established, there are some that are controversial. For example, the poster states that it is against the law for an employer to prohibit employees from wearing union hats, buttons, t-shirts and pins in the workplace ‘except under special circumstances.’ This is a hotly contested area of the law as employers often argue that such items violate company dress codes, create safety or sanitation concerns (e.g., for food handlers), or otherwise should be limited in the workplace. The poster could encourage more conflict in this area as employees may incorrectly interpret the poster as allowing them to wear pro-union paraphernalia in the workplace without limitation.”

The poster does bring to light certain worker issues that employers were ignorant or preferred to be ignorant about. Employers have a right to talk to their employers and amongst themselves about their ‘rates of pay and work benefits,’ and an employee preventing them would be in violation of their basic rights.

NLRB Chairman Mark Gaston Pearce said “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

Contentious NLRB Posting Requirement Comes Unstuck Again by
Authored by: Harrison Barnes