NLRB Pushes to Require Employers to Notify Workers of Union Rights

As the number of private sector union members continues to fall (currently at just 7.2 percent of the private workforce), the National Labor Relations Board (NLRB) -- an independent organization established by Congress to mediate labor disputes -- is now urging the federal government to enact regulations that would require employers to notify workers of their right to unionize:

The National Labor Relations Board has submitted to the Federal Register a Notice of Proposed Rulemaking, which provides for a 60-day comment period. The rule would require employers to notify employees of their rights under the National Labor Relations Act.

As the Notice states, the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The Associated Press notes that the move will likely please union leaders who have been pushing the Obama administration for more pro-union policies, including the so-called Employee Free Choice Act, which has failed to garner support in Congress:

The planned rule, announced Tuesday by the National Labor Relations Board, would require businesses to post notices in employee break rooms or other prominent locations to explain a worker's rights to bargain collectively, distribute union literature or engage in other union activities without reprisal.

The move to issue a broad rule signals a more aggressive posture by the labor board, which usually makes policy on a case-by-case basis in individual labor-management disputes.

It comes less than a year after President Barack Obama made several recess appointments to give the board its first Democratic majority in a decade. Obama's appointments to the board were held up for months over GOP concerns that one nominee — former AFL-CIO counsel Craig Becker — would be too sympathetic to unions.

As unions struggle to pass pro-labor legislation in Congress, leaders are increasingly looking to the labor board and other federal agencies to help reverse what they view as an increasingly hostile atmosphere for organizing new members.

Keith Smith, director of labor policy for the National Association of Manufacturers (NAM), noted Monday that with another year of the Obama administration coming to an end, a look back at its labor agenda so far reveal an avoidance of legislative action and favor bureaucratic regulation:

Specifically the agenda includes:

• A new regulatory proposal that would require companies to disclose to both independent contractors and employees alike a description of their status as either an employee or independent contractor. While few details are offered on this expected regulatory endeavor it appears to place new requirements on employers to disseminate information to employees. This regulation appears to be very similar to legislation, the Employee Misclassification Prevention Act, offered by Sen. Sherrod Brown (D-OH) and Rep. Lynn Woolsey (D-CA).
• Information on proposals expected from the Office of Labor Management Standards that would require employers to disclose the details of when they engage in “persuader activities” and plans to “reconsider” (i.e. limit) the types of efforts engaged by employers to comply with labor laws that are not currently required to be disclosed. Note: the administration previously removed a set of disclosure requirements for union organizations citing the burden they posed for labor leaders to comply.
• An update on OSHA’s efforts to mandate an expansive safety and health program standard through what has been called the “Injury and Illness Prevention Program”
• An indication that OSHA intends to finalizing their proposed rulemaking to allow citations to be issued for certain small businesses that wish to work proactively with the agency to ensure that they are compliant with existing OSHA standards and regulations – a move that would deter participation in a very effective program.

As we’ve stated... more regulations from the Executive Branch produce a lot of uncertainty for employers, to whom unnecessary costs represent an obstacle to economic growth.