Busi­ness groups stri­dent­ly object­ed to the rule, which was orig­i­nal­ly pro­posed in Decem­ber 2010 and received about 7,000 com­ments dur­ing a pub­lic com­ment peri­od. Many busi­ness inter­ests argued the NLRB doesn’t have the statu­to­ry author­i­ty to make such a rule. In text of the rule includ­ing back­ground and sup­ple­men­tary mate­r­i­al, the NLRB cites case law show­ing it does have the need­ed authority.

Self-orga­ni­za­tion, to form, join, or assist labor orga­ni­za­tions; to bar­gain col­lec­tive­ly; to engage in oth­er con­cert­ed activ­i­ties; and to refrain from such activities.

The deci­sion, announced last week by the Nation­al Labor Rela­tions Board (NLRB), applies to com­pa­nies whether or not they have fed­er­al con­tracts. Cur­rent­ly, under an exec­u­tive order signed by Pres­i­dent Oba­ma in Jan­u­ary 2009, fed­er­al con­trac­tors are required to post an 11×17 inch notice out­lin­ing work­ers’ rights to:

Tomor­row, August 30, a rule will be pub­lished in the fed­er­al reg­is­ter that man­dates that almost all pri­vate employ­ers must post a notice inform­ing employ­ees of their rights to orga­nize under the Nation­al Labor Rela­tions Act.

The Huff­in­g­ton Post report­ed:

Busi­ness groups and their allies are furi­ous. They say that the rule is too oner­ous, and that it ben­e­fits labor unions. The Nation­al Fed­er­a­tion of Inde­pen­dent Busi­ness (NFIB), a pow­er­ful small-busi­ness trade group known to sup­port Repub­li­cans, quick­ly pounced on the ​“puni­tive new rule” as anoth­er assault by the Nation­al Labor Rela­tions Board on inde­pen­dent employers.

A state­ment from the NFIB said:

The same week the Oba­ma Admin­is­tra­tion announced it was mak­ing an effort to scale back bur­den­some rules on small busi­ness­es, the NLRB … demon­strat­ed an unprece­dent­ed over­reach of its author­i­ty today by issu­ing a puni­tive new rule…

The NFIB state­ment includes a quote from its staffer Karen Harned:

Just when we thought we had seen it all from the NLRB, it has reached a new low in its zeal to pun­ish small-busi­ness own­ers. Not only is the Board bla­tant­ly mov­ing beyond its legal author­i­ty by issu­ing this rule, it is unabashed­ly show­ing its spite for job cre­ators by set­ting up a trap for mil­lions of businesses.

The state­ment also says the rule ​“sets up a ​‘gotcha’ sit­u­a­tion for mil­lions of busi­ness­es which are unaware of the new rule or unable to imme­di­ate­ly comply.”

How­ev­er, the rule explic­it­ly says that sanc­tions will not be like­ly if an employ­er is unaware of the rule and upon being made aware, is will­ing to com­ply. It is hard to real­is­ti­cal­ly imag­ine why the sim­ple post­ing of the rule could be so bur­den­some. The Huff­in­g­ton Post quotes NLRB staffer Nan­cy Cleeland:

Com­pa­nies will be able to down­load the poster off the web or stop into any NLRB region­al office to pick up free copies. Clee­land said the board tried to be as accom­mo­dat­ing as pos­si­ble, tweak­ing the rules after a pub­lic-com­ment peri­od so that employ­ers could use black-and-white posters if they don’t have col­or printers. And if the com­pa­nies don’t car­ry 11 by 17 inch paper, the board carved out a solu­tion. ​“They can take two dif­fer­ent 8‑by-11 pieces of paper and tape them togeth­er,” Clee­land said.

If, in the eyes of the NFIB, it is the idea of work­ers union­iz­ing that stands to destroy small busi­ness­es, that’s a whole oth­er can of worms and per­haps an affir­ma­tion of the very need for the rule. If the small busi­ness­es that are sup­pos­ed­ly the lifeblood of the U.S. econ­o­my are so intent on work­ers not under­stand­ing their col­lec­tive bar­gain­ing rights, one has to won­der what prac­tices would be so threat­ened by work­ers unionizing.

In a sum­ma­ry of the pub­lic com­ments, the NLRB address­es this issue:

Specif­i­cal­ly, they [crit­ics] pre­dict that the rule will lead to increased union­iza­tion and cre­ate alleged adverse effects on employ­ers and the econ­o­my gen­er­al­ly. For exam­ple, Bak­er and Daniels LLP com­ments that as more employ­ees become aware of their NLRA rights, they will file more unfair labor prac­tice charges and elect unions to serve as their col­lec­tive-bar­gain­ing rep­re­sen­ta­tives. But fear that employ­ees may exer­cise their statu­to­ry rights is not a valid rea­son for not inform­ing them of their rights.

The U.S. Cham­ber of Com­merce also staunch­ly opposed the rule, with senior vice pres­i­dent for labor pol­i­cy Ran­del K. John­son telling The New York Times, ““This is one more ini­tia­tive among those we expect to be com­ing out over the next month that are essen­tial­ly gifts to orga­nized labor.”

Tak­en as a group, employ­ers’ argu­ments came off as con­tra­dic­to­ry, since the argu­ment that post­ing notices would lead to more union­iz­ing efforts was under­cut by var­i­ous employ­ers’ com­ments that work­ers already know about unions.

The com­pa­ny Malt-O-Meal com­ment­ed that:

The fact of the mat­ter is that if a group of employ­ees are upset enough with their cur­rent man­age­ment that they feel they need union rep­re­sen­ta­tion, they already know what they need to do as a recourse. And if they do not imme­di­ate­ly know how to respond, there are plen­ty of resources for them.

Anoth­er employ­er commented:

If they don’t like the way I treat them, then go get anoth­er job. That is what cap­i­tal­ism is about.

In response to the pub­lic com­ments, the NLRB made some revi­sions includ­ing adding empha­sis on the right not to join a union and the pro­hi­bi­tion on abus­es by unions, and remov­ing the require­ment that the notice be in col­or. Com­menters appar­ent­ly both sup­port­ing and oppos­ing the gen­er­al idea of pro­mot­ing knowl­edge of orga­niz­ing rights described paper notices as archa­ic in the Inter­net age. But the NLRB said the agency still sees this as the most direct route to reach­ing employ­ees at work.

Agri­cul­tur­al oper­a­tions and rail­roads are exempt from the rule, since they are exempt from the NLRA. The U.S. Post Office is also tem­porar­i­ly exempt. The rule will take effect on Novem­ber 14, 75 days after being pub­lished in the fed­er­al reg­is­ter. Fail­ure to com­ply with post­ing the notice is a poten­tial NLRA vio­la­tion, and as with oth­er vio­la­tions the NLRB won’t inves­ti­gate unless a com­plaint is filed.



The NLRB says many Amer­i­cans don’t under­stand their labor rights today, and offers telling explanations:

The board sug­gest­ed a num­ber of rea­sons why such a knowl­edge gap could exist – the low per­cent­age of employ­ees who are rep­re­sent­ed by unions, and thus lack an impor­tant source of infor­ma­tion about NLRA rights; the increas­ing pro­por­tion of immi­grants in the work force, who are unlike­ly to be famil­iar with their work­place rights; and lack of infor­ma­tion about labor law and labor rela­tions on the part of high school stu­dents who are about to enter the labor force.

For exam­ple, one work­er commented: