In early 2009, Congress embarked on a massive effort to enact the Employee Free Choice Act (EFCA), legislation designed to fundamentally transform union organizing. Commonly known as the "card check" bill, EFCA's supporters in organized labor hoped its passage would facilitate union organizing by favoring majority sign-up procedures over the use of secret ballots in union elections.
Despite a strong Democratic majority and President Obama's support, EFCA supporters were unable to secure the votes necessary to get the bill approved in the Senate. EFCA was defeated by a strong lobbying campaign orchestrated by NRCA and other business groups aimed at preserving the use of secret ballot elections, which a majority of NRCA members believe are a cornerstone of democracy benefiting employers and workers.
With Republicans now in control of the House of Representatives, there is no chance Congress will approve EFCA or similar legislation. However, EFCA supporters haven't given up their objective of making union organizing easier; they now have turned to the National Labor Relations Board (NLRB) to achieve their goals through smaller regulatory initiatives.
Notice-posting rule
In late December 2010, NLRB released a Notice of Proposed Rulemaking that, if finalized, will require employers to inform employees of their rights under the National Labor Relations Act (NLRA). The proposal mandates that most employers post, physically in the workplace and electronically in certain circumstances, a notice outlining employee labor rights.
Under NLRB's proposal, employers would face new sanctions for failing to post the notice, including being charged with an unfair labor practice, having time limits for filing of other unfair labor practice charges against the employer extended and having NLRB consider the failure to post the notice as evidence of unlawful motive in other unfair labor practice cases.
NRCA opposes the proposal and filed comments outlining several concerns.
First, NRCA does not believe NLRB has the statutory authority under federal law to issue such a proposal. The NLRA gives NLRB authority to correct violations of the law but not to impose punishment for violations. If NLRB can require employers to post a notice of employee rights without clear statutory authority, there is no limit on what it can require employers to do.
Second, NRCA believes the required posting's contents are biased and incomplete. Although the notice discusses an employee's right to form, join or assist a union and engage in collective bargaining, there is no mention of the consequences of exercising these rights, such as relinquishing the right to directly deal with an employer. The notice also fails to discuss an employee's right to refuse to pay union dues or fees that are used for political purposes, and it fails to describe the right to decertify or leave a union.
If NLRB had the authority to impose such a requirement on employers, any such notice should include a full discussion of employee rights.
NRCA also is concerned the proposal's electronic notice requirements are confusing and present practical concerns for employers. For example, it is unclear exactly what type of employer communication would trigger the electronic posting requirement.
Finally, NRCA is concerned NLRB has underestimated the cost to employers of implementing the proposal. Even if the costs of posting the required notice are modest, any new government mandate must be considered in the context of the tidal wave of new federal laws and regulations being imposed on employers amid extremely difficult economic conditions.
A new precedent
Simply put, the notice-posting requirement, if adopted, would set a new precedent for what NLRB can require of employers independent of the intent of Congress. Because of this and other concerns, NRCA has urged NLRB not to move forward with the proposal.
Duane L. Musser is NRCA's vice president of government relations.
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