There is widespread belief in the business community that the National Labor Relations Board is actively promoting union organizing with its recently issued Final Rule that impacts as many as six million private employers – not only the construction industry but large and small businesses, virtually all non-agricultural industries, that need to create jobs to strengthen our economy.
First, the NLRB overruled a 2007 decision granting employees the ability to file a decertification petition for a secret-ballot election within 45 days after an employer recognizes a union as a monopoly bargaining agent.
Second, the board ruled in favor of creating a new standard for a bargaining unit, despite the fact that the current 20-year old standard has been without controversy.
On August 30, 2011, the NLRB voted to require all private sector employers, except those expressly excluded from coverage under the National Labor Relations Act, to post an 11” x 17” poster notification to its employees of their right to unionize. The sole Republican member, Brian Hayes, sharply criticized the rule as an effort to boost union membership in the face of its steady decline. He further argued that the National Labor Relations Act does not authorize the Board to require employers to bear such a notice-posting burden now, for the first time in the Board’s 76-year history.
These decisions follow other recent NLRB actions including a Final Rule forcing employers to display a poster in their workplaces containing a select list of employee rights; the NLRB’s proposal to dramatically shorten the time between a petition filing and a union certification election (from an average 47 days to 10 days); and the move to block Boeing from building a facility in a right-to-work state.
According to an August 25, 2011, NY Times article, New Rules Seen as Aid to Efforts to Unionize, “The board’s chairwoman, Wilma B. Liebman, steps down on Saturday, when her term expires. The new regulations are part of a push by the board’s 3-to-1 Democratic majority to finish cases and rules before she leaves.”
Many comments filed with the Board by private-sector employers and employer groups disputed the NLRB’s statutory authority to enact the proposed rule in the first place. Others have argued that the Board has failed to justify its actions in proposing and issuing the Final Rule when employees already have access to information of this type over the internet.
This appears to be another example of the current administration implementing anti-business policies through agency rules that it can’t get through Congress, even when both houses of Congress were Democrat controlled. But apparently the NLRB taking these over-reaching pro-union actions is not enough: organized labor is angry with the Obama Administration for not doing more to promote unionization of the American work force.
Employers and employer groups are considering legal action now that the rules have been issued. Employers should closely monitor the situation to learn whether a legal challenge has been filed that could affect whether the rule will or will not take effect on November 14, 2011, but should be prepared to comply with the new notice requirements at that time.