Required Posting of NLRA Rights

The Lentz Law Firm, LLC         
Chuck Lentz, Employment Law

UPDATE: APRIL 17, 2012
 

NLRB POSTING RULE SUSPENDED PENDING APPEALS

 On Monday, April 17th, 2012, the D.C. Circuit Court issued an injunction suspending the NLRB workplace rights posting requirement pending resolution of appeals in lawsuits challenging the rule.  The injunction followed a ruling issued Friday, April 13th by the U.S. District Court for South Carolina finding that the rule was unenforceable.  The injunction means that the posting requirement is presently suspended indefinitely.

March 5, 2012
 
RIGHTS OF NON-UNIONIZED EMPLOYEES UNDER THE NLRA
REQUIRED POSTING OF EMPLOYEE RIGHTS
GUIDANCE FOR EMPLOYERS
 
It is not surprising that one feature of the heightened polarization in public policy positions taken by the major political parties is a higher profile for "traditional" labor law matters.  One side has mounted efforts to curb or curtail labor union status, the other to promote and reinvigorate the role of collective bargaining agents.  It is also significant that this discussion is taking place at a time when many Americans are unemployed or under employed. The result is that more people are thinking and talking about labor unions than at any time in the past 40 years.  Still, there remains considerable confusion, and ignorance, about what the rights and rules regarding collective bargaining are. In a time where general awareness of workplace rights is increasing, it is prudent to review what those rights are and, more importantly, to consider the circumstances in which they may extend legal protections to employees.  
 
As a threshold matter, it is very important to remember that the federal labor laws protect certain activities, and provide certain rights, whether or not a labor union is involved and whether or not employees are members of a labor union. So, virtually all employers need to be mindful of the basic rights protected by the National Labor Relations Act (NLRA).  
 
Second, the National Labor Relations Board is requiring that, as of April 30, 2012, all covered employers post in the workplace a notice of the basic bargaining rights protected by the NLRA. The poster must go up in all covered workplaces (virtually all private employers) whether a union is representing employees or not. Business groups see this as governmental “encouragement” for employees to form unions. Pro-labor groups respond that wide-spread ignorance of the law has artificially prevented employees from taking advantage of rights and protections that have existed for decades and that the posting requirement does nothing more than set out these existing legal rights. Business groups filed an action challenging the posting requirement. The NLRB agreed to delay the deadline for posting the notice of rights to allow the court to consider the challenge. On Friday, March 2, 2012, the D.C. District Court issued its ruling denying the request that the posting requirement be set aside. As a result, and barring any further delay resulting from an appeal of the District Court’s ruling, the current April 30 deadline remains in effect.  
 
Even though the rights set out in the required posting are nothing new (most having been part of the law for more than 50 years), the fact that the vast majority of workplaces in the United States have no experience with union organizing or any unfair labor practice complaints brought through the existing NLRB system means that many employers, managers, supervisors and line employees are, generally, uninformed about the precise nature of the collective bargaining rights that exist and how those rights can be enforced. Moreover, it has probably escaped the notice of many that these rights exist even in a non-organized workplace.  
 
This article seeks to assist those looking for a very basic understanding of the rights granted by Section 7 of the NLRA and the nature of actions taken in a non-union workplace that may come under the protection of the law. In addition, the article presents basic information about the new NLRB posting requirement.  
 

Rights Extended to All Employees by the NLRA

 
Section 7 of the National Labor Relations Act (NLRA) makes a very broad statement protecting the rights of employees who pursue or promote changes in the terms and conditions of employment. Specifically, Section 7 provides that:
 
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities …  (29 U.S.C. § 157).
 
While it is clear that this language is supportive of an employee’s rights to collectively bargain through a union, and to seek to form a union for this purpose, the section is, in fact, much more broadly written than that. In addition to “labor organizations”, Section 7 recognizes the right of employees to bargain through “representatives of their own choosing” (emphasis added). Thus, the right to collectively address workplace issues is not the exclusive purview of unions or similar “labor organizations”.
 
The existence of bargaining rights independent of formal labor/management processes is even more clearly embodied in Section 7’s grant of rights to engage in “other concerted activities” for the purpose of collective bargaining “or other mutual aid or protection” (emphasis added). This language can be, and has been at times, very broadly interpreted. These are the provisions that may become more significant to employers as general awareness of these rights is raised. For employers who do not already have organized workforces and who are unfamiliar with Section 7, the question to be addressed is, “how might these rights manifest themselves in the regular course of the workday in my organization”?
 
Generally, to be a “concerted” activity, the action must be taken with or on behalf of other employees who have agreed to have their views expressed by a representative. So, if a lone employee approaches a supervisor and says that he wants a raise, there is no “concerted activity” and no protection under the NLRA. If that same employee, however, were to approach the supervisor and say that, “those of us in the quality assurance department haven’t had a raise in a while and would like to see one soon” or words to that effect, it may be that the employee is speaking on behalf of others as a representative and, thus, engaged in protected, “concerted” activity. If that employee, or any other employee in the quality assurance department were penalized or disadvantaged as a result of this request, that action would, quite likely, be a violation of Section 7 rights.
 
It is important to understand that the threshold for “concerted” activity is quite low. While it is not “concerted activity” when an employee speaks only for his or her self, it very well may be “concerted” if the employee is speaking for as few as one or two others. For instance, even if not all the employees in the quality assurance department agree with the request for a raise – or are not willing to approach management with the request – as long as there are two or more who do, and as long as the “representative” who approaches the supervisor does so on their behalf and with their approval, there is concerted activity. 
 
Note, again, that concerted activity does not require the presence of a union, a formal bargaining agent or any other process, procedure or verification of the designated “representative”. At its simplest, it is simply two or more employees joining forces to approach a supervisor or manager about some aspect of the terms and conditions of their employment. 
 
The subject matter of a concerted activity is not, obviously, limited to requests for raises or other wage issues. Any time an employee engages a supervisor in a conversation in which they propose, on behalf of themselves and others, a change in hours, assignments, discipline, safety procedures, lunch breaks, etc., the employee is likely engaging in concerted activity protected under the NLRA.
 
Finally, the scope of “concerted activity” includes the activity necessarily related to implementing the activity. That is, the actions of an employee or employees who seek to form a group consensus on a particular issue, or gather to discuss a collective position on a particular subject or in preparation for an approach to management can all be “concerted” activity in furtherance of mutual aid and protection. While these types of activities may be more readily recognized when they are conducted as part of a union organizing campaign, informal, “home-grown” meetings of employees are, even in the absence of a “union” presence or motivation, equally protected.
 
Of course, there are several key elements that are necessary to either a determination that concerted activity exists or that an employer has unlawfully interfered with or retaliated for exercise of Section 7 rights. First, for an activity to be “concerted” it must involve more than one willing participant or a showing that other employees “authorized” a representative to speak on their behalf. A lone, self-appointed representative who takes it upon himself to address a workplace issue may not be engaged in concerted activity in the final analysis. In addition, before an employer can be found to have violated Section 7, it generally must be shown that the employer was aware of the “concerted” nature of the activity. Still, any supervisor or manager approached by employees they may be tempted to characterize as “complainers”, “malcontents” or “disloyal” because the employees challenge any particular term or condition of employment, takes action to discipline, punish or discharge those employees, or their spokesperson, at considerable peril. 
 
If a violation of Section 7 is found, the typical remedy is to make that employee whole for any consequences they suffered including reinstatement with backpay. In addition, if a violation is found the employer is required to publicly post a notice acknowledging the violation and any remedies imposed. 
 

Posting of Rights Required by April 30, 2012

 

As of April 30, 2012, all employers covered by the NLRA (virtually all private sector employers with some few exceptions) must post in their workplace a notice informing employees of their rights under the NLRA. A sample posting can be found at: https://www.nlrb.gov/poster

To be sure, the required posting goes well beyond simply stating the Section 7 rights discussed above. For instance, the posting makes clear the rights of employees to “organize a union” and to talk about their issues “before or after work or during break times” or to distribute “union literature during non-work time, non-work areas, such as parking lots or break rooms”. The required poster continues, at some length, to set out what employees may do and what employers are not allowed to do. The poster also lists the activities that unions and union organizers may not do. Finally, it tells employees where they may go to make complaints and seek protection. 
 
Employers should note that in addition to the poster required to be placed in the normal spot set aside for such informational postings, if the employer disseminates procedures or policies to employees through electronic means or an internal web site, the newly required posting must be added. The NLRB also encourages employers to include at such sites a link to the NLRB site.
Historically, an employer’s failure to make the required posting has not been seen, by itself, as a violation of the NLRA.  Indeed, the NLRB has not typically conducted workplace audits to monitor required postings.  If a violation is discovered during an investigation following a complaint, an employer has, generally, simply been issued an order to comply.  This approach was incorporated by the D.C. District Court in its ruling on the challenge to the posting requirement.  Essentially, there will be no penalty per se for failing to comply with the posting requirement in the absence of other evidence of interference or retaliation with Section 7 rights.
 

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