Nlrb Notice: Should Employers Post Their Own Notice?

       By: William G. Trumpeter, Esq.

  Miller & Martin P

          btrumpeter@millermartin.com

The National Labor Relations Board (NLRB) has decreed by its rulemaking authority, that employers that are covered by the National Labor Relations Act (“the Act”) must post an official notice to all employees who are protected by the Act advising them of their rights under Section 7 of the Act.   Those rights are: 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 for mutual aid or protection, or to refrain from any or all of the above.

The original date for the posting was November 14, 2011, but that date has been postponed until January 31, 2012.   There are at least three lawsuits filed by employer organizations that are challenging the legality of this new rule. Those lawsuits are pending.   Employers need to think about what they will do if the rulemaking authority is upheld and a notice is required to be posted. 

Many employers object to the posting of the NLRB notice as an infringement of their right of free speech.  There is nothing in the Act itself that requires a notice be posted.  A notice has not been required since the original passage of the Wagner Act in 1935.    Section 8(c) of the Act protects the employers’ right of free speech to express their views about unions so long as the statements do not constitute threats of reprisal or force or promise of benefit.

In the comments accompanying the rule, the NLRB has made it clear that employers retain the right guaranteed by Section 8(c). Therefore, an employer, should it choose to do so, may post a notice of its own explaining its views on unionization.   The decision as to whether to post a side notice, or publish a statement about unionization of its workforce, is a call each individual employer will have to make.  

Some employers may choose to post a notice alongside the NLRB official notice explaining that the NLRB’s notice is required to be posted.   The employer’s notice could go on to lawfully state its reasons why it believes unionization would be wrong for its employees and the company.   It could lawfully emphasize that the employees also have the right to NOT engage in union activities, that they have the absolute right to refuse to sign a union authorization card or petition, and that no one has the right to illegally harass or threaten them if they refuse.  

Many employers have similar provisions in their handbooks or policy manuals.  Many feel that the best way to head off union organizing is to educate the workforce as to what it means to sign an authorization card.   Many times employees sign such cards simply because they are asked by a friend to do so or because they think the company doesn’t care.   Sometimes they are told it is just to get an election.  Frequently, as evidenced by secret ballot results, many employees simply sign to get their co-workers or union organizers to leave them alone.   If the workforce is educated, the chances that the organizing campaign will go on undetected by management will decrease dramatically.     

Other employers might choose not to post such a notice or have such a provision in their handbooks because they do not perceive a union threat or because they have public relations concerns about the effect of such an “anti-union” message.   Perhaps they have unions in other facilities and such a notice would only antagonize that union.  

The decision to post a side notice or to have a separate statement expressing one’s views about unionization is a business decision.  If you decide to develop such a message, it is always wise to have a lawyer experienced in labor law review the language to make sure it is in compliance with the very latest NLRB and court rulings.