Human Resources News & Insights

NLRB poster requirement upheld — with a twist

Yes, employers will be required to post that controversial NLRB poster by April 30, a judge has ruled. But there’s some good news: Failing to exhibit the poster can’t — by itself — be grounds for an unfair labor practice charge.

Yeah, it’s confusing. Here’s how it all shakes out.

The National Association of Manufacturers filed suit against the National Labor Relations Board, claiming the NLRB overstepped its legal bounds by issuing the edict that the poster must be hung in workplaces across America.

Business groups have complained that the poster is way too pro-union. Here’s how it reads, in part:

Under the (National Labor Relations Act), you have the right to:

  • • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
  • • Form, join or assist a union.
  • • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
  • • Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
  • • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
  • • Strike and picket, depending on the purpose or means of the strike or the picketing.
  • • Chose not to do any of these activities, including joining or remaining a member of a union.

So the NAM filed its lawsuit in an attempt to quash the posting requirement.

In a nutshell, the judge ruled that the NLRB didn’t exceed its authority by issuing the posting requirement — but it also ruled that the enforcement section of the rule failed “as a matter of law.”

“An employer’s mere failure to supply information” doesn’t rise to the level of a labor law violation, the judge said, adding that it’s possible, in some cases, that the failure to post the information could be a factor in determining whether a violation had occurred.

The case is National Association of Manufacturers v. National Labor Relations Board. To read the full decision, go here.

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Comments

  1. Tiffany Fisher says:

    We have a policy that discussion of wages among co-workers can be grounds for termination. Does this mean that co-workers are free to discuss their wages with each other?

  2. Yes Tiffany, it does mean that co-workers are free to discuss their wages. It also makes the policy at your company illegal because it interferes with workers’ rights under the NLRA.

  3. Jake Lootz says:

    I disagree MMAN, where are you getting that co-works are free to discuss their wages with each other? The policy is perfectly “legal”.

  4. O.K. Jake Lootz, here you go. While the NLRA does not specifically say that discussion of wages among employees is a protected right, many court decisions have in fact ruled that this is “protected concerted activity” among employees therefore making a policy illegal. Here is some information for you.

    Employees who are not represented by a union also have rights under the NLRA. Specifically, the National Labor Relations Board protects the rights of employees to engage in “concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action (Employee Rights).

    The National Labor Relations Board has held that conversations about terms and conditions of employment, specifically wages and other forms of compensation, are for the purpose of employees’ mutual aid and protection. See Wilson Trophy Co., 307 N.L.R.B. 509 (1992), enfd., 989 F.2d 1502 (8th Cir. 1993) (finding that a nonunion employee’s conversations concerning wages to be concerted activity for mutual aid and protection); Jeannette Corp., 217 N.L.R.B. 653, (1975), enfd., 532 F.2d 916 (3d Cir. 1976). Section 8(a)(1) of the NLRA prohibits employees from interfering with, restraining or coercing employees with regard to the exercise of their Section 7 rights. 29 U.S.C. § 158(a)(1) (Gray, K.G., 2011).

    Employee Rights. (n.d.) National Labor Relations Board. Retrieved from http://www.nlrb.gov/rights-we-protect/employee-rights

    Gray, K.G.(2011). Singled Out for Discipline. Human Resource Executive Online. Retrieved from http://www.hreonline.com/HRE/story.jsp?storyId=533336085

  5. MMAN is correct, it is protected, however, the addition of “during work hours” or better, “may only be discussed during non-work hours” would make Tiffany’s policy “legal” again.

    You absolutely must allow your employees to engage in “protected concerted activity,” as MMAN describes, but it should be during ‘their’ time (breaks, lunch, before & after work) not during ‘working’ hours.

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