March 8, 2021

N.L.R.B. Tells Companies to Ease Right to Unionize

The National Labor Relations Board issued new regulations on Thursday that require companies to put posters on their bulletin boards that inform employees about their rights to unionize under federal law.

Under the new regulations, businesses would have to display notices that explain the right to bargain collectively, to give out union literature and to work together to improve wages and conditions free of retaliation.

Noting that many workers are unaware of these rights, the board said the new regulations are aimed at making it easier for workers to exercise their rights under the National Labor Relations Act, which sets rules for unionization efforts. Agricultural, rail and airline employers would not be covered by the new rule.

Business groups were quick to criticize the new regulations, which they said were part of the board’s pro-union tilt under President Obama.

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.

“This is one more initiative among those we expect to be coming out over the next month that are essentially gifts to organized labor,” said Randel K. Johnson, senior vice president for labor policy at the United States Chamber of Commerce.

Noting that this was the first time the N.L.R.B. has required posting of such a notice since the labor relations act was passed in 1935, he questioned whether the labor board had the statutory authority to require such notices.

Business groups also expect the board to issue a decision shortly that would make it easier to unionize specific groups of nursing home workers, like certified nursing assistants.

The labor board has come under heavy attack from Republicans and the business community in recent months. In particular, the board’s acting general counsel, Lafe E. Solomon, has drawn fire for filing a case against Boeing that accuses the company of illegally retaliating against unionized workers in Washington State by deciding to build a new $750 million aircraft assembly plant in South Carolina.

Critics also oppose the board’s proposed regulations to speed up unionization elections, a move that business groups say will deny employers the ability to adequately explain to their workers the disadvantages of joining a union. Labor unions have hailed the proposal, saying it will reduce delays and interference by employers and ultimately make it easier for workers to unionize.

The board issued its regulations Thursday after receiving more than 6,500 comments from the public. The board noted that in response to those comments, it had modified its original proposal so that employers would not be required to distribute the notice via e-mail, voice mail or text messaging.

The new rule will take effect on Nov. 14, and board officials are still drafting the language for the notice to be posted. The United States Department of Labor has already begun requiring federal contractors to post similar notices about employees’ right to unionize.

Richard L. Trumka, the A.F.L.-C.I.O.’s president, applauded the new rule on posting.

“The rule is a responsible and much-needed step,” he said in a statement. “Just as employers are required to notify their employees of their rights around health and safety, wages, and discrimination on the job, this rule gives clear information to employees about their rights under this fundamental labor law so that workers are better equipped to exercise and enforce them.”  

The board said that unionized and nonunion employers would have to post the new notice because these rights apply to workers at union and nonunion workplaces and because private sector employers are subject to the labor board’s jurisdiction.

Charles B. Craver, a labor law professor at George Washington University, said the new rule would help unions “probably between a little and a modest amount.”

“Workers who are dissatisfied with things at work — and right now there are a lot of them — they may look at this notice and say, ‘Maybe we should call a union,’ ” he said. “And workers who are threatened by managers may now go to the labor board for help, where most might not know what the labor board is.”

Although critics say the Obama-era board invariably does labor’s bidding, it did issue a decision this week against labor’s wishes: it ruled that when a union finances an employee lawsuit after the union has petitioned for a unionization election, that is considered a benefit that can improperly skew the election and a new election should be held.

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