Jottings By An Employer's Lawyer

Tuesday, September 13, 2011

Coming to a Bulletin Board Near You on November 14th, Or Maybe Not ...

On planning committees for seminars, one topic that inevitably gets discussed is that we need to cover some traditional labor law. Almost inevitably someone will point out that in Texas, very few employers have unions and so any discussion of the NLRA or the actions of the NLRB will no doubt turn off a large part off the audience. And that of course, always gets the suggestion -- let's emphasize that the NLRA covers "concerted activity" not just union activity.

All true, true, and true. In fact my very first 5th Circuit argument was just such a case, NLRB v. Datapoint (5th Cir. 1981).

But unless a suit filed by the NAM, or some other similar action is successful, this November 4th, this poster, in its final formatted version that was published by the NLRB today will grace the bulletin board of every employer covered by the NLRA regardless of whether or not they currently have a union, as of November 14th.

This was the result of rule making on the part of the Board, a technique rarely used in the past.

In addition to a list of things that are illegal for either an employer or a union to do, the poster provides the following information:
Under the NLRA, 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.

• Choose not to do any of these activities, including joining or remaining a member of a union. 
One view of postings is that they are much like the warning on the side of a lawnmower that you should not stick your hands into the blades, they are so ubiquitous that no one pays any attention.

But one never knows, although it may well be that we will soon find out.

A hat tip to Jeffrey Hirsch at Workplace Prof Blog, who was the first to call to my attention that the final version, in his words, "suitable for framing" was now released, although he gives his own hat tip and cautionary warning.

Update: Thanks to Russell Samson at the Dickinson Law Firm in Des Moines for catching that I was trying to force posting 10 days earlier than required. The effective date of the new rules which require the posting is 75 days after they were released or November 14, 2011.  The Board's equivalent of an FAQ on the new posting requirement (which confirms the correct date) is here.


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