The National Labor Relations Board (NLRB) decided not to fight the U.S. Court of Appeals unfavorable ruling over its 2011 workplace poster requirement. In 2011, the NLRB began requiring private employers to post an 11×17 poster that explained the basics of employees’ rights under the National Labor Relations Act (NLRA). The NLRA provides employees the right to join or not join a union and prohibits employers from interfering with these rights. It also protects employees who are not part of a union, but are taking part in a “concerted activity.” According to the NLRB, this poster was just like any other mandatory employment law poster. Employers and the Court thought differently.
The Battle
Employers were strongly opposed to the NLRB’s poster rule because they claimed it infringed on their freedom of speech rights. The NLRB is an independent government agency, which means that the First Amendment does apply to their actions. Employers claimed that the posters required them to advocate for unions and/or unionization of its employees. The NLRB argued that it was one of only a few employment agencies that did not have a mandatory poster, and that the poster was a statement of employee rights, not a promotion for or against unions. The Court of Appeals agreed with employers, and struck down the rule. Now, employers are no longer required to hang the posters, but the posters are still available online.
Additionally, Komonews.com reported mid-December of a second lawsuit against the United States’ Department of Labor for its regulations that require businesses with federal contracts to post a
similar poster detailing employee rights to join unions and take part in “concerted activity.” The Labor Department’s rule has been in place since 2010. Interestingly, the 2010 rule replaced an earlier rule requiring posters informing employees that they had the right to not join a union, and that they did not have to pay union fees for non-representation matters. Both posters are arguably factually correct, but both clearly have different messages. Employers with federal contract will have to wait to see if the court views the Labor Department’s requirement in the same light as the NLRB’s.
Concerted Activity
Concerted activities are actions employee Concerted activities are actions employees take, either collectively or as an individual with the backing of other employees, to improve working situations. For instance, the fast food strikes were a concerted activity because those striking were seeking to improve the minimum wage for all fast food workers. Additionally, the NLRB recently addressed a “concerted activity” in Rain City, Washington, where three construction workers took to YouTube to complain about hazardous work conditions. The three workers and two workers close to them were fired within days of the YouTube posting. The NLRB investigated the firings, even though the workers were not union members, and the workers received back pay and had the option of being reinstated in an agreed upon settlement.
If you believe you have suffered from retaliation or had your employment rights violated in your employment, contacting an experienced employment law attorney in Washington can help.
