ESA expresses concern over NLRB 'employee rights' posters

Under a new mandate from the National Labor Relations Board that goes into effect on Nov. 14, most private sector businesses will be required to post an 11x17-inch poster in their workplaces which explains to employees their rights under the National Labor Relations Act. In addition, if 20 percent or more of a company’s employee base speaks a language other than English, the poster must also be posted in that language. Business that regularly communicates with employees through the Internet or a website must also post the notice there.

Retailers and home builders with gross annual business of less than $500,000 or that provide less than $50,000 in goods or services out of state annually are exempted.

Earlier this month, the Electronic Security Association sent out a notice to its members about the new regulations and said that it is "working with other pro-business groups to determine options for challenging the regulation." The ESA is an active member of the Coalition for a Democratic Workplace, which includes more than 80 national associations.

According to John Chwat, director of government relations for ESA, the business community feels that the posters are an attempt by the NLRB to increase unionization.

"On the face of it, it looks innocent, but if you look at the details there is an agenda here and we’re a little bit concerned," he said. "It’s just not normal text you would put on the board. It would take you 10 or 15 minutes to stand there and read it and it’s very, very involved and it’s really one-sided. It’s from the side of a union shop or union-type activities."

NLRB spokeswoman Nancy Cleeland noted, however, that the board held a 60-day comment period regarding the posters and that all the comments submitted were considered. In fact, according to Cleeland, the board did make some changes to the poster and that an employee’s right to not join or remain a member of a union is listed as one of the rights. Click here to download a PDF copy of the poster.

"The board tried to be even-handed about it," she said.

Chwat said that the NLRB may have also exceeded its authority in mandating the posters.

"We’re concerned because the NLRB needs to have Congress approve their activities like forcing six million or more small businesses around the country to post notices. Congress has to amend the National Labor Relations Act to permit the NLRB to issue these regulations and they haven’t done that," Chwat explained. "One of the main purposes behind this particular poster was that employees should be aware of their rights and for 75 years the NLRB has not required these posters and so all of sudden they’re starting to do that now."

Despite these objections, the NLRB maintains that it has the authority to issue the poster mandate under Section 6 of the National Labor Relations Act which states: "The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act."

Chwat said he expects there will be a debate in Congress over the poster mandate and that the ESA is working with the coalition to see if they get lawmakers to address the issue in a bill. Until the mandate is declared unconstitutional in court or repealed by Congress, Chwat said the ESA is urging all of its members to comply.