(February 14, 2011) A federal agency is exceeding its authority under the law in proposing that private sector employers notify employees of their right to unionize,according to the California Chamber of Commerce and a coalition of employers.

In a February 9 letter to the National Labor Relations Board (NLRB), the CalChamber and coalition pointed out that numerous components of the proposal exceed the NLRB’s authority.

Proposal

The proposed notice requirement covers all employers subject to the National Labor Relations Act (NLRA) and would be mandatory in almost all workplaces, regardless of whether union employees are present.

The notice is to be placed where other notices typically are posted. If an employer customarily communicates with employees electronically, the notice would need to be posted electronically.

Failure to post the notice would be treated as an unfair labor practice under the NLRA and as evidence of an employer’s unlawful motives in cases involving such allegations.

Furthermore, the NLRB will allow an employee to delay the six-month statute of limitations to report a complaint under the NLRA until the employer posts the notice.

Coalition Letter

In the letter, the CalChamber and coalition said that in its proposed mandate, the NLRB is overstepping its authority by:

• Imposing a posting requirement on employers.
  The NLRA does not provide the NLRB with the authority to require employers to post a notice in the workplace regarding workers’ rights. “The NLRB is only charged with preventing, investigating, and remedying unfair labor practices, as defined in the NLRA,” the letter states. “However...the Proposed Rule seeks to impose an affirmative obligation onto employers before the NLRB’s jurisdiction is even invoked with regard to an unfair labor practice.”
  
  Furthermore, while a similar posting notice is required for federal contractors by the U.S. Department of Labor, that requirement was enacted in accordance with the President’s Executive Order. No such authority exists for the NLRB to impose a similar obligation on private employers.
  
  
• Construing failure to post the notice as an “unfair labor practice.” Section 8(a)(1) of the NLRA states that it “shall be an unfair labor practice for an employer ‘to interfere with, restrain, or coerce employees in the exercise of the rights’” under the NLRA.
  
  Under the NLRB proposal, an employer’s failure to post the notice would be deemed as an “unfair labor practice,” violating 8(a)(1). A failure to post, however, does not restrict an employee from exercising his/her rights, nor does it pressure an employee to act a certain way, the coalition argues.
  
  “As Congress intended and the Courts have confirmed, there must be evidence that [failing to post the notice] had a reasonable tendency to, or actually interfered with, coerced, or restrained the employees’ rights under the NLRA,” the letter points out. “Therefore, the NLRB’s proposed interpretation of an employer’s failure to post the notice as an automatic violation of section 8(a)(1) is unlawful.”
  
  
• Creating an exception to the sixmonth statute of limitations for an employer’s failure to post. The NLRB has proposed giving employees an openended time frame in which to file unfair labor practice charges.
  This exception sharply undermines the strict six-month time frame during which an employee can file a claim under the NLRA. The only exception to this six-month period is made for employees in the military in Section 10(b) of the NLRA.
  
  The NLRB’s authority is limited by Congress to create regulations in adherence to the NLRA’s provisions, which includes the six-month statute of limitations, according to the letter. Therefore, the NLRB is overstepping its authority by adopting an open-ended time frame, instead of adhering to the time limits set by the NLRA.

Coalition Suggestions

If the NLRB decides to establish the notice requirement, despite objections, the coalition suggested changes to the proposal:

• Amend broad language. The coalition isolated several sections in the proposed mandate that were overly broad or vague to ensure that employers had a clear understanding of what was required, and to avoid loopholes through which employees could sue otherwise compliant employers.
  
  For example, Section 102.202(f) of the NLRB proposal requires employers to distribute the notice electronically “if the employer customarily communicates with employees by such means.” The coalition suggested that “customarily communicates” is an overly broad phrase that fails to provide clear guidance.
  
  After all, some employers communicate via e-mail with employees regarding personnel issues, but only communicate with employees regarding statutory notices via physical posters.
  
  The coalition urged the NLRB to amend the language of the section to require employers distribute the proposed notice electronically only if the employer also has distributed other notices required by law to employees electronically.
  
  
• Statute of limitations. Even though the coalition does not agree that the NLRB has the authority to create an exception to the six-month statute of limitations set forth in the NLRA, the coalition suggested the NLRB add language to confirm that the six-month statute of limitations will not be waived if a union is already in place.

Coalition

Joining the CalChamber on the coalition letter were the Associated General Contractors, California Association for Health Services at Home, California Association of Health Facilities, California Business Properties Association, California Farm Bureau Federation, California Grocers Association, California Hospital Association, California Independent Grocers Association, California League of Food Processors, California Manufacturers & Technology Association, National Council of Agricultural Employers, and Western Electrical Contractors Association.

Staff Contact: Jennifer Barrera