Judge Rules Private Sector Employers Must Post Notice of Union Rights

The Department of Labor and federal regulations require that posters and notices be placed in the workplace keeping employees aware of their applicable minimum wage laws and other rights to working time and workplace safety, among other protections.   Last week, federal district court judge Amy Berman Jackson ruled that the National Labor Relations Board (NLRB) may also require that most private sector employers post notices in the workplace informing employees of their union rights, to become effective April 30 of this year.  The rule is significant and wide-ranging, as it applies to almost all private sector employers in the United States.

The posters would state that employees have the right engage in union activities and be free from retaliation for union participation, distribute union literature, and bargain collectively.  Notably, the posters would also explain that an employee has the right not to join a union.  Business groups encouraged Judge Jackson to consider the issue of the Obama’s appointment of three Board members during a recess, arguing that the Senate was not technically in recess and so the appointments are unconstitutional.  Judge Jackson declined to consider this matter, because the Board approved the posters before the new members were appointed.

Though the ruling is seen as a significant victory by labor leaders, enforcement of the requirement for posters will prove to be virtually impossible under the ruling.  Judge Jackson held that no violation exists if an employer fails to display the required poster unless the non-display is accompanied by other anti-union action or sentiment.

Employers argue that to require employers to hang a poster informing employees of their legal right to form or join a union is to require them to support union activity to the point of encouraging it.  Further, businesses made an argument that the posters mandated that they speak out in favor of unions, against their constitutional, first amendment rights to free speech.  Judge Jackson said, however, that the postings are neutral and informative, and do not serve to inflict a stance upon employers as to union efficacy – they simply make employees aware of their existent rights under the law.

The Board reasoned that there are many types of workers, such as high school students, immigrants, and employees in places where unions do not currently exist, that simply do not know that they have the right to unionize and bargain collectively.  Judge Jackson agreed with the Board on this point.  A week after the ruling came down, business leaders and right-to-work groups announced their decision to appeal the ruling.

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