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Review & Outlook: The LABOR BOARD Wants You –

August 31, 2011

The Labor Board Wants You

The NLRB will now require union posters.


Nothing like the end of a week in August with a hurricane on the way to bury another political favor for unions. When not telling U.S. companies where they are allowed to locate their operations, the National Labor Relations Board will now require them to display pro-organizing propaganda.

The new rule issued last Thursday requires management to post notices about employee rights to unionize, collectively bargain and strike under the National Labor Relations Act. The NLRB believes that workers are not familiar enough with that 76-year-old law “and therefore cannot effectively exercise those rights.” The ostensible basis for that conclusion is “the comparatively small percentage of private sector employees who are represented by unions.”

Talk about post-hoc reasoning. The NLRB seems to believe that it must promote unions because the percentage of private sector workers in unions—6.9% today, down from a 1954 peak of 35%—is too low. What would the “comparatively” correct share be? At any rate, an 11 by 17 inch broadside “in such colors and type size and style as the Board shall prescribe” is unlikely to reverse this downward trend, which is largely the result of union effects on business competitiveness and long-term job security.

The NLRB will design and distribute the notices—is Shepard Fairey, the man who did those 2008 “Hope” posters, available?—so the direct costs could be de minimis, though of course they will fall disproportionately on businesses that lack the legal departments to parse a 194-page regulation about posters in the workplace.

But the rule is especially notable because the NLRB has no statutory authority to promulgate it. The board only has powers when they are invoked by a union petition or an unfair labor practice allegation. The NLRB decided to act purely on its own discretion, thus imposing on some six million employers, the vast majority of which are not under suspicion for any labor violations. You can expect judicial challenges.

The larger danger is that the NLRB will now view failing to post such signs as an unfair labor practice and perhaps “evidence of antiunion animus” in the labor cases that it does adjudicate. In other words, the poster rule is another potential pretext for punishing businesses; the campaign against Boeing for siting a new plant in right-to-work South Carolina isn’t based on much more evidence.

This rule was issued by the NLRB’s three-member Democratic majority, with a dissent from Brian Hayes, who rightly calls the rule “arbitrary and capricious.” It does reveal—again—that the NLRB has become in the Obama era ultra-politicized and an advocate for unions, and it also helps to explain private job creation, or lack thereof.

via Review & Outlook: The Labor Board Wants You –


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