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NLRB Issues New Rules on Workplace Postings of Union Rights

I don’t think the President gets enough credit for revitalizing the NLRB. This was an example of Obama doing the right thing without worrying about the political consequences. NLRB commissioners were stuck and the board was unable to operate with less than a quorum. Republicans were holding up the commissioners, including one of their own nominees (there are traditionally 3 Democrats and 2 Republicans on the NLRB), letting the dysfunction take place. Obama made recess appointments for the two Democrats, not the Republican.

And what has been the result? The NLRB has become functional. They issued a high-profile ruling on Boeing illegally moving its operations to avoid union workers in Washington state. But they’ve also issued dozens of other rulings at a rapid pace, clearing the backlog from the months when it was unable to rule at all. Another ruling, a minor one but potentially significant, came down today:

The National Labor Relations Board issued new regulations on Thursday that require companies to put posters on their bulletin boards that inform employees about their rights to unionize under federal law.

Under the new regulations, businesses would have to display notices that explain the right to bargain collectively, to give out union literature and to work together to improve wages and conditions free of retaliation.

Noting that many workers are unaware of these rights, the board said the new regulations are aimed at making it easier for workers to exercise their rights under the National Labor Relations Act, which sets rules for unionization efforts. Agricultural, rail and airline employers would not be covered by the new rule.

Businesses predictably castigated the rule. But are they really that afraid of a little knowledge? Raise your hand if you’ve ever truly read the posters in the break room. It’s good to have this knowledge available to workers; it’s hardly transformative and the operational cost is measured in dollars.

This does build on efforts to allow for quicker and more informed union elections on worksites, a feature of NLRB rules over the past year. The election rules announced in June will have a much greater impact than this posting rule. But this is apparently the first posting requirement in the workplace from the NLRB since its inception in 1935.

Sadly, this burst of activity at the NLRB will soon come to an end. Wilma Leibman, the Democratic chairwoman, ends her term on Saturday. The board will only have a 2-1 majority for Democrats at that point, and will have less ability to make rulings. A rule on unionizing certified nursing assistants is expected before Saturday.

Now, what was the impact of the recess appointments, then? The NLRB got back to being a functional agency. Was there politial fallout? Certainly, in the case of the Boeing decision. Did anyone not already disinclined to hate Obama and unions move away from him as a result? I highly doubt it. This is an example of the President using the Constitutional authority of the office to make a difference in the lives of workers, without obsessing on the political costs. It’s a model going forward: there are lots of recess appointments that could be made. And the President has all the authority he needs to do so.

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David Dayen

David Dayen