Article Date: 05/24/2013

Could National Labor Relations Board Policies Paralyze the U.S. Construction Industry?

By Steve Rizer


Savoring a victory that a federal appeals court delivered earlier this month when it invalidated the National Labor Relations Board’s (NLRB) “notification of employee rights” notice posting rule, Associated Builders and Contractors (ABC) Vice President of Federal Affairs Geoff Burr proclaimed that his organization “will continue to fight NLRB’s politically motivated policies that threaten to paralyze the construction industry in order to benefit the special interests of politically powerful unions.”


Such a threat exists because “the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law,” according to the association, which represents roughly 23,000 merit shop contractors, subcontractors, materials suppliers, and construction-related firms. ABC pointed to the posting rule, which the U.S. Court of Appeals for the District of Columbia Circuit addressed in National Association of Manufacturers [NAM], et al., v. National Labor Relations Board, et. al. (No. 12-5068), as “the perfect example” of such abandonment.


The rule (76 Federal Register 54006), which NLRB issued in August 2011, directed all employers subject to the National Labor Relations Act (NLRA) to “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with [NLRB] contact information and information concerning basic enforcement procedures…. In addition, employers who customarily communicate with their employees electronically must publish NLRB’s notice on their intranet or internet sites.” The rule would have applied to an estimated six million private employers nationwide.


NLRB specified that the poster inform employees of their right to form, join, or assist a union; bargain collectively through representatives of their choosing; discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; take action to improve working conditions; strike and picket; or choose not to engage in any of these activities. As an enforcement mechanism, the rule declared that an employer’s failure to post the notice would represent an unfair labor practice -- a practice that may be interpreted to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7, 29 United States Code (U.S.C.) 157, in violation of NLRA Section 8(a)(1), 29 U.S.C. 158(a)(1), 29 Code of Federal Regulations Section 104.210.


In making its decision, the court determined that the agency’s rule violates NLRA Section 8(c) because “it makes an employer’s failure to post the board’s notice an unfair labor practice and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire -- in other words, because it treats such a failure as evidence of an unfair labor practice.”


Via an interview with NLRB Associate Executive Secretary Henry Breiteneicher, ConstructionPro Week sought to get his organization’s reaction to both the court’s ruling and ABC’s assertions.


Regarding the organization’s reaction to the ruling, Breiteneicher said, “The Board’s official statement regarding the D.C. Circuit’s decision is: ‘The board is currently reviewing the court’s decision on the employee rights notice rule and will make a decision on further proceedings at the appropriate time. The rule is also currently under review by the [U.S. Court of Appeals for the] Fourth Circuit.’”


When asked for a response to ABC’s comments, Breiteneicher referred to pages 24-32 of NLRB’s motion for summary judgment in the NAM district court proceeding, which can be accessed at - msj.pdf.



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