NLRB Notice Posting Rule Debate Shows Mixed Public Comments on Employee Awareness of NLRA Rights

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54015 NLRA; the high percentage of immigrants in the labor force, who are likely to be unfamiliar with workplace rights in the United States; studies indicating that employees and high school students about to enter the work force are generally uninformed about labor law; and the absence ofa requirement that, except in very limited circumstances, employers or anyone else inform employees about their NLRA rights. 75 FR 80411. A large number of comments contend that the Board failed to demonstrate the necessity of the notice posting rule. They challenge each of the premises (except the last) underlying the Board’s belief that employees are generally unaware of their NLRA rights. Many comments assert that, contrary to the Board’s belief, the right to join a union is widely known and understood by employees. For example: —I believe the majority of employees know about labor unions and how to form a union, and this poster is unnecessary.*9 —IIlt is hard to imagine that there are many in the US who do not know that they can try to join a union. —The fact of the matter is that if a group of employees are upset enough with their current management that they feel they need union representation, they already know what they need to do as a recourse. And if they do not immediately know how to respond, there are plenty of resources for them.5° —We, the employees, know the unions exist, * * * Ifthe employees want to know about unions, they should research it themselves. It is not as though the information is not readily available. Some posit that comparatively few private sector employees are represented by unions not because employees do not know that they can join unions, but because they have consciously rejected union representation for any number of reasons (e.g., they do not believe that unions can help them; they do not want to pay union dues; they deem union representation unnecessary in light of other workplace protection statutes). For example: —lIs it not just as probable that people clearly understand unions, and they have decided they want no part of them? —Labor unions charge approximately 1.3% of pre-tax earnings for monthly dues. Many workers, especially those who lost their good paying jobs during this recession and have found new jobs at $10.00-$11.00 per hour wages, need the dues money themselves, in order to support their families. 49 Comment of the Employers Association. 5° Comment of Malt-O-Meal Company (Malt-O- Meal). —Membership is down because so many of the good things unions fought for a long time ago have been legislated, at either the Federal or State level, and so the need for unions has declined.51 —I[Mlost employees are very aware of their rights to unionize and many employees choose not to do so because of the rights they already have under our federal and state laws. —In fact, one could say that the NLRA and other employment laws have succeeded to the degree that unions are NOT necessary in today’s work environment.®2 A few comments question the Board’s belief that immigrant workers are unfamiliar with their workplace rights.>? Several comments argue that the NLRA has been in effect for nearly 76 years, which is sufficient time for employees to learn about its provisions.>4 A number of comments argue that the studies cited in the NPRM are from the late 1980s and early 1990s and are therefore out of date >> (and also, some say, poorly supported).5® Moreover, those studies, whatever their value when published, predate the wide use of the internet. Now there are many online sources of information concerning unions and union organizing, including the Board’s own Web site. According to these comments, it should not be necessary to require employers to post notices of NLRA rights because employees who are interested in learning about unions can quickly and easily find such information online.>”? One comment, like some others, argues that “If it is so important that employees know their rights under the NLRB it should be the government or union whose responsibility it is to inform them.’’ 58 Two comments suggest that the Board conduct a mass media informational campaign to that end, and one notes that the Board has in fact recently increased 51 Comment of Tecton Products. 52 Comment of Printing and Imaging Association of MidAmerica (Printing and Imaging Ass’n). 53 See, e.g., comment of the Printing and Imaging Ass'n. 54 See, e.g., comment of Coalition for a Democratic Workplace. 55 See, e.g., comments of Printing Industries of America and the Portland Cement Association. 56 See, e.g., comments of Cass County Electric Cooperative and Pilchak Cohen & Tice, P.C. 57 As one person states, ‘The internet has long ago replaced lunch room bulletin board postings as the means by which employees learn of and exercise their rights.”’ 58 Such comments appear to misunderstand that by this rule, the Board is indeed seeking to inform employees of the provisions of the NLRA, using the most accessible venues to reach them, their workplaces. Other comments question why this rule does not mandate notice posting by governmental employers. The NLRA does not cover such employers. See Section 2(2), 29 U.S.C. 152(2). its public information efforts.59 One comment urges the Board to conduct a study to ascertain current employees’ level of NLRA knowledge before imposing a notice posting requirement. In contrast, as discussed in more detail below, numerous comments from individuals, union organizers, attorneys representing unions, and worker assistance organizations agree with the Board that most employees are unfamiliar with their NLRA rights. Immigrant rights organizations state that immigrant workers largely do not know about their rights. After careful consideration of the comments on both sides of this issue, the Board believes that many employees are unaware of their NLRA rights and that a notice posting requirement is a reasonable means of promoting greater knowledge among employees. To the extent that employees’ general level of knowledge is uncertain, the Board believes that the potential benefit of a notice posting requirement outweighs the modest cost to employers. Certainly, the Board has been presented with no evidence persuasively demonstrating that knowledge of NLRA rights is widespread among employees. The comments asserting that the right to join a union is widely known cite little, if any, support for that assertion. By contrast, many of the comments contending that employees are unfamiliar with their NLRA rights base their statements on personal experience or on extensive experience representing or otherwise assisting employees. Many individual workers, commenting on the rule, indicate their personal experiences with the lack of NLRA knowledge and concurrent strong support for the rule. For example: —Even though most of my coworkers and supervisors were highly intelligent people, it is my experience that most workers are almost totally unaware of their rights under the NLRA. —Knowing that there is a federal agency out there that will protect the rights of working people to organize is essential to the exercise of those rights. —TI had no idea that I had the right to join a union, and was often told by my employer that I could not do so.* * *I think employers should be required to post notices so that all employees may make an informed decision about their rights to join a union.6° —Workers have rights and they have the right to know them.®? —[Tlhere is a lot of ignorance among young workers and veteran workers alike with regard to knowledge of their right to 59 Comment of Fisher & Phillips, LLP. 60 Comment of Member, Local 150, Operating Engineers. 61 Comment of Organizer, IBEW. HOUSE_OVERSIGHT_022286