Labor comments highlight widespread lack of NLRA awareness among workers

54016 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations organize. This is not a cure for employer intimidation, * * * but it is a step in the right direction. —As an employee at will, | was not aware of my rights to form a union or any rights that I may have had under the NLRA.® —I worked in the construction materials testing industry for about eight years. During that time I had no idea I had the right to join a union.® —As a working class citizen, | am well aware of just how rare it is for my fellow workers to know their rights. For that reason, this is arule that is extremely overdue. * * *. A sampling of comments from labor attorneys, workers’ organizations, and labor organizations is consistent with these employees’ comments: —It is my experience that upwards of 95% of employees have no idea what their rights are with respect to labor unions.® —In fact, [have had many employees over the years tell me that their employers have told them that they do not allow unions at their workplace.® —Workers today do not know what their rights are under the NLRA. As a Union organizer with more than 20 years of experience, without exception, every worker | encounter thinks that it is perfectly legal for their employer to fire them simply for saying the word union, or even to speak with other employees at work about general working conditions. The protections afforded workers to engage in protected concerted activity around workplace issues is unknown to the majority of workers today.®* —It is the experience of [Service Employees International Union (SEIU) Local 615] that many employees are woefully unaware of their rights under the NLRA and that that lack of knowledge makes employees vulnerable when they desire to address their wages and working conditions with the employers.®7 —I have participated in hundreds of organizing campaigns involving thousands of employees. In my experience, most people had no idea what their rights were to organize or join unions.® Some unions also assert that even unionized employees often do not have a clear understanding of the NLRA. One union staff representative writes that “there seems to be a disconnect, most of our membership does not know a thing about NLRA.”’ 6° Another union steward comments similarly: I saw how union members were often unaware of their rights unless the union 62 Comment of International Staff Representative, Steelworkers. 63 Comment of Member, Local 150, Operating Engineers. 64 Comment of Organizer, Local 150, Operating Engineers. 65 Comment of Strokoff and Cowden. 66 Comment of Organizer, Teamsters, Local 117. ®7Comment of SEIU Local 615. 68 Comment of Financial Secretary, Local 150, Operating Engineers. 69 Comment of Staff Representative, Steelworkers. specifically did outreach and member education, or unless the employee ran into a problem and came to a steward for assistance. * * * Notice to employees, however, could provide a starting point for those employees to try to assert rights that they currently have on paper but often do not have in practice. Several immigrant workers’ organizations comment on the difficulty that this population has in understanding their rights and accessing the proper help when needed.7° These organizations note that laws in the immigrants’ home countries may be quite different from those of the United States, and the high barrier that lack of fluency in English creates in making these persons aware of their rights under the NLRA.”! These organizations also contend that because guestworkers in particular can work only for the employer that requested their visa, they are extremely vulnerable to labor violations, and that these employers routinely misrepresent the existence of NLRA rights.”72 The National Day Laborers Organizing Network claims that ‘‘most workers are not aware of their right to organize.”’ One immigrant construction worker, commenting favorably on the proposed rule, explains that she learned English after coming to the United States from Poland: “While working as a testing technician, I had no idea I had the right to join a union.” She writes: I think a government written notice posted in the workplace would be a critical source of information for employees who want to join a union. Especially in this industry where many people like myself are foreign born, there is a language barrier that adds to the difficulty in understanding our legal rights. I take government posted notices seriously and believe other people do as well.73 Significantly, the Board received numerous comments opposing the rule precisely because the commenters believe that the notice will increase the level of knowledge about the NLRA on the part of employees. Specifically, they predict that the rule will lead to increased unionization and create alleged adverse effects on employers and the economy generally. For example, Baker and Daniels LLP comments that as more employees become aware of their NLRA rights, they will file more unfair labor practice 70 See e.g., comments of National Immigration Law Center and Latino Justice. 71 See, e.g., comment of Friends of Farmworkers, Inc. 72 Comment of Alliance of Guestworkers for Dignity. 73 Comment of Instructor, Apprenticeship and Skill Improvement Program, Local 150, Operating Engineers. charges and elect unions to serve as their collective-bargaining representatives. But fear that employees may exercise their statutory rights is not a valid reason for not informing them of their rights. Moreover, the NLRA protects the right to join a union and to refrain from doing so and the notice so states. In addition, the NLRA confers and protects other rights besides the right to join or refrain from joining unions. Section 7 provides that employees have the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]’’ Such protected concerted activities include concertedly complaining or petitioning to management concerning their terms and conditions of employment; 74 concertedly petitioning government concerning matters of mutual interest in the workplace; 75 and concertedly refusing to work under poor working conditions.’® Few if any of the comments contending that employees know about their NLRA rights assert that employees are aware of the right to engage in such protected concerted activities in the nonunion setting. By contrast, as shown above, many comments favoring the rule report that nonunion employees are especially unlikely to be aware of their NLRA rights. Although some comments contend that the articles cited by the Board in support of its belief that employees are largely unaware of the NLRA rights are old and inadequately supported,’” they cite no more recent or better supported studies to the contrary. In addition, the percentage of the private sector workforce represented by unions has declined from about 12 percent in 1989, about the time the articles cited in the NPRM were published, to 8 percent presently; 78 thus, to the extent that lack of contact with unions contributed to lack of knowledge of NLRA rights 20 years ago, it probably is even more of a factor today.’ 74 North Carolina License Plate Agency #18, 346 NLRB 293 (2006), enf’d. 243 F. Appx. 771 (4th Cir. 2007) (unpublished). 75 Eastex, Inc. v. NLRB, above, 437 U.S. at 565- 567. 76 NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). 77 See comment of Cass County Electric Cooperative. For example, Professor Morris, author of two of the articles cited by the Board (as “see also’) listed no authority to support his assertion that employees lack knowledge about the NLRA. See Charles J. Morris, ‘‘Renaissance at the NLRB,” above at fn. 3; Morris, ‘‘NLRB Protection in the Nonunion Workplace,” above at fn. 3. 78 See DeChiara, ““The Right to Know,” above at fn. 1; 75 FR 80411 fn. 4. 79 The Printing and Imaging Association discussed these declining rates of unionization, and HOUSE_OVERSIGHT_022287