Labor Board Defends NLRA Notice Posting Rule Amid Public Comments

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54017 In support of their contention that NLRA rights are widely known among employees, several comments observe that the Board’s processes for holding representation elections and investigating and remedying unfair labor practices are invoked tens of thousands of time a year.®° That is true. However, the civilian work force includes some 108 million workers potentially subject to the NLRA.*1 Thus, the number of employees who invoke the Board’s processes make up only a small percentage of the covered workforce. Accordingly, the Board does not consider the number of times the Board’s processes are invoked to be persuasive evidence that workers generally are aware of their NLRA rights. Finally, remarks in multiple opposing comments strongly suggest that the commenters themselves do not understand the basic provisions of the NLRA: —If my employees want to join a union they need to look for a job in a union company.5? —la]nytime one of our independent tradesmen would like to join the union they are free to apply and be hired by a union contractor. —If a person so desires to be employed by a union company, they should take their ass to a union company and apply for a union job. —Belonging to a union is a privilege and a preference—not a right.8? —If they don’t like the way I treat them, then go get another job. That is what capitalism is about.84 cited Professor Kate Bronfenbrenner’s doctoral dissertation, “Seeds of Resurgence: Successful Union Strategies for Winning Certification Elections and First Contracts in the 1980s and Beyond,” (available at http://digitalcommons.ilr.cornell.edu/ cgi/viewcontent.cgi?article=1002&context=reports& sei-redir=1#search=“‘Kate+Bronfenbrenner, +Uneasy+terrain:+ Thet+ impact+of+capital+mobility+ont+ workers,+wages,tand+union’) to argue that the higher win rates for unions in elections involving both immigrant and older workers argued against the need for the proposed rule. The Board is not addressing the many debated causes of the declining rates of private sector unionization in the United States. This rule simply accepts those rates as given, and seeks to increase the knowledge of NLRA provisions among those without readily available sources of reliable information on these provisions. 80 See, e.g., comment of Desert Terrace Healthcare Center. 81 See Bureau of Labor Statistics, Economic News Release, Table B—1, “Employees on nonfarm payrolls by industry sector and selected industry detail,” May 3, 2011 (seasonally adjusted data for March 2011) http://data.bis.gov/timeseries ENS11300000?vears_option=specific_vears Sinclude_graphs=true&to_vear=2010 &from_vear=1948 (last visited June 6, 2011). 52Comment of P & L Fire Protection, Inc. 83 Comment of OKC Tea Party. 84Comment of Montana Records Management, LLP. —We are not anti-union; but feel as Americans, we must protect our right not to be signatory to a third party in our business.85 —If one desires to be a part of a union, he or she is free to apply to those companies that operate with that form of relationship.8 —l also believe employees already have such notice by understanding they retain the right to change employers whenever they so choose.87 These comments reinforce the Board’s belief that, in addition to informing employees of their NLRA rights so that they may better exercise those rights, posting the notice may have the beneficial side effect of informing employers concerning the NLRA’s requirements.®® As to the contention that information concerning unions is widely available on the internet, including on the Board’s Web site, the Board responds that not all employees have ready access to the internet. Moreover, it is reasonable to assume that an employee who has no idea that he or she has a right to join a union, attempt to organize his employer’s workforce, or engage in other protected concerted activities, would be less likely to seek such information than one who is aware of such rights and wants to learn more about them.?° The Board is pleased that it has received a large number of inquiries at its Web site seeking information concerning NLRA rights, but it is under no illusion that that information will reach more than a small fraction of the workforce in the foreseeable future. Several comments assert that, in any event, requiring the posting of notices 85 Comment of Humphrey & Associates, Inc. 86 Comment of Medina Excavating, Inc. 87 Comment of Olsen Tool & Plastics, Co. 88 And as one union official writes: Having been active in labor relations for 30 years I can assure you that both employees and employers are confused about their respective rights under the NLRA. Even union officers often do not understand their rights. Members and non-members rarely understand their rights. Often labor management disputes arise because one or both sides are mis- informed about their rights. Often the employer takes an action it truly believes is within its rights when it is not. Comment of Civil Service Employees Association. 89 Thus, the many comments that assert that employees can just use Internet search engines to find out about unions (see, e.g., comments of Winseda Corp. Homestead Village, Inc.}, misapprehend the breadth of the rights of which the Board seeks to apprise all employees. As stated above, Section 7 is not merely about the right to join or refrain from joining a labor organization, but more broadly protects the right of employees to engage in ‘concerted activities” for the purpose of “mutual aid or protection.” It is this right that is the most misunderstood and simply not subject to an easy Internet search by employees who may have no idea of what terms to use, or even that sucha right might be protected at all. will not be effective in informing employees of their rights, because employees will simply ignore the notices, as the comments contend they ignore other workplace postings. “Posters are an ineffective means of educating workers and are rarely read by employees.” 9° Other comments argue that adding one more notice to the many that are already mandated under other statutes will simply create more “visual clutter” that contributes to employees’ disinclination to pay attention to posted notices. As one employer stated, ‘““My bulletin boards are filled with required notifications that nobody reads. In the past 15 years, not one of our 200 employees has ever asked about any of these required postings. I have never seen anyone ever read one of them.” %! Another wrote, “Employers are already required to post so many notices that these notices have lost any semblance of effectiveness as a governmental communication channel.” To these comments, the Board responds that the experiences of the commenters is apparently not universal; other comments cited above contend that employees are more knowledgeable about their rights under statutes requiring the posting of notices summarizing those rights than about their NLRA rights. Moreover, not every employee has to read workplace notices for those notices to be effective. If only one employee of a particular employer reads the Board’s notice and conveys what he or she has read to the other employees, that may be enough to pique their interest in learning more about their NLRA rights. In addition, the Board is mandating electronic notice to employees on an internet or intranet site, when the employer customarily communicates with its employees about personnel rules or policies in that way, in order to reach those who read paper notices and those who read electronic postings. As for the comment that argues that the Board can use public service announcements or advertising to reach employees, the Board believes that it makes much more sense to seek to reach directly the persons to whom the Act applies, in the location where they are most likely to hear about their other employment rights, the workplace.9 28° Comment of Riverbend Community Mental Health. ®1Comment of Farmers Cooperative Compress. ®2 Printing Industries of America uses election data to argue that the Labor Department’s notice posting rule for Federal contractors has not been effective because the rate of elections has not increased. It is unclear whether any meaningful conclusion can be drawn from election data for only Continued HOUSE_OVERSIGHT_022288