NLRB final rule on employer posting of NLRA employee rights notices

54018 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations Some comments argue that the Board’s notice posting rule does not go far enough to effectuate the NLRA. One labor attorney argues that the Board should require annual trainings for supervisors and captive audience meetings where employees are read their rights by supervisors and Board agents and the employees would have to acknowledge receiving those notices. The same comment suggests banning captive audience meetings by employers. The comment concludes that the NPRM “‘doesn’t go anywhere near far enough. It is, however, an important and worthwhile advancement.” % Another comment also suggests that annual, mandatory training classes for employees would be desirable.9° The Board believes that this Rule strikes the proper balance in communicating necessary information about the NLRA to employees. For all the foregoing reasons, the Board is persuaded that many private sector employees are unaware of their NLRA rights.96 III. Summary of Final Rule and Discussion of Related Comments The Board’s rule, which requires employers subject to the NLRA to post notices of employee rights under the NLRA, will be set forth in Chapter 1, Part 104 of Volume 29 of the Code of Federal Regulations (CFR). Subpart A of the rule sets out definitions; prescribes the size, form, and content of the employee notice; and lists the categories of employers that are not covered by the rule. Subpart B sets out standards and a few months, especially since the number of contractors covered by the Labor Department’s rule is only a small fraction of the number of employers subject to the NLRA. In any event, the Board does not believe that that is the proper criterion by which to measure the rule’s effectiveness. The purpose of requiring the posting of such notices is to inform employees of their rights so that they may exercise them more effectively, not to obtain any particular result such as the filing of more election petitions. The same comment also cites a couple of textbooks which it asserts are popularly used in high schools today to argue that labor history is being taught to today’s students. The Board is unable to assess the truth of that assertion, but regardless, it is unclear whether students necessarily connect this history to their future rights as employees. °3Comment of Weinberg, Roger & Rosenfeld. 947d. °5Comment of Staff Representative, Steelworkers. °6 Accordingly, the Board finds it unnecessary to conduct a study to determine the extent of employees’ knowledge of NLRA rights. The Board further observes that even if only 10 percent of workers were unaware of those rights, that would still mean that more than 10 million workers lacked knowledge of one of their most basic workplace rights. The Board believes that there is no question that at least a similar percentage of employees are unaware of the rights explained in the notice. In the Board’s view, that justifies issuing the rule. procedures related to allegations of noncompliance and enforcement of the tule. The discussion below is organized in the same manner and explains the Board’s reasoning in adopting the standards and procedures contained in the regulatory text, including the Board’s responses to the comments received. Subpart A—Definitions, Requirements for Employee Notice, and Exceptions From Coverage Definitions A. The Definitions For the most part, the definitions proposed in the rule are taken from those appearing in Section 2 of the NLRA, 29 U.S.C. 152. No comments were received concerning those definitions, and they are unchanged in the final rule. A number of comments were received concerning the definition of other terms appearing in the rule. Those comments are addressed below. B. Requirements for Employee Notice 1. Content Requirements The notice contains a summary of employee rights established under the NLRA. As explained above, the Board believes that requiring notice of employee rights is necessary to carry out the provisions of the NLRA. Accordingly, § 104.202 of the proposed rule requires employers subject to the NLRA to post and maintain the notice in conspicuous places, including all places where notices to employees are customarily posted, and to take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. As stated in the NPRM, the Board considered the substantive content and level of detail the notice should contain regarding NLRA rights. In arriving at the content of the notice of employee rights, the Board proposed to adopt the language of the Department of Labor’s final rule requiring Federal contractors to post notices of employees’ NLRA rights. 29 CFR part 471. In the NPRM, the Board explained that it tentatively agreed with the Department of Labor that neither quoting the statement of employee rights contained in Section 7 of the NLRA nor briefly summarizing those rights in the notice would be likely to effectively inform employees of their rights. Rather, the language of the notice should include a more detailed description of employee rights derived from Board and court decisions implementing those rights. The Board also stated that it saw merit in the Department of Labor’s judgment that including in the notice examples, again derived from Board and court decisions, of conduct that violates the NLRA will assist employees in understanding their rights. 75 FR 80412. Prior to issuing the NPRM, the Board carefully reviewed the content of the notice required under the Department of Labor’s final rule, which was modified in response to comments from numerous sources, and tentatively concluded that that notice explains employee rights accurately and effectively without going into excessive or confusing detail. The Board therefore found it unnecessary, for purposes of the proposed rulemaking, to modify the language of the notice in the Department of Labor’s final rule. Moreover, the Board reasoned that because the notice of employee rights would be the same under the Board’s proposed rule as under the Department of Labor’s rule, Federal contractors that have posted the Department of Labor’s required notice would have complied with the Board’s rule and, so long as that notice is posted, would not have to post a second notice. Id. The proposed notice contained examples of general circumstances that constitute violations of employee rights under the NLRA. Thus, the Board proposed a notice that provided employees with more than a rudimentary overview of their rights under the NLRA, in a user-friendly format, while simultaneously not overwhelming employees with information that is unnecessary and distracting in the limited format of a notice. As explained below, the Board also tentatively agreed with the Department of Labor that it is unnecessary for the notice to include specifically the right of employees who are not union members and who are covered by a contractual union-security clause to refuse to pay union dues and fees for any purpose other than collective bargaining, contract administration, or grievance adjustment. See Communications Workers v. Beck, 487 U.S. 735 (1988). Id. at 80412-80413. The Board specifically invited comment on the statement of employee rights proposed for inclusion in the required notice to employees. In particular, the Board requested comment on whether the notice contains sufficient information of employee rights under the NLRA; whether it effectively conveys that information to employees; and whether it achieves the desired balance between providing an overview of employee rights under the Act and limiting unnecessary and distracting information. Id. at 80413. HOUSE_OVERSIGHT_022289