Public comments on NLRB proposed workplace notice reveal debate over union‑rights balance

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54019 The proposed Appendix to Subpart A included Board contact information and basic enforcement procedures to enable employees to learn more about their NLRA rights and how to enforce them. Thus, the required notice confirmed that unlawful conduct will not be permitted, provided information about the Board and about filing a charge with the Board, and stated that the Board will prosecute violators of the NLRA. The notice also indicated that there is a 6- month statute of limitations for filing charges with the Board alleging violations and provided Board contact information. The Board invited suggested additions or deletions to these provisions that would improve the content of the notice of employee rights. Id. The content of the proposed notice received more comments than any other single topic in the proposed rule. But of the thousands of comments that address the content of the notice, the majority are either very general, or identical or nearly identical form letters or “postcard” comments sent in response to comment initiatives by various interest groups, including those representing employers, unions, and employee rights organizations. Many comments from both individuals and organizations offer general support for the content of the proposed notice, stating that employee awareness of basic legal rights will promote a fair and just workplace, improve employee morale, and foster workforce stability, among other benefits.97 More specifically, one comment asserts that the proposed notice ‘‘contains an accurate, understandable and balanced presentation of rights.” 98 The United Transportation Union contends that the “notice presents an understandable, concise and extremely informative recitation of workers’ rights, without getting bogged down in extraneous language, incomprehensible legalese or innumerable caveats and exceptions.” Other comments were less supportive of the content of the proposed notice and the notice-posting requirement in general. A significant number of comments, including those from many individuals, employers, and employer industry and interest groups, argue that the content of the notice is not balanced, and appears to promote unionization instead of employee freedom of association. In particular, many comments state that Section 7 of the °7 See comments of the National Immigration Law Center, Service Employees International Union, and Weinberg, Roger & Rosenfeld. °8 Comment of David Fusco, a labor and employment attorney. NLRA includes the right to refrain from union activity, but claim that this right is given little attention in comparison to other rights in the proposed notice. Several comments also argue that the proposed notice excludes rights associated with an anti-union position, including the right to seek decertification of a bargaining representative, the right to abstain from union membership in “‘right-to-work”’ states, and rights associated with the Supreme Court’s decision in Communications Workers v. Beck.°° Comments also suggest that the notice should include a warning to employees that unionizing will result in a loss of the right to negotiate directly with their employer.1°° Many of these comments argue that a neutral government position on unionization would be more inclusive of anti-union rights.1° A number of comments address the issue of complexity, and argue that the Board’s attempt to summarize the law is flawed because the Board’s decisional law is too complex to condense into a single workplace notice.1°2 Some of the comments addressing this issue note that NLRA law has been developed over 75 years, and involves interpretations by both the NLRB and the Federal courts, sometimes with conflicting results. The Chamber of Commerce cites the ““NLRB’s Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board” (Basic Guide to the NLRA) (1997), available at http:// www.nirb.gov/publications/brochures, to make their point about legal complexity. In the Foreword to the Basic Guide to the NLRA, the Board’s General Counsel states that ‘‘[alny effort to state basic principles of law ina simple way is a challenging and unenviable task. This is especially true about labor law, a relatively complex field of law.”’ The thrust of these comments about legal complexity was that the NLRA is complex, dynamic, and nuanced, and any attempt to summarize it in a workplace notice will result in an oversimplification of the law and lead to confusion, misunderstanding, inconsistencies, and some say, heightened labor-management antagonism. Moreover, some comments express concern that Board member turnover could result in changes to the 99 See comments of Pilchak, Cohen & Tice, American Trucking Association, and Electrical and Mechanical Systems Inc. 100 See, e.g. comment of the Heritage Foundation. 101 See, e.g., comment of the National Right to Work Committee. 102 See, e.g., comment of COLLE, Retail Industry Leaders Association. law, which may require frequent updates to the notice.1% Many comments suggest that the required notice should include only the specific rights contained in Section 7 of the NLRA or, at most, the rights and obligations stated in employee aclvisories on the NLRB’s Web site. The comments favoring a more general notice suggest that the detailed list of rights far exceeds the “‘short and plain” description of rights that the Board has found sufficient to “clearly and effectively inform employees of their rights under the Act’’ in unfair labor practice cases.1°4 See Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). A comment from Fisher & Phillips LLP argues that, under the Board’s current remedial practices, only an employer that egregiously violates the Act on numerous occasions is required to post such an inclusive list of rights. Finally, a number of comments suggest that the notice should include a list of employer rights, namely the right to distribute anti-union literature and the right to discuss the company’s position regarding unions. In addition to the general comments about the proposed notice, many comments offer suggestions for specific revisions to individual provisions within the five sections of the proposed notice: the introduction, the statement of affirmative rights, the examples of unlawful conduct, the collective- bargaining provision, and the coverage information. The following discussion presents the comments related to individual provisions of the notice, followed by the Board’s decisions regarding the content of the final notice made in response to those comments. a. Comments Regarding the Introduction The introduction to the notice of rights in the proposed rule stated: The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRB are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace. 103 See comment of Capital Associated Industries, Inc. and National Association of Manufacturers. 104 See e.g. comments of COLLE and Coalition for a Democratic Workplace. HOUSE_OVERSIGHT_022290