NLRB Notice Revision on Employee Right to Refrain from Union Activity

54022 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations II, subsection B, “Statutory Authority,” above.) The contention that the right to refrain from engaging in union activity is ‘‘buried”’ in the list of other affirmative rights or that the Board is biased in favor of unionization because of the choice of placement is without merit. The list of rights in the proposed notice is patterned after the list of rights in Section 7 of the NLRA, 29 U.S.C. 157. Section 7 lists the right to refrain last, after stating several other affirmative rights before it. In addition, the Board’s remedial notices list the right to refrain last. See Ishikawa Gasket America, Inc., above. So does the Board’s Notice of Election. In addition, the notice required by this rule states that it is illegal for an employer to take adverse action against an employee ‘‘because [the employee] choose[s] not to engage in any such [union-related] activity.” The Board has revised the introduction of the notice to include the right to refrain—this addition further highlights an employee’s right to refrain from union activity. Finally, the Board believes that people understand a right as different from an obligation and thus will, for example, understand that the right to organize a union includes the right not to do so. Accordingly, the Board concludes that the notice sufficiently addresses the right to refrain among the list of statutory rights. In addressing the numerous comments questioning the Board’s neutrality, the Board points out that in Section 1 of the NLRA, Congress declared that it is the policy of the United States to mitigate or eliminate obstructions to the free flow of commerce “‘by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. 151. Thus, by its own terms, the NLRA encourages collective bargaining and the exercise of the other affirmative rights guaranteed by the statute. In doing so, however, the NLRA seeks to ensure employee choice both to participate in union or other protected concerted activity and to refrain from doing so. Turning to the issues of whether the notice creates the impression that the employer is encouraging unionization and whether an employer can be compelled to post the notice which contains information the employer would otherwise not share with employees, the Board disagrees with both arguments. First, the notice clearly states that it is from the government. Second, in light of the other workplace notice employees are accustomed to seeing, employees will understand that the notice is a communication to workers from the government, not from the employer. Finally, as discussed above, NLRA Section 8(c) protects employers’ right to express any ‘‘views, argument, or opinion” “if such expression contains no threat of reprisal or force or promise of benefit.’’ The rule does not affect this right. Therefore, if an employer is concerned that employees will get the wrong impression, it may legally express its opinion regarding unionization as long as it does so in a noncoercive manner. Critics of the notice contend that the notice should contain a number of additional rights and also explanations of when and how an employee may opt out of paying union dues. Thus, most employer groups argue that the notice should contain a statement regarding the right to decertify a union. A number of those comments state that the notice should provide detailed guidance on the process for decertifying a union. Others suggest that the notice should contain instructions for deauthorizing a union security clause. A majority of employers and individuals who filed comments on the content of the notice urge the Board to include a notice of employee rights under Communications Workers v. Beck. Baker & McKenzie suggests adding a provision informing employees that for religious purposes an employee may opt out of paying dues to a union.1°7 A few comments also suggest that the notice add any rights that employees may have in “right-to-work”’ states. As indicated previously, numerous comments suggest the inclusion of other rights of employees who do not desire union representation. Baker & McKenzie suggests a list of 26 additional affirmative rights, most of which only affect employees in a unionized setting and are derived from the Labor-Management Reporting and Disclosure Act, the Labor-Management Relations Act, or other Federal labor statutes enforced by the Department of Labor. The proposed list also includes 107 NLRA Section 19 provides that “Any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required ina contract between such employee’s employer and a labor organization in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabor organization charitable fund exempt from taxation[.]’’ 29 U.S.C. 169. some rights covered by the NLRA such as “the right to sign or refuse to sign an authorization card,” ‘‘the right to discuss the advantages and disadvantages of union representation or membership with the employer,’ and “the right to receive information from the employer regarding the advantages and disadvantages of union representation.”’ The Board has determined that the inclusion of these additional items is unnecessary. As discussed above, the NLRA itself contains only a general statement that employees have the right not to participate in union and/or other protected concerted activities. Section 19 does specifically set forth the right of certain religious objectors to pay the equivalent of union dues to a tax- exempt charity; however, this right is implicated only when an employer and union have entered into a union- security arrangement. Because the notice does not mention or explain such arrangements, the Board finds no reason to list this narrow exception to union- security requirements. In sum, the Board is not persuaded that the notice needs to expand further on the right to refrain by including a list of specific ways in which employees can elect not to participate or opt out of paying union dues. Employees who desire more information regarding the right not to participate can contact the Board. The Board does not believe that further explication of this point is necessary. However, because so many comments argue that the notice should include the right to decertify a union and rights under Communication Workers v. Beck, the Board has decided to explain specifically why it disagrees with each contention. Concerning the right to decertify, the notice states that employees have the right not to engage in union activity, “including joining or remaining a member of a union.” Moreover, the notice does not mention the right to seek Board certification of a union. Indeed, contrary to the numerous comments suggesting that the proposed notice is a “roadmap” for union organizing, the notice does not even mention the right to petition for a union representation election, possibly leading to union certification; rather, it merely states that employees have the right to “organize a union” and “form, join or assist a union.”’ The notice does not give any further instructions on how an employee can exercise those rights. Similarly, the notice states that employees may choose not to remain a member of a union without further instructions on how to exercise that right. To include instructions for HOUSE_OVERSIGHT_022293