NLRB Board Declines to Expand Employee Rights Notice in 2011 Rulemaking

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54023 exercising one right and not the other would upset the balanced recitation of rights. If employees have questions concerning how they can exercise their rights, the notice encourages them to contact the Board. The Board has also determined that the addition of Beck rights in the final notice is unnecessary. Those rights apply only to employees who are represented by unions under collective- bargaining agreements containing union-security provisions. As stated in the NPRM, unions that seek to obligate employees to pay dues and fees under those provisions are required to inform those employees of their Beck rights. See California Saw & Knife Works, above, 320 NLRB at 233. See 75 FR at 80412-80413. The Board was presented with no evidence during this rulemaking that suggests that unions are not generally complying with their notice obligations. In addition, the Notice of Election, which is posted days before employees vote on whether to be represented by a union, contains an explanation of Beck rights. Moreover, as the Board stated in the NPRM, only about 8 percent of all private sector employees are represented by unions, and by no means are all of them subject to union-security clauses. Accordingly, the number of employees to whom Beck applies is significantly smaller than the number of employees in the private sector covered by the NLRA. Id. at 80413. Indeed, in the “‘right-to-work’”’ states, where union-security clauses are prohibited, no employees are covered by union security clauses, with the possible exception of employees who work in a Federal enclave where state laws do not apply. Accordingly, because Beck does not apply to the overwhelming majority of employees in today’s private sector workplace, and because unions already are obliged to inform the employees to whom it does apply of their Beck rights, the Board is not including Beck notification in the final notice. The Board also disagrees with the comment from Baker & McKenzie contending that an exhaustive list of additional rights should be included in the notice. In addition to the reasons discussed above, the Board finds that it would not be appropriate to include those rights, most of which are rights of union members vis-a-vis their unions. For example, the comment suggests including the “right for each union member to insist that his/her dues and initiation fees not be increased * * * except by a majority vote by secret ballot * * *,” the ‘‘right of each employee in a bargaining unit to receive a copy of the collective bargaining agreement,” and the “‘right to nominate candidates, to vote in elections of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon business properly before the meeting.” Those rights are not found in the NLRA, but instead arise from other Federal labor laws not administered by the NLRB. See Labor- Management Reporting and Disclosure Act of 1959, 29 U.S.C. 401 et seq (LMRDA). The Board finds that it would be inappropriate to include those additional rights in a notice informing employees of their rights under the NLRA. vi. Other Comments The Board has also considered, but rejected, the contention that the notice contain simply a “short and plain” description of rights such as that used in remedial notices. See Ishikawa Gasket America, Inc., above. The two notices have different purposes: one looks back; the other, forward. As explained in the NPRM, the principal purpose of a remedial notice is to inform employees of unlawful conduct that has taken place and what is being done to remedy that conduct. Accordingly, although a remedial notice contains only a brief summary of NLRA rights, it also contains examples of unlawful actions that have been committed. To the extent that such a notice generally increases employees’ awareness of their rights, the unlawful conduct detailed adds to that awareness. The proposed notice, by contrast, is a notice intended to make employees aware of their NLRA rights generally. It normally will not be posted against a background of already-committed unfair labor practices; it therefore needs to contain a summary both of NLRA rights and examples of unlawful conduct in order to inform employees effectively of the extent of their NLRA rights and of the availability of remedies for violations of those rights. Moreover, as the Board explained in the NPRM, the general notice of rights posted in the pre-election notice is sufficient because at least one union along with the employer is on the scene to enlighten employees of their rights under the NLRA. 75 FR 80412 fn.19. The fundamental rights described in the notice are well established and have been unchanged for much of the Board’s history. Accordingly, the Board does not share the concern expressed in some comments that a new notice will have to be posted each time the composition of the Board changes. Finally, the Board rejects the contention that the notice should address certain rights of employers. The notice is intended to inform employees of their rights, not those of their employers. For all the foregoing reasons, the Board finds it unnecessary to modify the section of the notice summarizing employees’ NLRA rights. c. The Examples of Unlawful Employer Conduct in the Notice The proposed notice contained the following examples of unlawful conduct: Under the NLRA, it is illegal for your employer to: Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms. Question you about your union support or activities in a manner that discourages you from engaging in that activity. Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity. Threaten to close your workplace if workers choose a union to represent them. Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support. Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances. Spy on or videotape peaceful union activities and gatherings or pretend to do so. 75 FR 80419. The Board received limited comments on six of the seven examples of unlawful employer conduct. As a general matter, some comments contend that the number of examples of employer misconduct is disproportionate compared to the examples of union misconduct.1°® Most of the comments refer to the number of paragraphs devoted to illegal employer conduct (7) and the number of paragraphs devoted to illegal union conduct (5). Several comments indicate that when one compares the employer misconduct listed in Section 8(a) of the NLRA with union misconduct listed in Section 8(b), no such imbalance appears in the text of the statute. Several comments provide additional examples of union misconduct that they say should be included. As with the notice’s statement of affirmative rights, some of the 108 See, e.g., comments of COLLE, Baker & McKenzie, National Association of Manufacturers, and American Trucking Association. HOUSE_OVERSIGHT_022294