NLRB Revises Union‑Related Notice Language After Public Comments

54024 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations individual provisions in this section of the notice received numerous comments and suggestions for improvement. The vast majority of the comments about the specific provisions are from representatives of employers. Those comments generally contend that the provisions are overgeneralizations and do not articulate the legal standard for evaluating allegations of unlawful conduct or indicate factual scenarios in which certain employer conduct may be lawful. After reviewing all of the comments, the Board has decided to revise one of the examples of unlawful employer conduct contained in the NPRM. The Board concludes that the other provisions, as proposed, are accurate and informative and, as with the notice as a whole, strike an appropriate balance between being simultaneously instructive and succinct. Furthermore, the Board sees no reason to add or subtract from the employer or union illegal activity to make the two sections contain an equal number of paragraphs. The comment that argues that no imbalance exists in the statute is correct, but the majority of violations under Section 8(b) concern union conduct vis-a-vis employers, not conduct that impairs employees’ rights. The notice of rights is intended to summarize employer and union violations against employees; accordingly, there is no need to alter the list to include unlawful union activity against employers. i. No-Solicitation and No-Distribution Rules The Board received a few comments that were critical of the proposed notice language stating that an employer cannot lawfully prohibit employees from “soliciting for the union during non-work time or distributing union literature during non-work time, in non- work areas.”’ The Service Employees International Union comments that “solicitation” has a narrow meaning and involves asking someone to join the union by signing an authorization card, which is subject to the restrictions suggested in the notice. The comment submits that the notice should state that an employer cannot prohibit employees from “talking” about a union. The comment suggests that ‘“‘talking” is both more accurate and is easier for employees to understand than “soliciting.” The remaining comments criticize the provision for failing to note any limitations on employees’ rights to solicit and distribute, such as the limited rights of off-duty employees, and limitations in retail and health care establishments. One comment, in particular, suggests the notice should advise healthcare employees that they do not enjoy a protected right to solicit in immediate patient care areas or where their activity might disturb patients. See Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978). The comment proposes to include a qualification that a hospital or other health care employer may prohibit all solicitation in immediate patient care areas or outside those areas when necessary to avoid disrupting health care operations or disturbing patients. Another comment suggests that the law in this area is so complex that no meaningful but succinct provision can be constructed, and therefore recommends deleting it entirely. The Board disagrees with those comments. The Board appreciates that under case law, employees’ right to engage in solicitation and distribution of literature is qualified in certain settings and accordingly that employers may, in some situations, legally prohibit solicitation or distribution of literature even during employees’ nonworking time. Given the variety of circumstances in which the right to solicit and distribute may be limited, however, the Board has determined that limitations on the size and format of the notice preclude the inclusion of factual situations in which an employer may lawfully limit such activity. As stated above, employees may contact the NLRB with specific questions about the lawfulness of their employers’ rules governing solicitation and literature distribution. Turning to the suggestion that the notice should be modified to remove the reference to union solicitation in favor of a reference only to the right to engage in union talk, the Board agrees in part. The Board distinguishes between soliciting for a union, which generally means encouraging a co-worker to participate in supporting a union, and union talk, which generally refers to discussions about the advantages and disadvantages of unionization. Scripps Memorial Hosp., 347 NLRB 52 (2006). The right to talk about terms and conditions of employment, which would necessarily include union talk, is encompassed more specifically by the “discussion’’ provision in the affirmative rights section of the notice. That provision indicates that employees have the right to “‘discuss your terms and conditions of employment or union organizing with your co-workers or a union.” In order to maintain consistency and clarity throughout the notice, the Board agrees that some change is necessary to the solicitation provision. Accordingly, the final notice will state that it is illegal for an employer to ‘‘prohibit you from talking about or 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.” ii. Questioning Employees About Union Activity The Board received one comment concerning this provision, suggesting that it was confusing. The Board believes the existing language is sufficiently clear. iii. Taking Adverse Action Against Employees for Engaging in Union- Related Activity The Board did not receive any specific comments regarding this provision. iv. Threats To Close A few comments from employer groups criticize the perceived overgeneralization of this provision. Those comments note that, as with unlawful interrogation, a threat to close is evaluated under a totality of circumstances, and that an employer is permitted to state the effects of unionization on the company so long as the statement is based on demonstrably probable consequences of unionization. The Board agrees that the law in this general area is complex and that predictions of plant closure based on demonstrably probable consequences of unionization may be lawful. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). However, the example in the proposed notice is not such a prediction; rather, the notice states that it is unlawful for an employer to “threaten to close your workplace if workers choose a union to represent them.” Such a statement, which clearly indicates that the employer will close the plant in retaliation against the employees for choosing union representation, is unlawful. Jd. at 618- 619. Thus, the Board finds it unnecessary to modify or delete this provision of the notice. v. Promising Benefits The Board received one comment addressing this provision. The comment argues that the provision is “troubling” because it may be interpreted by a reader to mean “anytime their employer seeks to make such improvements it discourages union support because improved wages and benefits may reduce employee’s interest in a union.” The Board does not think such an HOUSE_OVERSIGHT_022295