NLRB public notice on unlawful union conduct and collective bargaining provisions

54026 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations Another comment argues that the illegal union conduct portion of the notice fails to fully inform employees of their rights as union members.1°9 In contrast, another comment states a different position—that the list of illegal union conduct ‘ostensibly relates only to restraint or coercion by a union in a unionized environment.’ 11° The comment further states that the Board should have included examples of “union restraint or coercion in an organizing setting” but gives no specific examples. ALFA suggests three changes to the unlawful union activity section. First, rather than say that the union may not “threaten you that you will lose your job,” a more comprehensive statement would be “threaten, harass, or coerce you in order to gain your support for the union.’ The Board agrees, except as regards “‘harass,” which is sometimes used to characterize almost any sort of union solicitation. Accordingly, the statement will be modified to read “threaten or coerce you in order to gain your support for the union.”’ Second, the comment suggests changing “‘cause or attempt to cause an employer to discriminate against you” to “discriminate or attempt to discriminate against you because you don’t support a union.” The Board disagrees, because the suggested change would shift the focus of the provision away from the sort of conduct contemplated in the tule. See NLRA Section 8(b)(2), 29 U.S.C. 158(b)(2). Third, the comment suggests changing “‘take other adverse action against you based on whether you have joined or support the union” to “take adverse action against you because you have not joined or do not support the union.’ The Board agrees and will modify this provision of the notice accordingly. Baker & McKenzie urges that a variety of other examples of unlawful union conduct be added to the notice, including requiring nonmembers to pay a fee to receive contract benefits, disciplining members for engaging in activity adverse to a union-represented grievant, disciplining members for refusing to engage in unprotected activity, engaging in careless grievance handling, failing to notify employees of their Beck rights, requiring employees to agree to dues checkoff instead of direct payment, discriminatorily applying hiring hall rules, and conditioning continued employment on the payment of a fine or dues in “‘right-to-work’”’ states. 109 See comment of National Association of Manufacturers. 110 See comment of ALFA. As with the examples of unlawful employer activity, the Board concludes that the provisions concerning unlawful union activity, as proposed, are accurate and informative, and, as with the notice as a whole, strike an appropriate balance between being simultaneously instructive and succinct. Moreover, the Board finds it unnecessary to include additional examples of unlawful conduct so that the lists of employer and union activity are the same length because the notice describes the central forms of unlawful conduct engaged in by each type of entity. Still less is it necessary to add a host of additional examples of unlawful union conduct, with the result that the list of such conduct would be much longer than the list of unlawful employer conduct. In the Board’s view, the list of unlawful union conduct in the proposed notice fairly informs employees of the types of conduct that a union is prohibited from engaging in without providing unnecessary or confusing examples. Employees may contact the NLRB if they believe a union has violated the NLRA. e. Collective-Bargaining Provision The collective-bargaining provision of the NPRM states that “if you and your co-workers select a union to act as your collective bargaining representatives, your employer and the union are required to bargain in good faith and in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.” 75 FR 80419. The Board received only a few comments on this provision of the notice. Notably, COLLE requests the inclusion of a limitation on the provision that employees have the right to bargain collectively, in order to clarify that the employer’s obligation is only to bargain in good faith and not necessarily to reach an agreement. A second comment suggests that the notice inform employees that they have the right to “sue a union for unfairly representing the employee in bargaining, contract administration, or a discrimination matter.” The Board has decided that no changes are necessary to the duty to bargain paragraph. The Board is satisfied that the proposed collective- bargaining provision provides sufficient guidance to employees about the exercise of these rights while still staying within the constraints set by a necessarily brief employee notice. As to the first comment, the notice states that an employer and union have a duty to “bargain in good faith and in a genuine effort to reach a written, binding agreement.” As discussed above, by referring to a “genuine effort’ to reach agreement, the notice necessarily implies that the parties are not obliged to actually reach one. The duty to bargain in good faith has many components. See NLRB v. Katz, 369 U.S. 736 (1962). And the suggestion that employers do not have to agree to certain proposals, although correct, does not account for the line of cases that suggest that an important ingredient in good faith bargaining is a willingness to compromise. See Phelps Dodge, 337 NLRB 455 (2002). Turning to the suggestion that the notice include language informing employees of their right to “sue” the union if it fails to represent them fairly, the Board has concluded that the notice sufficiently apprises employees of their right to fair representation and of their right to file unfair labor practice charges with the Board should a union fail to fulfill that duty. The rights that employees have to sue unions directly in court without coming to the Board are beyond the scope of this rulemaking. f. Coverage Provision In regard to coverage under the NLRA, the proposed notice states: The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public- sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered). 75 FR 80419. A comment from the National Immigration Law Center suggests adding the following language: ““The NLRA protects the above-enumerated rights of all employees, irrespective of their immigration status. That protection extends to employees without work authorization, though certain remedies in those circumstances may be limited. Employers cannot threaten you or intimidate you on the basis of you immigration status to prevent you from joining or supporting a union, or engaging in concerted activity for mutual aid and protection.” The Board has decided not to amend the coverage provision in the final notice. Although the Board understands that many immigrant employees may be unsure whether they are covered by the NLRA, the notice does not include a list of covered employees. Including specific coverage of immigrants, but not other classes of employees, may cause HOUSE_OVERSIGHT_022297