Critique of NLRB Notice‑Posting Rulemaking Process

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54041 on substantial evidence, nor does it provide a satisfactory explanation for the choice they have made. They contend that a mandatory notice posting rule enforceable through Section 8(a)(1) is needed because they believe that most employees are unaware of their NLRA rights and therefore cannot effectively exercise those rights. This belief is based on: (1) Some studies indicating that employees and high school students about to enter the work force are generally uninformed about labor law; (2) an influx of immigrants in the labor force who are presumably also uninformed about labor law; (3) the current low and declining percentage of union-represented employees in the private sector, which presumably means that unions are less likely to be a source of information about employee rights; and (4) the absence of any general legal requirement that employers or anyone else inform employees about their NLRA rights. 75 FR 80411. Neither the Notice of Proposed Rulemaking nor today’s notice summarizing comments in response to that notice come anywhere close to providing a substantial factual basis supporting the belief that most employees are unaware of their NLRA rights. As for the lack of high school education on this subject, we have only a few localized studies cited in a 1995 journal article by a union attorney.184 With respect to the assumption that immigrants entering the work force, we have even less, only anecdotal accounts. For that matter, beyond the cited journal article, almost all supposed factual support for the premise that employees are generally unaware of their rights comes in comments received from individuals, union organizers, attorneys representing unions, and immigrant rights and worker assistance organizations agreeing, based on professed personal experience, that most employees (obviously not including most of the employee commenters) are unfamiliar with their NLRA rights. There are, as well, anecdotal accounts and comments from employers, employer associations and 184 Peter D. DeChiara, ‘‘The Right to Know: An Argument for Informing Employees of Their Rights under the National Labor Relations Act,” 32 Harv. J. on Legis. 431, at 436 and fn. 28 (1995). In the Notice of Proposed Rulemaking, the majority also relied on two articles by Professor Charles J. Morris, a co-petitioner for notice-posting rulemaking: “Renaissance at the NLRB— Opportunity and Prospect for Non-Legislative Procedural Reform at the Labor Board,” 23 Stetson L. Rev. 101, 107 (1993); and “NLRB Protection in the Nonunion Workplace: A Glimpse at a General Theory of Section 7 Conduct,” 137 U. Pa. L. Rev. 1673, 1675-1676 (1989). Professor Morris did not refer to any specific evidence supporting a belief that employees lack knowledge of their rights. management attorneys to the opposite effect that the employees know about their rights under the Act, but my colleagues find these less persuasive. In any event, the partisan opinions and perceptions, although worthy of consideration, ultimately fail as substantial evidence supporting the Board majority’s initial premise for proposing the rule. There remains the Board’s conclusion that the decline in union density provides the missing factual support. The majority explains that there was less need for a posting of information about NLRA rights when the union density was higher because “friends and family who belonged to unions’ would be a source of information. This is nothing more than supposition. There is no empirical evidence of a correlation between union density and access to information about employee rights, just as there are no broad-based studies supporting the suppositions about a lack of information stemming from high school curricula or the influx of immigrants in the work force. At bottom, the inadequacy of the record to support my colleagues’ factual premise is of no matter to them. In response to comments contending that the articles and studies they cite are old and inadequately supported, they glibly respond that the commenters ‘‘cite no more recent or better supported studies to the contrary,” as if opponents of the proposed rule bear that burden. Of course, it is the agency’s responsibility to make factual findings that support its decision and those findings must be supported by substantial evidence that must examine the relevant data and articulate a satisfactory explanation for its action. Burlington Truck Lines, 371 U.S. at 167. Even more telling is the majority’s footnote observation that there is no real need to conduct a study of the extent of employees’ knowledge of NLRA rights because the notice posting rule would be justified even if only 10 percent of the workforce lacked such knowledge. This statement betrays the entire factual premise upon which the rulemaking initiative was purportedly founded and reveals a predisposition to issue the rule regardless of the facts. This is patently “arbitrary and capricious.” Even assuming, if we must, that there is some factual basis for a concern that employees lack sufficient information about their NLRA rights, the majority also fails to provide a rational explanation for why that concern dictates their choice made to address that concern. Why, for instance, was a noncompulsory information system, primarily reliant on personal union communications, sufficient when the Wagner Act was passed, but not now? The union density levels for 1935 and today are roughly the same.185 Why at a time when the Board champions its new Web site and the Acting General Counsel continues to encourage the regional outreach programs initiated by his predecessor, do my colleagues so readily dismiss the Board’s role in providing information about rights under the statute we administer? For that matter, why are the numerous employee, labor organizer, and worker advocacy groups whose comments profess awareness of these rights unable to communicate this information to those who they know lack such awareness? Is the problem one of access or message? Would a reversal of the union density trend or an increase in petition and charge filings be the only reliable indicators of increased awareness? I would think that a reasoned explanation for the choice of a sweeping rule making it unlawful for employers to fail to post and maintain notice of employee rights would at least include some discussion of these questions and attempt to marshal more than a fragmented and inconclusive factual record to support their choice. The majority fails to do so. Their rule is patently arbitrary and capricious. Executive Order 13496 The majority mentions in passing Executive Order 13496 186 and the DOL implementing regulation 187 mandating that Federal contractors post a notice to employees of NLRA rights that is in most respects identical to the notice at issue here. Their consideration of this administrative action should have led them to the understanding that they lack the authority to do what the President and DOL clearly could do to advance essentially the same policy choice. The authority to require that contractors agree to post an NLRA employee rights notice as part of doing business with the Federal government comes both from the President’s authority as chief executive and the specific grant of Congressional authority in the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq. There was no need or attempt to justify the promulgation of the notice-posting rule by relying on evidence that employees lacked knowledge of their rights. Moreover, in 185 Mayer, Gerald, “Union Membership Trends in the United States” (2004). Federal Publications. Paper 174, Appendix A. http:// digitalcommons.ilr.cornell.edu/key_workplace/. 186 74 FR 6107 (Feb. 4, 2009). 187 75 FR 28368 (May 20, 2011). HOUSE_OVERSIGHT_022312