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AUTHENTICATED US, GOVERNMENT, INFORMATION, GPO, 54006 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations NATIONAL LABOR RELATIONS BOARD 29 CFR Part 104 RIN 3142-AA07 Notification of Employee Rights Under the National Labor Relations Act AGENCY: National Labor Relations Board. ACTION: Final rule. SUMMARY: On December 22, 2010, the National Labor Relations Board (Board) issued a proposed rule requiring employers, including labor organizations in their capacity as employers, subject to the National Labor Relations Act (NLRA) to post notices informing their employees of their rights as employees under the NLRA. This final rule sets forth the Board’s review of and responses to comments on the proposal and incorporates any changes made to the rule in response to those comments. The Board believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance by employers and unions. The final rule establishes the size, form, and content of the notice, and sets forth provisions regarding the enforcement of the rule. DATES: This rule will be effective on November 14, 2011. FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Washington, DC 20570, (202) 273-1067 (this is not a toll- free number), 1-866-315-6572 (TTY/ TDD). SUPPLEMENTARY INFORMATION: I. Background on the Rulemaking The NLRA, enacted in 1935, is the Federal statute that regulates most private sector labor-management relations in the United States.1 Section 7 of the NLRA, 29 U.S.C. 157, guarantees that Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other 1 Labor-management relations in the railroad and airline industries are governed by the Railway Labor Act, 45 U.S.C. 151 et seq. mutual aid or protection, and shall also have the right to refrain from any or all such activities[.] In Section 1, 29 U.S.C. 151, Congress explained why it was necessary for those rights to be protected: The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce[.] * * * * * * * * Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees. * * * * * It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred 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. Thus, Congress plainly stated that, in its judgment, protecting the rights of employees to form and join unions and to engage in collective bargaining would benefit not only the employees themselves, but the nation as a whole. The Board was established to ensure that employers and, later, unions respect the exercise of employees’ rights under the NLRA.? For employees to fully exercise their NLRA rights, however, they must know that those rights exist and that the Board protects those rights. As the Board explained in its Notice of Proposed Rulemaking (NPRM), 75 FR 80410, it has reason to think that most do not.* 2 The original NLRA did not include restrictions on the actions of unions; those were added in the Labor-Management Relations (Taft-Hartley) Act of 1947, 29 U.S.C. 141 et seq., Title I. 3 The Board cited three law review articles in which the authors contended that American workers are largely unaware of their NLRA rights, that the Board can take action to vindicate those rights, and that this lack of knowledge stands in the way of employees’ effectively exercising their rights. 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, 433-434 (1995); Charles J. Morris, The Board suggested a number of reasons why such a knowledge gap could exist—the low percentage of employees who are represented by unions, and thus lack an important source of information about NLRA rights; the increasing proportion of immigrants in the work force, who are unlikely to be familiar with their workplace rights; and lack of information about labor law and labor relations on the part of high school students who are about to enter the labor force.* Of greatest concern to the Board, however, is the fact that, except in very limited circumstances, no one is required to inform employees of their NLRA rights.5 The Board is almost unique among agencies and departments administering major “Renaissance at the NLRB—Opportunity and Prospect for Non-Legislative Procedural Reform at the Labor Board,” 23 Stetson L. Rev. 101, 107 (1993); Morris, ““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). 75 FR at 80411. 41d. 5 The Board requires that employees be notified of their NLRA rights in only the following narrow circumstances: (1) For the three working days before a Board-conducted representation election, the employer is required to post a notice of election including a brief description of employee rights; see 29 CFR 103.20. (2) When an employer or a union has been found to have violated employee rights under the NLRA, it is required to post a notice containing a brief summary of those rights. (3) Before a union may seek to obligate newly hired nonmember employees to pay dues and fees under a union-security clause, it must inform them of their right under NLRB v. General Motors, 373 U.S. 734 (1963), and Communications Workers v. Beck, 487 U.S. 735 (1988), to be or remain nonmembers and that nonmembers have the right to object to paying for union activities unrelated to the union’s duties as the bargaining representative and to obtain a reduction in dues and fees of such activities. California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The same notice must also be given to union members if they did not receive it when they entered the bargaining unit. Paperworkers Local 1033 (Weyerhaeuser Paper Co.}, 320 NLRB 349, 350 (1995), rev’d. on other grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated sub nom. United Paperworkers Intern. Union v. Buzenius, 525 U.S. 979 (1998). (4) When an employer voluntarily recognizes a union, the Board has required that the employer must post a notice informing employees: (i) That the employer recognized the union on the basis of evidence that it was designated by a majority of the unit employees; (ii) the date of recognition; (iii) that all employees, including those who previously signed cards for the recognized union, have the right to be represented by a labor organization of their choice, or no union at all; (iv) that within 45 days of the date of the notice a decertification or rival petition, supported by 30 percent or more of the unit employees, may be filed with the Board and will be processed to an election; and, (v) that ifno petition is filed within 45 days, the recognition will not be subject to challenge for a reasonable period to allow the employer and union to negotiate a collective-bargaining agreement. Dana Corp., 351 NLRB 434 (2007). HOUSE_OVERSIGHT_022277