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54006 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations
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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 tollfree
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 selforganization,
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. 2
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. 3
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,
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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. 4
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.
4 Id.
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 if no 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).
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Federal labor and employment laws in
not requiring employers routinely to
post notices at their workplaces
informing employees of their statutory
rights. 6 Given this common practice of
workplace notice-posting, it is
reasonable for the Board to infer that a
posting requirement will increase
employees’ awareness of their rights
under the NLRA. 7 Further support for
that position is President Obama’s
recent Executive Order 13496, issued on
January 30, 2009, which stressed the
need for employees to be informed of
their NLRA rights. Executive Order
13496 requires Federal contractors and
subcontractors to include in their
Government contracts specific
provisions requiring them to post
notices of employees’ NLRA rights. On
May 20, 2010, the Department of Labor
issued a Final Rule implementing the
order effective June 21, 2010. 75 FR
28368, 29 CFR part 471.
After due consideration, the Board
has decided to require that employees of
all employers subject to the NLRA be
informed of their NLRA rights.
Informing employees of their statutory
rights is central to advancing the
NLRA’s promise of ‘‘full freedom of
association, self-organization, and
designation of representatives of their
own choosing.’’ NLRA Section 1, 29
U.S.C. 151. It is fundamental to
employees’ exercise of their rights that
the employees know both their basic
rights and where they can go to seek
help in understanding those rights.
Notice of the right of self-organization,
to form, join, or assist labor
organizations, to bargain collectively, to
engage in other concerted activities, and
to refrain from such activities, and of
the Board’s role in protecting those
statutory rights is necessary to effectuate
the provisions of the NLRA.
The Board believes that the workplace
itself is the most appropriate place for
communicating with employees about
their basic statutory rights as employees.
Cf. Eastex, Inc. v. NLRB, 437 U.S. 556,
574 (1978) (‘‘[T]he plant is a particularly
appropriate place for the distribution of
[NLRA] material.’’).
Accordingly, and pursuant to its
rulemaking authority under Section 6 of
the NLRA, the Board proposed a new
rule requiring all employers subject to
the NLRA to post a copy of a notice
advising employees of their rights under
6 See, e.g., Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e–10(a); Age Discrimination in
Employment Act, 29 U.S.C. 627; Family and
Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair
Labor Standards Act, 29 CFR 516.4 (implementing
29 U.S.C. 211). 75 FR 80411.
7 As set forth in the NPRM, two petitions were
filed to address this anomaly. 75 FR 80411.
the NLRA and providing information
pertaining to the enforcement of those
rights. 75 FR 80411. For the reasons
discussed more fully below, the Board
tentatively determined that the content
of the notice should be the same as that
of the notice required under the
Department of Labor’s notice posting
rule, 29 CFR part 471. Id. at 80412. Also,
as discussed at length below, the Board
proposed that failure to post the notice
would be found to be an unfair labor
practice—i.e., to interfere with, restrain,
or coerce employees in the exercise of
their NLRA rights, in violation of
Section 8(a)(1) of the NLRA. Id. at
80414. The Board also proposed that
failure to post the notice could lead to
tolling of the 6-month statute of
limitations for filing unfair labor
practice charges, and that knowing and
willful failure to post the notice could
be considered as evidence of unlawful
motive in unfair labor practice cases. Id.
The Board explained that the burden of
compliance would be minimal—the
notices would be made available at no
charge by the Board (both electronically
and in hard copy), and employers
would only be required to post the
notices in places where they
customarily post notices to employees;
the rule would contain no reporting or
recordkeeping requirements. Id. at
80412. Finally, the Board expressed its
position that it was not required to
prepare an initial regulatory flexibility
analysis of the proposed rule under the
Regulatory Flexibility Act, 5 U.S.C. 601
et seq., and that the notice posting
requirement was not subject to the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Id. at 80415–80416.
The Board invited comments on its
legal authority to issue the rule, the
content of the notice, the requirements
for posting the notice, the proposed
enforcement scheme, the definitions of
terms in the proposed rule, and on its
positions concerning the Regulatory
Flexibility Act and the Paperwork
Reduction Act. The Board stated that
comments would be accepted for 60
days following the publication of the
NPRM in the Federal Register, or until
February 22, 2011. The Board received
6,560 comments by February 22.
However, many late-filed comments
were also submitted, and the Board
decided to accept all comments that it
received on or before March 23. 8
8 March 23, 2011 was the date that the Board
downloaded all of the electronic and (pdf. versions
of) hard copy comments it had received from
http://www.regulations.gov and subsequently
uploaded into a text analytics tool for coding and
review.
A few commenters submitted their comments in
both electronic and hard copy form. Because all
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In all, 7,034 comments were received
from employers, employees, unions,
employer organizations, worker
assistance organizations, and other
concerned organizations and
individuals, including two members of
Congress. The majority of comments, as
well as Board Member Hayes’ dissent,
oppose the rule or aspects of it; many
opposing comments contain suggestions
for improvement in the event the Board
issues a final rule. Many comments,
however, support the rule; a few of
those suggest changes to clarify or
strengthen the rule. The Board wishes to
express its appreciation to all those who
took the time to submit thoughtful and
helpful comments and suggestions
concerning the proposed rule. 9
After careful consideration of the
comments received, the Board has
decided to issue a final rule that is
similar to that proposed in the NPRM,
but with some changes suggested by
commenters. The most significant
change in the final rule is the deletion
of the requirement that employers
distribute the notice via email, voice
mail, text messaging or related
electronic communications if they
customarily communicate with their
employees in that manner. Other
significant changes include
clarifications of the employee notice
detailing employee rights protected by
the NLRA and unlawful conduct on the
part of unions; clarification of the rule’s
requirements for posting notices in
foreign languages; allowing employers
to post notices in black and white as
well as in color; and exemption of the
U.S. Postal Service from coverage of the
rule. The Board’s responses to the
comments, and the changes in the rule
and in the wording of the required
notice of employee rights occasioned by
the comments, are explained below. (In
his dissent, Board Member Hayes raises
a number of points that are also made
in some of the comments. The Board’s
responses to those comments should be
understood as responding to the dissent
as well.) 10
comments received are included in the numbers
cited in text above, those numbers overstate
somewhat the number of individuals, organizations,
etc. that submitted comments.
9 Many comments charge that the Board is issuing
the rule for political reasons, to encourage and
spread unionism, to discourage employers and
employees from engaging in direct communication
and problem solving, to drive up union
membership in order to retain agency staff, and
even to ‘‘line [its] pockets.’’ The Board responds
that its reasons for issuing the rule are set forth in
this preamble.
10 The Board majority’s reasoning stands on its
own. By its silence, the majority does not adopt any
characterization made by the dissent of the
majority’s rationale or motives.
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II. Authority
Section 6 of the NLRA, 29 U.S.C. 156,
provides that ‘‘The Board shall have
authority from time to time to make,
amend, and rescind, in the manner
prescribed by the Administrative
Procedure Act [5 U.S.C. 553], such rules
and regulations as may be necessary to
carry out the provisions of this Act.’’ As
discussed in detail below, the Board
interprets Section 6 as authorizing the
rule.
A. The Board’s Section 6 Rulemaking
Authority
Numerous comments dispute the
Board’s statutory authority to enact the
proposed rule. Many note the fact that
the Board’s rulemaking is constrained
by Congressional intent as evidenced in
its enabling statute. For instance, the
American Trucking Association quotes a
Ninth Circuit case explaining that
Section 6 ‘‘does not authorize the Board
to promulgate rules and regulations
which have the effect of enlarging its
authority beyond the scope intended by
Congress,’’ 11 and similarly, the Motor &
Equipment Manufacturers Association
asserts, ‘‘A regulation cannot stand if it
is contrary to the statute.’’ 12 The Board
agrees that it may not exercise its
rulemaking authority in a way contrary
to that intended by Congress, but for the
reasons discussed below it also does not
believe that it has done so in this rule.
Several comments assert that because
NLRA Section 6 is written in general,
rather than specific, terms, the Board is
not empowered to enact the proposed
rule. For example, Associated Builders
and Contractors argues that ‘‘the lack of
express statutory language under
Section 6 of the NLRA to require the
posting of a notice of any kind ‘is a
strong indicator, if not dispositive, that
the Board lacks the authority to impose
such a requirement * * *.’ ’’ 13 And the
Heritage Foundation likewise argues
that the Board’s reliance upon its
general Section 6 rulemaking authority
does not suffice to meet the
Administrative Procedure Act’s
requirement that the NPRM must
11 Gen. Eng’g, Inc. v. NLRB, 341 F.2d 367, 374
(1965).
12 Citing United States v. O’Hagan, 521 U.S. 642,
673 (1997). However, the Supreme Court actually
held there that an agency’s interpretation of its
enabling statute must be given ‘‘controlling weight
unless it is arbitrary, capricious, or manifestly
contrary to the statute.’’ (quoting Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
844 (1984)). There, the Court upheld the rule and
found it was not arbitrary, capricious, or manifestly
contrary to the statute.
13 Quoting Member Hayes’ dissent, 75 FR 80415.
‘‘reference the legal authority under
which the rule is proposed.’’ 14
The Board believes that these