Vol. 76 Tuesday, No. 168 August 30, 2011 Part II National Labor Relations Board 29 CFR Part 104 Notification of Employee Rights Under the National Labor Relations Act; Final Rule VerDate Mar<15>2010 18:19 Aug 29, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\30AUR2.SGM 30AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 54006 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations NATIONAL LABOR RELATIONS mutual aid or protection, and shall also have The Board suggested a number of BOARD the right to refrain from any or all such reasons why such a knowledge gap activities[.] could exist—the low percentage of 29 CFR Part 104 In Section 1, 29 U.S.C. 151, Congress employees who are represented by RIN 3142–AA07 explained why it was necessary for unions, and thus lack an important those rights to be protected: source of information about NLRA Notification of Employee Rights Under The denial by some employers of the right rights; the increasing proportion of the National Labor Relations Act of employees to organize and the refusal by immigrants in the work force, who are some employers to accept the procedure of unlikely to be familiar with their AGENCY: National Labor Relations collective bargaining lead to strikes and other workplace rights; and lack of Board. forms of industrial strife or unrest, which information about labor law and labor ACTION: Final rule. have the intent or the necessary effect of relations on the part of high school burdening or obstructing commerce[.] * * * students who are about to enter the SUMMARY: On December 22, 2010, the * * * * * labor force.4 National Labor Relations Board (Board) Experience has proved that protection by Of greatest concern to the Board, issued a proposed rule requiring law of the right of employees to organize and however, is the fact that, except in very employers, including labor bargain collectively safeguards commerce limited circumstances, no one is organizations in their capacity as from injury, impairment, or interruption, and required to inform employees of their employers, subject to the National Labor promotes the flow of commerce by removing NLRA rights.5 The Board is almost Relations Act (NLRA) to post notices certain recognized sources of industrial strife unique among agencies and and unrest, by encouraging practices informing their employees of their rights departments administering major as employees under the NLRA. This fundamental to the friendly adjustment of final rule sets forth the Board’s review industrial disputes arising out of differences as to wages, hours, or other working ‘‘Renaissance at the NLRB—Opportunity and of and responses to comments on the conditions, and by restoring equality of Prospect for Non-Legislative Procedural Reform at proposal and incorporates any changes the Labor Board,’’ 23 Stetson L. Rev. 101, 107 bargaining power between employers and (1993); Morris, ‘‘NLRB Protection in the Nonunion made to the rule in response to those employees. Workplace: A Glimpse at a General Theory of comments. * * * * * Section 7 Conduct,’’ 137 U. Pa. L. Rev. 1673, 1675– The Board believes that many It is declared to be the policy of the United 1676 (1989). 75 FR at 80411. 4 employees protected by the NLRA are States to eliminate the causes of certain Id. 5 unaware of their rights under the statute substantial obstructions to the free flow of The Board requires that employees be notified of their NLRA rights in only the following narrow and that the rule will increase commerce and to mitigate and eliminate circumstances: (1) For the three working days knowledge of the NLRA among these obstructions when they have occurred before a Board-conducted representation election, employees, in order to better enable the by encouraging the practice and procedure of the employer is required to post a notice of election exercise of rights under the statute. A collective bargaining and by protecting the including a brief description of employee rights; see beneficial side effect may well be the exercise by workers of full freedom of 29 CFR 103.20. (2) When an employer or a union association, self-organization, and has been found to have violated employee rights promotion of statutory compliance by designation of representatives of their own under the NLRA, it is required to post a notice containing a brief summary of those rights. (3) employers and unions. choosing, for the purpose of negotiating the The final rule establishes the size, Before a union may seek to obligate newly hired terms and conditions of their employment or nonmember employees to pay dues and fees under form, and content of the notice, and sets other mutual aid or protection. a union-security clause, it must inform them of forth provisions regarding the Thus, Congress plainly stated that, in its their right under NLRB v. General Motors, 373 U.S. enforcement of the rule. 734 (1963), and Communications Workers v. Beck, judgment, protecting the rights of 487 U.S. 735 (1988), to be or remain nonmembers DATES: This rule will be effective on employees to form and join unions and and that nonmembers have the right to object to November 14, 2011. to engage in collective bargaining would paying for union activities unrelated to the union’s FOR FURTHER INFORMATION CONTACT: duties as the bargaining representative and to obtain benefit not only the employees a reduction in dues and fees of such activities. Lester A. Heltzer, Executive Secretary, themselves, but the nation as a whole. California Saw & Knife Works, 320 NLRB 224, 233 National Labor Relations Board, 1099 The Board was established to ensure (1995), enfd. sub nom. Machinists v. NLRB, 133 14th Street, NW., Washington, DC that employers and, later, unions F.3d 1012 (7th Cir. 1998), cert. denied sub nom. 20570, (202) 273–1067 (this is not a toll- Strang v. NLRB, 525 U.S. 813 (1998). The same respect the exercise of employees’ rights notice must also be given to union members if they free number), 1–866–315–6572 (TTY/ under the NLRA.2 did not receive it when they entered the bargaining TDD). For employees to fully exercise their unit. Paperworkers Local 1033 (Weyerhaeuser Paper SUPPLEMENTARY INFORMATION: NLRA rights, however, they must know Co.), 320 NLRB 349, 350 (1995), rev’d. on other that those rights exist and that the Board grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 I. Background on the Rulemaking (6th Cir. 1997), vacated sub nom. United protects those rights. As the Board Paperworkers Intern. Union v. Buzenius, 525 U.S. The NLRA, enacted in 1935, is the explained in its Notice of Proposed 979 (1998). (4) When an employer voluntarily Federal statute that regulates most Rulemaking (NPRM), 75 FR 80410, it recognizes a union, the Board has required that the 3 employer must post a notice informing employees: private sector labor-management has reason to think that most do not. (i) That the employer recognized the union on the 1 relations in the United States. Section basis of evidence that it was designated by a 7 of the NLRA, 29 U.S.C. 157, 2 The original NLRA did not include restrictions majority of the unit employees; (ii) the date of guarantees that on the actions of unions; those were added in the recognition; (iii) that all employees, including those Labor-Management Relations (Taft-Hartley) Act of who previously signed cards for the recognized Employees shall have the right to self- 1947, 29 U.S.C. 141 et seq., Title I. union, have the right to be represented by a labor organization, to form, join, or assist labor 3 The Board cited three law review articles in organization of their choice, or no union at all; (iv) organizations, to bargain collectively through which the authors contended that American that within 45 days of the date of the notice a representatives of their own choosing, and to workers are largely unaware of their NLRA rights, decertification or rival petition, supported by 30 engage in other concerted activities for the that the Board can take action to vindicate those percent or more of the unit employees, may be filed rights, and that this lack of knowledge stands in the with the Board and will be processed to an election; purpose of collective bargaining or other way of employees’ effectively exercising their and, (v) that if no petition is filed within 45 days, rights. Peter D. DeChiara, ‘‘The Right to Know: An the recognition will not be subject to challenge for 1 Labor-management relations in the railroad and Argument for Informing Employees of Their Rights a reasonable period to allow the employer and airline industries are governed by the Railway under the National Labor Relations Act,’’ 32 Harv. union to negotiate a collective-bargaining Labor Act, 45 U.S.C. 151 et seq. J. on Legis. 431, 433–434 (1995); Charles J. Morris, agreement. Dana Corp., 351 NLRB 434 (2007). VerDate Mar<15>2010 18:19 Aug 29, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\30AUR2.SGM 30AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations 54007 Federal labor and employment laws in the NLRA and providing information In all, 7,034 comments were received not requiring employers routinely to pertaining to the enforcement of those from employers, employees, unions, post notices at their workplaces rights. 75 FR 80411. For the reasons employer organizations, worker informing employees of their statutory discussed more fully below, the Board assistance organizations, and other rights.6 Given this common practice of tentatively determined that the content concerned organizations and workplace notice-posting, it is of the notice should be the same as that individuals, including two members of reasonable for the Board to infer that a of the notice required under the Congress.