HOUSE_OVERSIGHT_022277.jpg

AUTHENTICATED
U.S. 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.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,

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).

HOUSE_OVERSIGHT_022277