HOUSE_OVERSIGHT_022293.jpg

54022
Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations

II, subsection B, "Statutory Authority,"
above.)
The contention that the right to
refrain from engaging in union activity
is "buried" in the list of other
affirmative rights or that the Board is
biased in favor of unionization because
of the choice of placement is without
merit. The list of rights in the proposed
notice is patterned after the list of rights
in Section 7 of the NLRA, 29 U.S.C. 157.
Section 7 lists the right to refrain last,
after stating several other affirmative
rights before it. In addition, the Board's
remedial notices list the right to refrain
last. See Ishikawa Gasket America, Inc.,
above. So does the Board's Notice of
Election. In addition, the notice
required by this rule states that it is
illegal for an employer to take adverse
action against an employee "because
[the employee] choose[s] not to engage
in any such [union-related] activity."
The Board has revised the introduction
of the notice to include the right to
refrain—this addition further highlights
an employee's right to refrain from
union activity. Finally, the Board
believes that people understand a right
as different from an obligation and thus
will, for example, understand that the
right to organize a union includes the
right not to do so. Accordingly, the
Board concludes that the notice
sufficiently addresses the right to refrain
among the list of statutory rights. In
addressing the numerous comments
questioning the Board's neutrality, the
Board points out that in Section 1 of the
NLRA, Congress declared that it is the
policy of the United States to mitigate
or eliminate obstructions to the free
flow of commerce "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." 29 U.S.C. 151. Thus, by its
own terms, the NLRA encourages
collective bargaining and the exercise of
the other affirmative rights guaranteed
by the statute. In doing so, however, the
NLRA seeks to ensure employee choice
both to participate in union or other
protected concerted activity and to
refrain from doing so.
Turning to the issues of whether the
notice creates the impression that the
employer is encouraging unionization
and whether an employer can be
compelled to post the notice which
contains information the employer
would otherwise not share with
employees, the Board disagrees with
both arguments. First, the notice clearly
states that it is from the government.
Second, in light of the other workplace
notice employees are accustomed to
seeing, employees will understand that
the notice is a communication to
workers from the government, not from
the employer. Finally, as discussed
above, NLRA Section 8(c) protects
employers' right to express any "views,
argument, or opinion" "if such
expression contains no threat of reprisal
or force or promise of benefit." The rule
does not affect this right. Therefore, if
an employer is concerned that
employees will get the wrong
impression, it may legally express its
opinion regarding unionization as long
as it does so in a noncoercive manner.
Critics of the notice contend that the
notice should contain a number of
additional rights and also explanations
of when and how an employee may opt
out of paying union dues. Thus, most
employer groups argue that the notice
should contain a statement regarding
the right to decertify a union. A number
of those comments state that the notice
should provide detailed guidance on the
process for decertifying a union. Others
suggest that the notice should contain
instructions for deauthorizing a union
security clause. A majority of employers
and individuals who filed comments on
the content of the notice urge the Board
to include a notice of employee rights
under Communications Workers v.
Beck. Baker & McKenzie suggests
adding a provision informing employees
that for religious purposes an employee
may opt out of paying dues to a
union.107 A few comments also suggest
that the notice add any rights that
employees may have in "right-to-work"
states. As indicated previously,
numerous comments suggest the
inclusion of other rights of employees
who do not desire union representation.
Baker & McKenzie suggests a list of 26
additional affirmative rights, most of
which only affect employees in a
unionized setting and are derived from
the Labor-Management Reporting and
Disclosure Act, the Labor-Management
Relations Act, or other Federal labor
statutes enforced by the Department of
Labor. The proposed list also includes

107 NLRA Section 19 provides that "Any
employee who is a member of and adheres to
established and traditional tenets or teachings of a
bona fide religion, body, or sect which has
historically held conscientious objections to joining
or financially supporting labor organizations shall
not be required to join or financially support any
labor organization as a condition of employment;
except that such employee may be required in a
contract between such employee's employer and a
labor organization in lieu of periodic dues and
initiation fees, to pay sums equal to such dues and
initiation fees to a nonreligious, nonlabor
organization charitable fund exempt from
taxation[.]" 29 U.S.C. 169.

some rights covered by the NLRA such
as "the right to sign or refuse to sign an
authorization card," "the right to
discuss the advantages and
disadvantages of union representation
or membership with the employer," and
"the right to receive information from
the employer regarding the advantages
and disadvantages of union
representation."
The Board has determined that the
inclusion of these additional items is
unnecessary. As discussed above, the
NLRA itself contains only a general
statement that employees have the right
not to participate in union and/or other
protected concerted activities. Section
19 does specifically set forth the right of
certain religious objectors to pay the
equivalent of union dues to a tax-
exempt charity; however, this right is
implicated only when an employer and
union have entered into a union-
security arrangement. Because the
notice does not mention or explain such
arrangements, the Board finds no reason
to list this narrow exception to union-
security requirements. In sum, the
Board is not persuaded that the notice
needs to expand further on the right to
refrain by including a list of specific
ways in which employees can elect not
to participate or opt out of paying union
dues. Employees who desire more
information regarding the right not to
participate can contact the Board.
The Board does not believe that
further explication of this point is
necessary. However, because so many
comments argue that the notice should
include the right to decertify a union
and rights under Communication
Workers v. Beck, the Board has decided
to explain specifically why it disagrees
with each contention.
Concerning the right to decertify, the
notice states that employees have the
right not to engage in union activity,
"including joining or remaining a
member of a union." Moreover, the
notice does not mention the right to
seek Board certification of a union.
Indeed, contrary to the numerous
comments suggesting that the proposed
notice is a "roadmap" for union
organizing, the notice does not even
mention the right to petition for a union
representation election, possibly leading
to union certification; rather, it merely
states that employees have the right to
"organize a union" and "form, join or
assist a union." The notice does not give
any further instructions on how an
employee can exercise those rights.
Similarly, the notice states that
employees may choose not to remain a
member of a union without further
instructions on how to exercise that
right. To include instructions for

HOUSE_OVERSIGHT_022293