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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
54017

In support of their contention that
NLRA rights are widely known among
employees, several comments observe
that the Board's processes for holding
representation elections and
investigating and remedying unfair
labor practices are invoked tens of
thousands of time a year. 80 That is true.
However, the civilian work force
includes some 108 million workers
potentially subject to the NLRA. 81 Thus,
the number of employees who invoke
the Board's processes make up only a
small percentage of the covered
workforce. Accordingly, the Board does
not consider the number of times the
Board's processes are invoked to be
persuasive evidence that workers
generally are aware of their NLRA
rights.
Finally, remarks in multiple opposing
comments strongly suggest that the
commenters themselves do not
understand the basic provisions of the
NLRA:
-If my employees want to join a union they
need to look for a job in a union
company.82
-[a]nytime one of our independent
tradesmen would like to join the union
they are free to apply and be hired by a
union contractor.
-If a person so desires to be employed by
a union company, they should take their
ass to a union company and apply for a
union job.
-Belonging to a union is a privilege and a
preference-not a right. 83
-If they don't like the way I treat them, then
go get another job. That is what capitalism
is about. 84

-We are not anti-union; but feel as
Americans, we must protect our right not
to be signatory to a third party in our
business. 85
-If one desires to be a part of a union, he
or she is free to apply to those companies
that operate with that form of
relationship. 86
-I also believe employees already have such
notice by understanding they retain the
right to change employers whenever they
so choose. 87

These comments reinforce the Board's
belief that, in addition to informing
employees of their NLRA rights so that
they may better exercise those rights,
posting the notice may have the
beneficial side effect of informing
employers concerning the NLRA’S
requirements.88

As to the contention that information
concerning unions is widely available
on the internet, including on the Board's
Web site, the Board responds that not all
employees have ready access to the
internet. Moreover, it is reasonable to
assume that an employee who has no
idea that he or she has a right to join a
union, attempt to organize his
employer's workforce, or engage in
other protected concerted activities,
would be less likely to seek such
information than one who is aware of
such rights and wants to learn more
about them. 89 The Board is pleased that
it has received a large number of
inquiries at its Web site seeking
information concerning NLRA rights,
but it is under no illusion that that
information will reach more than a
small fraction of the workforce in the
foreseeable future.

Several comments assert that, in any
event, requiring the posting of notices
will not be effective in informing
employees of their rights, because
employees will simply ignore the
notices, as the comments contend they
ignore other workplace postings.
"Posters are an ineffective means of
educating workers and are rarely read
by employees." 90 Other comments
argue that adding one more notice to the
many that are already mandated under
other statutes will simply create more
"visual clutter" that contributes to
employees' disinclination to pay
attention to posted notices. As one
employer stated, "My bulletin boards
are filled with required notifications
that nobody reads. In the past 15 years,
not one of our 200 employees has ever
asked about any of these required
postings. I have never seen anyone ever
read one of them." 91 Another wrote,
"Employers are already required to post
so many notices that these notices have
lost any semblance of effectiveness as a
governmental communication channel."
To these comments, the Board
responds that the experiences of the
commenters is apparently not universal;
other comments cited above contend
that employees are more knowledgeable
about their rights under statutes
requiring the posting of notices
summarizing those rights than about
their NLRA rights. Moreover, not every
employee has to read workplace notices
for those notices to be effective. If only
one employee of a particular employer
reads the Board's notice and conveys
what he or she has read to the other
employees, that may be enough to pique
their interest in learning more about
their NLRA rights. In addition, the
Board is mandating electronic notice to
employees on an internet or intranet
site, when the employer customarily
communicates with its employees about
personnel rules or policies in that way,
in order to reach those who read paper
notices and those who read electronic
postings. As for the comment that
argues that the Board can use public
service announcements or advertising to
reach employees, the Board believes
that it makes much more sense to seek
to reach directly the persons to whom
the Act applies, in the location where
they are most likely to hear about their
other employment rights, the
workplace.92

cited Professor Kate Bronfenbrenner's doctoral
dissertation, "Seeds of Resurgence: Successful
Union Strategies for Winning Certification Elections
and First Contracts in the 1980s and Beyond,"
(available at http://digitalcommons.ilr.cornell.edu/
cgi/viewcontent.cgi?article=1002&context=reports&
sei-redir=1#search="Kate+Bronfenbrenner,
+Uneasy+terrain:+The+
impact+of+capital+mobility+on+
workers,+wages,+and+union") to argue that the
higher win rates for unions in elections involving
both immigrant and older workers argued against
the need for the proposed rule.
The Board is not addressing the many debated
causes of the declining rates of private sector
unionization in the United States. This rule simply
accepts those rates as given, and seeks to increase
the knowledge of NLRA provisions among those
without readily available sources of reliable
information on these provisions.
80 See, e.g., comment of Desert Terrace Healthcare
Center.
81 See Bureau of Labor Statistics, Economic News
Release, Table B-1, "Employees on nonfarm
payrolls by industry sector and selected industry
detail," May 3, 2011 (seasonally adjusted data for
March 2011) http://data.bls.gov/timeseries
LNS11300000?years_option=specific_years
&include_graphs=true&to_year=2010
&from_year=1948 (last visited June 6, 2011).
82 Comment of P & L Fire Protection, Inc.
83 Comment of OKC Tea Party.
84 Comment of Montana Records Management,
LLP.
85 Comment of Humphrey & Associates, Inc.
86 Comment of Medina Excavating, Inc.
87 Comment of Olsen Tool & Plastics, Co.
88 And as one union official writes:
Having been active in labor relations for 30 years
I can assure you that both employees and employers
are confused about their respective rights under the
NLRA. Even union officers often do not understand
their rights. Members and non-members rarely
understand their rights. Often labor management
disputes arise because one or both sides are mis-
informed about their rights. Often the employer
takes an action it truly believes is within its rights
when it is not.
Comment of Civil Service Employees Association.
89 Thus, the many comments that assert that
employees can just use Internet search engines to
find out about unions (see, e.g., comments of
Winseda Corp. Homestead Village, Inc.),
misapprehend the breadth of the rights of which the
Board seeks to apprise all employees. As stated
above, Section 7 is not merely about the right to join
or refrain from joining a labor organization, but
more broadly protects the right of employees to
engage in "concerted activities" for the purpose of
"mutual aid or protection." It is this right that is
the most misunderstood and simply not subject to
an easy Internet search by employees who may have
no idea of what terms to use, or even that such a
right might be protected at all.
90 Comment of Riverbend Community Mental
Health.
91 Comment of Farmers Cooperative Compress.
92 Printing Industries of America uses election
data to argue that the Labor Department's notice
posting rule for Federal contractors has not been
effective because the rate of elections has not
increased. It is unclear whether any meaningful
conclusion can be drawn from election data for only
Continued

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