Employee rights get support in Washington from Harkin

WASHINGTON ñ Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin (D-IA) and House Education and Workforce Committee Ranking Member George Miller (D-CA) sent a letter yesterday to the National Labor Relations Board (NLRB) in support of a proposed rule to require posting of employee rights in the workplace. The proposed rule, which would bring the National Labor Relations Act in line with other employment laws, would require employers to display a poster informing workers of their rights to organize a union without interference. As collective bargaining rights are under fire in many states, Harkin and Miller wrote to support the NLRB proposal to notify private sector workers of their legal rights.

“It is clear from the turmoil in Wisconsin that workers care deeply about their right to collective bargaining,” Harkin said. “Private sector workers care just as deeply and, for decades, have been under an even more aggressive assault by employers trying to deny them the fundamental right to a voice on the job. Too many workers fear retaliation, and frequently lack basic information about their rights under the law. The National Labor Relation Board’s proposed rule to notify employees of their rights is a common sense, modest proposal to encourage employees to make a free and informed choice about forming a union and I strongly support the proposal.”

“All too often, employees are unaware of their rights on the job. Workers’ rights in the workplace shouldn’t be hidden or take a law degree to understand,” said Miller. “The National Labor Relations Board proposal is a very modest and practical step to ensure that workers are aware of their rights and can exercise them if they so choose.”

The full text of the letter is below:

Dear Executive Secretary Heltzer:

As Chairman of the Senate Health, Education, Labor, and Pensions Committee and Ranking Member of the House Committee on Education and the Workforce, we are writing to express our strong support for the proposed rule governing notification of employee rights under the National Labor Relations Act (“NLRA” or “the Act”). The proposed rule is clearly within the powers the NLRA delegated to the National Labor Relations Board (“Board” or “NLRB”) by the NLRA. It will improve employees’ knowledge of their rights under the Act and thereby more effectively protect the exercise of those rights. And, as Congress intended under the NLRA, it will encourage the practice and procedure of collective bargaining.

I. The proposed rule is consistent with the intent of Congress to facilitate collective bargaining and empower the NLRB to take effective action to enforce employee rights.

The text of the statute could not be clearer. Congress passed the NLRA to encourage collective bargaining and vested the NLRB with the responsibility to develop effective policies to promote that goal. Thus, in considering the proposed rule, the first relevant inquiry is whether the Board’s proposed rule furthers the objective of encouraging collective bargaining, which it unquestionably does.

It is the policy of the United States, as established by the NLRA, that ‘‘encouraging the practice and procedure of collective bargaining and 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’’ will ‘‘eliminate the causes of certain substantial obstructions to the free flow of commerce’’ and ‘‘mitigate and eliminate these obstructions when they have occurred.’’ National Labor Relations Act, 29 U.S.C. 151. et seq.

In addition to explicitly encouraging collective bargaining, Congress unambiguously intended for workers to know and freely exercise their right to engage in collective activity. In the wake of the Great Depression, Congress passed the NLRA to protect the nation’s economic recovery and ensure that workers were not cut out from full participation in the economic revitalization. Senator Robert Wagner, the bill’s chief sponsor, explained the rationale for encouraging collective bargaining by stating that the “upswing in business cannot be maintained indefinitely unless there is a tremendous reduction in unemployment, a sustained rise in purchasing power, and a removal of the present industrial discontent based so largely upon a denial of legal as well as ethical rights. It is to these ends that my national labor relations bill is directed.” 2 Leg. Hist. 2284 (NLRA 1935).

The House of Representatives was similarly clear in outlining the objectives of the NLRA. The report from the House Committee on Labor on the Act explained the deficiency in the existing law, the National Industrial Recovery Act, and the need for the NLRA. The Report stated that the “result of all this non-enforcement of section 7 (a) has been to breed a widespread and growing bitterness on the part of workers, who feel, with much justification, that they have been given fair words, but betrayed by the Government in the execution of its promises…The only honest thing for the Congress to do, therefore, is to provide adequate machinery for its enforcement, which is the object of the present bill.” H.R. Rep. No. 1147 (1935), reprinted in 2 Leg. Hist. 3053-4.

In light of these important goals, informing workers of their rights under the NLRA is a sensible, practical step to encourage collective bargaining and uphold section 7 rights. The sad reality is that many employees are unaware of their rights under the Act. Numerous studies have shown that workers are unaware of the rules that govern workplace relations. See, e.g., 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) (surveying studies showing that American workers were generally uninformed of their rights under the NLRA); Ian H. Eliasoph, Know Your (Lack Of) Rights: Reexamining The Causes And Effects of Phantom Employment Rights, 12 Empl. Rts. & Employ. Pol’y J. 197, 199 (2008). Informing employees about the NLRA will educate employees about their rights, which furthers the goals of the NLRA.

The NLRA’s effectiveness can be measured in part by how closely workplace representation reflects worker preferences for such representation. It has been well documented that many currently non-union American workers would prefer to have union representation. See e.g., Freeman, Richard B, & Joel Rogers,What Workers Want.(1999 and 2006); Zogby International, Nationwide Attitudes Toward Unions, report to the Public Service Research Foundation, (February 2004). There are many explanations for why such preferences for representation are not reflected by actual union representation, but one obvious answer is that workers are uninformed about their rights under the NLRA and the mechanics of forming a union. To the extent that this disconnect between worker preferences and workplace realities is due to lack of knowledge about organizing rights and how to effectuate those preferences for union representation, posting a notice of NLRA rights would clarify these matters for employees and would instruct them in how to contact the NLRB to learn more about the process for organizing a union. In short, the posting helps effectuate the purposes of the Act; knowledge of rights is often an obvious prerequisite to freely exercising them.

Equally important, posting rights under the NLRA informs employers of their employees’ rights. The Government Accountability Office (GAO) has found that many employers are not confident they know the rules governing the workplace. GAO Report 94-138, page 56-58 (June 1994). One employer surveyed in the study reported that “[we are] concerned about the uncertainty of the specific requirements under each of the laws and that we might not be in compliance because of ignorance.” The proposed rule is a useful step for the NLRB to assist employers with compliance. Posting employee rights will prevent employers from unwittingly committing unfair labor practices, which will encourage collective bargaining and save resources for employers, employees, and the government.

Informing both employees and employers of workers’ rights to organize and collectively bargain facilitates the NLRA’s purpose of encouraging collective bargaining.

II. Congress delegated the Board the authority to require notification of employee rights under the Act.

The second relevant inquiry is whether the proposal is consistent with the Board’s rulemaking authority ñ again the answer is clearly yes.

It is well-established that the Board has the authority to engage in rulemaking under the NLRA. Section 6 grants the Board the “authority from time to time to make, amend, and rescind … such rules and regulations as may be necessary to carry out the provisions” of the Act. § 156. That rulemaking authority includes the power to elaborate on the broad provisions of the NLRA. If the Board “is to accomplish the task which Congress set for it, [it] necessarily must have authority to formulate rules to fill the interstices of broad statutory provisions.”Beth Israel Hosp. v. NLRB,437 U.S. 483, 501 (1978) (upholding the Board’s adjudicatory decision establishing solicitation rules in patient care areas of acute care facilities). Whether the Board fills those interstices through rulemaking or adjudication “lies in the first instance within the Board’s discretion.” NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974).

Indeed, courts have long exhorted the Board to utilize its rulemaking powers. See e.g., NLRB v. Wyman Gordan,394 U.S. 759, 89 S. Ct. 1426 (1969). In Wyman Gordan, despite upholding the Board’s authority to create Excelsior List requirements through the adjudicatory process, the Court encouraged the Board to utilize rulemaking, stating that the “rule-making provisions of that Act, which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application.” Id. at 764.

The Supreme Court has held that rulemaking by the Board is appropriate unless the rule contravenes the purpose of the Act or the Board is expressly excluded from engaging in rulemaking in that area. American Hospital Assoc. v NLRB, 499 U.S. 606, 111 S. Ct. 1539 (1991) (addressing the Board’s authority to promulgate a rule on hospital bargaining units, the Court held that the Board’s authority was “unquestionably sufficient to authorize the rule at issue in this case unless limited by some other provision in the Act” and “if Congress had intended to curtail in a particular area the broad rulemaking authority granted in § 6, we would have expected it to do so in language expressly describing an exception from that section or at least referring specifically to the section.”) Id. at 613.

Applying this standard, the proposed rule is unquestionably appropriate. As discussed above, the proposed rule clearly furthers the purposes of the Act ñ the relationship between the posting of rights under the NLRA and protecting the free exercise of those rights is obvious. It is equally clear that no section of the NLRA limits the Board’s authority to require posting of rights. No section of the NLRA describes an express exception from the Board’s powers under §156 or refers specifically to that section. According to the Supreme Court’s interpretation of the NLRA, that is the end of the inquiry.

Nevertheless, the Board has asked for comment on whether 29 USC §160 (c) somehow limits the Board’s authority to notify employees of their rights. The relevant portion of that section states that the Board has the authority to “issue and cause to be served on such person an order requiring such person cease and desist from such unfair labor practice, and to take affirmative action including reinstatement of employees with or without backpay, as will effectuate the purpose of the Act.” On its face, this does not conflict with the Board’s authority to notify employees of their rights. Section 160 does not expressly exempt or specifically refer to the Board’s Section 156 authority, which once again, should be the end of the inquiry.

Over time, the Board has adopted a convention that the cease and desist notice include a recitation of employees’ rights under the Act, but notably, the Board is not required to inform employees of their rights as part of the remedy. For decades, the cease and desist order either did not list employee rights under the Act or included a variation of a one or two sentence recitation that employees are free to become members of any labor organization without fear of discrimination . See e.g., Itasca Cotton Manufacturing, 79 NLRB 1442 (1948), Yellow Cab Co. 148 NLRB. N. 65 (1964), Bilye Motor Corp., 161 NLRB. NO. 93 (1966). The current language on notifying employees of their rights under the Act was not adopted until 2001. Ishikawa Gasket America, Inc., 337 NLRB 175. Even now, including a recitation of employee rights in a formal and informal settlement posting is not required by the NLRB’s Casehandling Manual.
The occasional practice of notifying employees of their rights under the NLRA as part of the cease and desist order in no way undermines the Board’s authority to engage in rulemaking. §160 (c) is plainly insufficient to limit the authority of the Board to require covered employers to notify employees of their rights under the Act.

III. Informing employees of their rights is communication between the government and the employees and does not infringe upon employers’ rights.

Employer speech rights do not curtail the Board’s authority to notify employees of their rights. More than ten other statutes already require posting of rights in the workplace. The postings are understood for what they are: communications from the government to the workers in their workplace. For example, OSHA requires that an employer post employee rights to a safe workplace and includes a monetary penalty for employers who fail to comply. In Lake Butler Apparel Co. v Sec. of Labor, an employer challenged OSHA’s authority to force an employer to post a notice and penalize an employer who fails to comply. 519 F.2d 84 (5th Cir. 1975). The court rejected the challenge, stating that:

“Lastly, Lake Butler argues that the OSHA requirement that the information sign be posted at its clothing factory violates its First Amendment rights to freedom of speech. 29 CFR s 1903.2(a). However, Lake Butler does not cite us to any cases on the issue and we are hard put to find any. The argument is seemingly nonsensical for if the government has a right to promulgate these regulations it seems obvious that they have a right to statutorily require that they be posted in a place that would be obvious to the intended beneficiaries of the statute Lake Butler’s employees. The posting of the notice does not by any stretch of the imagination reflect one way or the other on the views of the employer. It merely states what the law requires. The employer may differ with the wisdom of the law and this requirement even to the point as done here, of challenging its validity. He may as we once said “take his views to a McGahey marked grave.” NLRB v. McGahey, 5 Cir., 1956, 233 F.2d 406, 409. But the First Amendment which gives him the full right to contest validity to the bitter end cannot justify his refusal to post a notice Congress thought to be essential.”

The Court of Appeals for the District of Columbia reiterated this principle in a case challenging the basis for an Executive Order requiring federal contractors to post certain employee rights. UAW-Labor Empl. & Training Corp. v. Chao, 325 F.3d 360 (2003). There, the court rejected the contention that § 158 (c) rights either required or prohibited required posting of employee rights. The court stated that “even assuming that the §8 (c) right includes the right not to speak, an employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks.” Id. at 365.

In the end, Congress and the courts have made clear that the Board has the authority to promulgate the rule in question and that employers’ rights are not implicated by the rule. The only question is whether the NLRB’s proposed rule fulfills the Board’s duty to protect the collective bargaining rights of employees, which it obviously does.

IV. The Board has the authority to include consequences for failing to inform employees of their rights and it furthers the purpose of the Act to compel employers to comply

To ensure that employees are in fact informed of their rights, there must be consequences for failing to comply with the posting requirement. It is no secret that some employers are strongly opposed to employees exercising their bargaining rights. Such employers would likely resist informing employees of those rights or, at the very least, would not be inclined to do so voluntarily. If the requirement that employers inform employees of their rights was only advisory and there were no sanctions involved, fewer employers would post the notice and the rule would be less effective in achieving the statutory goals.

Indeed, the Board has previously held that employees must be informed of their rights in order to exercise their rights. In fact, the Board found that a union commits an unfair labor practice if it fails to inform all newly hired employees of their Beck rights (agency fee) and their General Motors rights (non-membership). Weyerhauser Paper, 320 NLRB No. 12 (1995). There, the Board held that:

“in order for all unit employees subject to a union-security provision to exercise their Beck rights meaningfully, the law requires that notice of those rights include notice that the only way in which they can do so is to exercise the right under General Motors to become nonmembers. On this basis, we affirm the judge’s finding that the Respondents violated Section 8(b)(1)(A) of the Act by failing to give the requisite notice.”

Id. at *8.

Just as it is an unfair labor practice for a union to fail to inform employees of their non-membership rights, so should it be an unfair labor practice for an employer to fail to inform employees of their right to organize. The Board’s authority to penalize non-compliance is the same in either case.

Providing meaningful sanctions for failure to comply protects the most vulnerable workers. The employees who most need to be informed of their rights are those whose employers are least likely to post employee rights unless they are compelled to do so. Furthermore, making it an unfair labor practice to fail to notify employees of their rights levels the playing field for employers who follow the law, where otherwise unscrupulous ones would seek an unfair competitive advantage in suppressing their workers’ rights.

For similar reasons, the Board has the authority to toll the six month statute of limitations if the employer does not notify employees of their rights and if the employees are not otherwise notified. Notably, even where the statute and regulation are silent on the issue of tolling, courts will read an equitable tolling provision into the statute. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir. 1977) (“The failure to post a required notice will toll the running of the limitations period, ‘at least until such time as the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under’ the Act.”); Patraker v. Council on Environment of New York City, No. 02 Civ. 7382(LAK), 2003 WL 22703522, at *2 (S.D.N.Y. Nov. 17, 2003); Veerkamp v. U.S. Security Associates, Inc., 2006 WL 2850020, at *6 (S.D. Ind. Sept. 29, 2006). If a court has the authority to read a tolling provision into a statute or regulations where none exists, surely the Board has the authority to include the tolling provision in the regulation.

The Board has the authority and the responsibility to inform employees of their rights under the NLRA and, to ensure compliance and a level playing field, there must be consequences for failing to notify employees of their rights. The purposes of the NLRA are to encourage the practice and procedure of collective bargaining and protect the free exercise of workers’ organizing rights, and Congress intended for the NLRB to effectively administer the statute. The proposed rule is a modest, common sense attempt to effectuate these purposes. For these reasons, we strongly support the proposed rule.

Respectfully submitted,

TOM HARKIN

Chairman

Senate Committee on Health, Education, Labor, and Pensions

GEORGE MILLER

Ranking Member

House Committee on Education and Workforce|