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NRCA issues comments about the proposed rules governing notification of employee rights

On Feb. 7, NRCA submitted comments to the National Labor Relations Board (NLRB) about the proposed rules governing notification of employee rights. NRCA's comments follow. NRCA members who wish to file comments with the NLRB regarding this proposal have until Feb. 22 to do so.

February 7, 2011

Lester A. Heltzer, Executive Secretary
National Labor Relations Board
1099 14th Street, NW
Washington, DC 20570

RE: RIN 3142-AA07, Proposed Rules Governing Notification of Employee Rights

Dear Mr. Heltzer:

The National Roofing Contractors Association (NRCA) wishes to submit the following comments on the National Labor Relations Board's Notice of Proposed Rulemaking published in the Federal Register on Dec. 22, 2010. The proposal, if implemented, would mandate that virtually all employers post a notice of employee rights under the National Labor Relations Act (NLRA) within the workplace. NRCA has serious concerns about the impact of this proposal on roofing contractors and opposes the rulemaking for the reasons outlined below.

Established in 1886, NRCA is one of the nation's oldest trade associations and the voice of professional roofing contractors worldwide. NRCA has approximately 4,000 contractors in all 50 states who are typically small, privately held companies, with the average member employing 45 people and attaining sales of about $4.5 million per year.

First, as indicated in the dissenting opinion included in the NPRM by Board member Brian Hayes, NRCA does not believe that the Board has the statutory authority under the law to issue such a proposal. The NLRA gives the Board the authority to correct violations of the law but does not provide authority to impose punishment for violations. Yet the proposal would establish an entirely new "unfair labor practice" for employers who fail to comply with its requirements. Given the lack of clear statutory authority, NRCA is very concerned with the precedent this proposal would set for the Board with respect to potential proposals in other areas of labor law that are similarly beyond its statutory authority and thus the intent of Congress.

Second, NRCA believes that the contents of the required posting are biased and incomplete. While the notice discusses in detail the right to form, join, or assist a union and engage in collective bargaining, it does not describe any of the consequences of exercising these rights, such as relinquishing the right of an employee to deal directly with an employer. It also does not mention the important right to object and refuse to pay union dues or fees that are used for political purposes, nor does it describe the right to decertify or leave a union. If this proposal is finalized and implemented, it should include a full discussion of employee rights under the NLRA, not just those rights selectively chosen by the Board.

Third, the electronic notice requirements are confusing and present practical concerns for employers. The proposal would require the notice to be posted electronically (in addition to physically) "such as by e-mail, posting on an intranet or internet site, and/or by other electronic means, if the employer customarily communicates with its employees by such means." While this requirement may be straightforward for some employers, it will be confusing and difficult for many others. NRCA members utilize a wide array of technologies to communicate with their employees, and it is unclear exactly what type of employer communication would trigger the electronic posting requirement. For example, many employers utilize e-mail to communicate with some of their employees, while other employees are not required to have access to e-mail in their daily work. If this proposal is finalized, this issue must be clarified.

Fourth, the Board assumes that the amount of time that an employer would have to spend to make the physical and/or electronic postings would be two hours, with a total cost of approximately $62, and thus the proposal will not have a significant economic impact on small businesses. NRCA is concerned that, while these costs alone may not seem significant, any new costs or requirements mandated by the federal government on employers must be considered in context. The current context is a tidal wave of new federal laws and regulations being imposed on employers amid extremely difficult economic conditions, particularly within the roofing and construction industries. In addition, federal agencies have a notoriously poor track record in estimating the costs of new regulations on businesses, and thus the actual cost for many employers could be considerably higher.

Finally, if the Board does move forward with this proposal, NRCA agrees that the "safe harbor" provision for federal contractors is vitally necessary. As of June, 2010, pursuant to an Executive Order issued by President Obama, federal contractors are required by the Dept. of Labor to post a notice that is nearly identical to the notice being proposed in this NPRM. If this proposal is finalized, it is critical that employers be deemed to be compliance with the law by adhering to either the NLRB requirements or the existing DOL requirements, as provided for in the NPRM.

Again, for the reasons articulated above, in particular the overriding concern that the Board does not have clear statutory authority to impose the underlying requirement on employers and the precedent this would set, NRCA urges the Board not to move forward with this proposal.

Thank you for your consideration of NRCA's views and concerns on this proposal. If you have questions or need more information about NRCA, please contact Duane Musser, NRCA's vice president of government relations, at 202-546-7584 or dmusser@nrca.net.


T. Allen Lancaster
President, Metalcrafts Inc., Savannah, GA
President, NRCA

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