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