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NATIONAL LABOR RELATIONS
BOARD
29 CFR Part 104
RIN 3142–AA07
Notification of Employee Rights Under
the National Labor Relations Act
AGENCY: National Labor Relations
Board.
ACTION: Final rule.
SUMMARY: On December 22, 2010, the
National Labor Relations Board (Board)
issued a proposed rule requiring
employers, including labor
organizations in their capacity as
employers, subject to the National Labor
Relations Act (NLRA) to post notices
informing their employees of their rights
as employees under the NLRA. This
final rule sets forth the Board’s review
of and responses to comments on the
proposal and incorporates any changes
made to the rule in response to those
comments.
The Board believes that many
employees protected by the NLRA are
unaware of their rights under the statute
and that the rule will increase
knowledge of the NLRA among
employees, in order to better enable the
exercise of rights under the statute. A
beneficial side effect may well be the
promotion of statutory compliance by
employers and unions.
The final rule establishes the size,
form, and content of the notice, and sets
forth provisions regarding the
enforcement of the rule.
DATES: This rule will be effective on
November 14, 2011.
FOR FURTHER INFORMATION CONTACT:
Lester A. Heltzer, Executive Secretary,
National Labor Relations Board, 1099
14th Street, NW., Washington, DC
20570, (202) 273–1067 (this is not a tollfree
number), 1–866–315–6572 (TTY/
TDD).
SUPPLEMENTARY INFORMATION:
I. Background on the Rulemaking
The NLRA, enacted in 1935, is the
Federal statute that regulates most
private sector labor-management
relations in the United States. 1 Section
7 of the NLRA, 29 U.S.C. 157,
guarantees that
Employees shall have the right to selforganization,
to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other
1 Labor-management relations in the railroad and
airline industries are governed by the Railway
Labor Act, 45 U.S.C. 151 et seq.
mutual aid or protection, and shall also have
the right to refrain from any or all such
activities[.]
In Section 1, 29 U.S.C. 151, Congress
explained why it was necessary for
those rights to be protected:
The denial by some employers of the right
of employees to organize and the refusal by
some employers to accept the procedure of
collective bargaining lead to strikes and other
forms of industrial strife or unrest, which
have the intent or the necessary effect of
burdening or obstructing commerce[.] * * *
* * * * *
Experience has proved that protection by
law of the right of employees to organize and
bargain collectively safeguards commerce
from injury, impairment, or interruption, and
promotes the flow of commerce by removing
certain recognized sources of industrial strife
and unrest, by encouraging practices
fundamental to the friendly adjustment of
industrial disputes arising out of differences
as to wages, hours, or other working
conditions, and by restoring equality of
bargaining power between employers and
employees.
* * * * *
It is declared to be the policy of the United
States to eliminate the causes of certain
substantial obstructions to the free flow of
commerce and to mitigate and eliminate
these obstructions when they have occurred
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.
Thus, Congress plainly stated that, in its
judgment, protecting the rights of
employees to form and join unions and
to engage in collective bargaining would
benefit not only the employees
themselves, but the nation as a whole.
The Board was established to ensure
that employers and, later, unions
respect the exercise of employees’ rights
under the NLRA. 2
For employees to fully exercise their
NLRA rights, however, they must know
that those rights exist and that the Board
protects those rights. As the Board
explained in its Notice of Proposed
Rulemaking (NPRM), 75 FR 80410, it
has reason to think that most do not. 3
2 The original NLRA did not include restrictions
on the actions of unions; those were added in the
Labor-Management Relations (Taft-Hartley) Act of
1947, 29 U.S.C. 141 et seq., Title I.
3 The Board cited three law review articles in
which the authors contended that American
workers are largely unaware of their NLRA rights,
that the Board can take action to vindicate those
rights, and that this lack of knowledge stands in the
way of employees’ effectively exercising their
rights. 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); Charles J. Morris,
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The Board suggested a number of
reasons why such a knowledge gap
could exist—the low percentage of
employees who are represented by
unions, and thus lack an important
source of information about NLRA
rights; the increasing proportion of
immigrants in the work force, who are
unlikely to be familiar with their
workplace rights; and lack of
information about labor law and labor
relations on the part of high school
students who are about to enter the
labor force. 4
Of greatest concern to the Board,
however, is the fact that, except in very
limited circumstances, no one is
required to inform employees of their
NLRA rights. 5 The Board is almost
unique among agencies and
departments administering major
‘‘Renaissance at the NLRB—Opportunity and
Prospect for Non-Legislative Procedural Reform at
the Labor Board,’’ 23 Stetson L. Rev. 101, 107
(1993); Morris, ‘‘NLRB Protection in the Nonunion
Workplace: A Glimpse at a General Theory of
Section 7 Conduct,’’ 137 U. Pa. L. Rev. 1673, 1675–
1676 (1989). 75 FR at 80411.
4 Id.
5 The Board requires that employees be notified
of their NLRA rights in only the following narrow
circumstances: (1) For the three working days
before a Board-conducted representation election,
the employer is required to post a notice of election
including a brief description of employee rights; see
29 CFR 103.20. (2) When an employer or a union
has been found to have violated employee rights
under the NLRA, it is required to post a notice
containing a brief summary of those rights. (3)
Before a union may seek to obligate newly hired
nonmember employees to pay dues and fees under
a union-security clause, it must inform them of
their right under NLRB v. General Motors, 373 U.S.
734 (1963), and Communications Workers v. Beck,
487 U.S. 735 (1988), to be or remain nonmembers
and that nonmembers have the right to object to
paying for union activities unrelated to the union’s
duties as the bargaining representative and to obtain
a reduction in dues and fees of such activities.
California Saw & Knife Works, 320 NLRB 224, 233
(1995), enfd. sub nom. Machinists v. NLRB, 133
F.3d 1012 (7th Cir. 1998), cert. denied sub nom.
Strang v. NLRB, 525 U.S. 813 (1998). The same
notice must also be given to union members if they
did not receive it when they entered the bargaining
unit. Paperworkers Local 1033 (Weyerhaeuser Paper
Co.), 320 NLRB 349, 350 (1995), rev’d. on other
grounds sub nom. Buzenius v. NLRB, 124 F.3d 788
(6th Cir. 1997), vacated sub nom. United
Paperworkers Intern. Union v. Buzenius, 525 U.S.
979 (1998). (4) When an employer voluntarily
recognizes a union, the Board has required that the
employer must post a notice informing employees:
(i) That the employer recognized the union on the
basis of evidence that it was designated by a
majority of the unit employees; (ii) the date of
recognition; (iii) that all employees, including those
who previously signed cards for the recognized
union, have the right to be represented by a labor
organization of their choice, or no union at all; (iv)
that within 45 days of the date of the notice a
decertification or rival petition, supported by 30
percent or more of the unit employees, may be filed
with the Board and will be processed to an election;
and, (v) that if no petition is filed within 45 days,
the recognition will not be subject to challenge for
a reasonable period to allow the employer and
union to negotiate a collective-bargaining
agreement. Dana Corp., 351 NLRB 434 (2007).
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Federal labor and employment laws in
not requiring employers routinely to
post notices at their workplaces
informing employees of their statutory
rights. 6 Given this common practice of
workplace notice-posting, it is
reasonable for the Board to infer that a
posting requirement will increase
employees’ awareness of their rights
under the NLRA. 7 Further support for
that position is President Obama’s
recent Executive Order 13496, issued on
January 30, 2009, which stressed the
need for employees to be informed of
their NLRA rights. Executive Order
13496 requires Federal contractors and
subcontractors to include in their
Government contracts specific
provisions requiring them to post
notices of employees’ NLRA rights. On
May 20, 2010, the Department of Labor
issued a Final Rule implementing the
order effective June 21, 2010. 75 FR
28368, 29 CFR part 471.
After due consideration, the Board
has decided to require that employees of
all employers subject to the NLRA be
informed of their NLRA rights.
Informing employees of their statutory
rights is central to advancing the
NLRA’s promise of ‘‘full freedom of
association, self-organization, and
designation of representatives of their
own choosing.’’ NLRA Section 1, 29
U.S.C. 151. It is fundamental to
employees’ exercise of their rights that
the employees know both their basic
rights and where they can go to seek
help in understanding those rights.
Notice of the right of self-organization,
to form, join, or assist labor
organizations, to bargain collectively, to
engage in other concerted activities, and
to refrain from such activities, and of
the Board’s role in protecting those
statutory rights is necessary to effectuate
the provisions of the NLRA.
The Board believes that the workplace
itself is the most appropriate place for
communicating with employees about
their basic statutory rights as employees.
Cf. Eastex, Inc. v. NLRB, 437 U.S. 556,
574 (1978) (‘‘[T]he plant is a particularly
appropriate place for the distribution of
[NLRA] material.’’).
Accordingly, and pursuant to its
rulemaking authority under Section 6 of
the NLRA, the Board proposed a new
rule requiring all employers subject to
the NLRA to post a copy of a notice
advising employees of their rights under
6 See, e.g., Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e–10(a); Age Discrimination in
Employment Act, 29 U.S.C. 627; Family and
Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair
Labor Standards Act, 29 CFR 516.4 (implementing
29 U.S.C. 211). 75 FR 80411.
7 As set forth in the NPRM, two petitions were
filed to address this anomaly. 75 FR 80411.
the NLRA and providing information
pertaining to the enforcement of those
rights. 75 FR 80411. For the reasons
discussed more fully below, the Board
tentatively determined that the content
of the notice should be the same as that
of the notice required under the
Department of Labor’s notice posting
rule, 29 CFR part 471. Id. at 80412. Also,
as discussed at length below, the Board
proposed that failure to post the notice
would be found to be an unfair labor
practice—i.e., to interfere with, restrain,
or coerce employees in the exercise of
their NLRA rights, in violation of
Section 8(a)(1) of the NLRA. Id. at
80414. The Board also proposed that
failure to post the notice could lead to
tolling of the 6-month statute of
limitations for filing unfair labor
practice charges, and that knowing and
willful failure to post the notice could
be considered as evidence of unlawful
motive in unfair labor practice cases. Id.
The Board explained that the burden of
compliance would be minimal—the
notices would be made available at no
charge by the Board (both electronically
and in hard copy), and employers
would only be required to post the
notices in places where they
customarily post notices to employees;
the rule would contain no reporting or
recordkeeping requirements. Id. at
80412. Finally, the Board expressed its
position that it was not required to
prepare an initial regulatory flexibility
analysis of the proposed rule under the
Regulatory Flexibility Act, 5 U.S.C. 601
et seq., and that the notice posting
requirement was not subject to the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Id. at 80415–80416.
The Board invited comments on its
legal authority to issue the rule, the
content of the notice, the requirements
for posting the notice, the proposed
enforcement scheme, the definitions of
terms in the proposed rule, and on its
positions concerning the Regulatory
Flexibility Act and the Paperwork
Reduction Act. The Board stated that
comments would be accepted for 60
days following the publication of the
NPRM in the Federal Register, or until
February 22, 2011. The Board received
6,560 comments by February 22.
However, many late-filed comments
were also submitted, and the Board
decided to accept all comments that it
received on or before March 23. 8
8 March 23, 2011 was the date that the Board
downloaded all of the electronic and (pdf. versions
of) hard copy comments it had received from
http://www.regulations.gov and subsequently
uploaded into a text analytics tool for coding and
review.
A few commenters submitted their comments in
both electronic and hard copy form. Because all
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In all, 7,034 comments were received
from employers, employees, unions,
employer organizations, worker
assistance organizations, and other
concerned organizations and
individuals, including two members of
Congress. The majority of comments, as
well as Board Member Hayes’ dissent,
oppose the rule or aspects of it; many
opposing comments contain suggestions
for improvement in the event the Board
issues a final rule. Many comments,
however, support the rule; a few of
those suggest changes to clarify or
strengthen the rule. The Board wishes to
express its appreciation to all those who
took the time to submit thoughtful and
helpful comments and suggestions
concerning the proposed rule. 9
After careful consideration of the
comments received, the Board has
decided to issue a final rule that is
similar to that proposed in the NPRM,
but with some changes suggested by
commenters. The most significant
change in the final rule is the deletion
of the requirement that employers
distribute the notice via email, voice
mail, text messaging or related
electronic communications if they
customarily communicate with their
employees in that manner. Other
significant changes include
clarifications of the employee notice
detailing employee rights protected by
the NLRA and unlawful conduct on the
part of unions; clarification of the rule’s
requirements for posting notices in
foreign languages; allowing employers
to post notices in black and white as
well as in color; and exemption of the
U.S. Postal Service from coverage of the
rule. The Board’s responses to the
comments, and the changes in the rule
and in the wording of the required
notice of employee rights occasioned by
the comments, are explained below. (In
his dissent, Board Member Hayes raises
a number of points that are also made
in some of the comments. The Board’s
responses to those comments should be
understood as responding to the dissent
as well.) 10
comments received are included in the numbers
cited in text above, those numbers overstate
somewhat the number of individuals, organizations,
etc. that submitted comments.
9 Many comments charge that the Board is issuing
the rule for political reasons, to encourage and
spread unionism, to discourage employers and
employees from engaging in direct communication
and problem solving, to drive up union
membership in order to retain agency staff, and
even to ‘‘line [its] pockets.’’ The Board responds
that its reasons for issuing the rule are set forth in
this preamble.
10 The Board majority’s reasoning stands on its
own. By its silence, the majority does not adopt any
characterization made by the dissent of the
majority’s rationale or motives.
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II. Authority
Section 6 of the NLRA, 29 U.S.C. 156,
provides that ‘‘The Board shall have
authority from time to time to make,
amend, and rescind, in the manner
prescribed by the Administrative
Procedure Act [5 U.S.C. 553], such rules
and regulations as may be necessary to
carry out the provisions of this Act.’’ As
discussed in detail below, the Board
interprets Section 6 as authorizing the
rule.
A. The Board’s Section 6 Rulemaking
Authority
Numerous comments dispute the
Board’s statutory authority to enact the
proposed rule. Many note the fact that
the Board’s rulemaking is constrained
by Congressional intent as evidenced in
its enabling statute. For instance, the
American Trucking Association quotes a
Ninth Circuit case explaining that
Section 6 ‘‘does not authorize the Board
to promulgate rules and regulations
which have the effect of enlarging its
authority beyond the scope intended by
Congress,’’ 11 and similarly, the Motor &
Equipment Manufacturers Association
asserts, ‘‘A regulation cannot stand if it
is contrary to the statute.’’ 12 The Board
agrees that it may not exercise its
rulemaking authority in a way contrary
to that intended by Congress, but for the
reasons discussed below it also does not
believe that it has done so in this rule.
Several comments assert that because
NLRA Section 6 is written in general,
rather than specific, terms, the Board is
not empowered to enact the proposed
rule. For example, Associated Builders
and Contractors argues that ‘‘the lack of
express statutory language under
Section 6 of the NLRA to require the
posting of a notice of any kind ‘is a
strong indicator, if not dispositive, that
the Board lacks the authority to impose
such a requirement * * *.’ ’’ 13 And the
Heritage Foundation likewise argues
that the Board’s reliance upon its
general Section 6 rulemaking authority
does not suffice to meet the
Administrative Procedure Act’s
requirement that the NPRM must
11 Gen. Eng’g, Inc. v. NLRB, 341 F.2d 367, 374
(1965).
12 Citing United States v. O’Hagan, 521 U.S. 642,
673 (1997). However, the Supreme Court actually
held there that an agency’s interpretation of its
enabling statute must be given ‘‘controlling weight
unless it is arbitrary, capricious, or manifestly
contrary to the statute.’’ (quoting Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
844 (1984)). There, the Court upheld the rule and
found it was not arbitrary, capricious, or manifestly
contrary to the statute.
13 Quoting Member Hayes’ dissent, 75 FR 80415.
‘‘reference the legal authority under
which the rule is proposed.’’ 14
The Board believes that these
comments are in error because the
courts’ construction of other statutes’
general rulemaking authority, as well as
Section 6 in particular, fully support its
reading of this statutory provision. In
fact, earlier this year, the Supreme Court
issued a decision in Mayo Foundation
for Medical Education and Research v.
United States 15 (discussed more fully
below), unanimously reaffirming the
principle that a general grant of
rulemaking authority fully suffices to
confer legislative (or binding)
rulemaking authority upon an agency.
Even prior to Mayo, a long line of both
non-NLRA and NLRA cases supported
reading Section 6 in the manner
suggested by the Board. Over forty years
ago, in Thorpe v. Housing Authority, 16
the Supreme Court found that the
expansive grant of rulemaking authority
in Section 8 of the Housing Act was
sufficient to grant legislative rulemaking
power to the Department of Housing
and Urban Development. The Court
further noted that ‘‘[s]uch broad rulemaking
powers have been granted to
numerous other federal administrative
bodies in substantially the same
language.’’ 17 A few years later, in
Mourning v. Family Publication
Services, 18 the Court reaffirmed its
stance in Thorpe:
Where the empowering provision of a
statute states simply that the agency may
‘make * * * such rules and regulations as
may be necessary to carry out the provisions
of this Act,’ we have held that the validity
of a regulation promulgated thereunder will
be sustained so long as it is ‘reasonably
related to the purposes of the enabling
legislation.’ 19
Following the Supreme Court’s lead,
key circuit decisions then extended the
14 See 5 USC 553(b)(2). For this conclusion, the
Heritage Foundation cites Global Van Lines, Inc., v.
ICC, 714 F.2d 1290, 1297–98 (5th Cir. 1983). But
Global Van Lines did not find that a general
statement of authority can never meet the APA’s
requirements to specify the legal authority for the
rule. Instead, the Fifth Circuit held that that portion
of the APA is violated when an agency chooses to
rely on additional statutory provisions in support
of its rule for the first time on appeal, and those
grounds do not appear elsewhere in the
administrative record. See id. at 1298–99. Here, in
contrast, the grounds for the Board’s rule are clearly
laid out in subsection B, Statutory Authority,
below.
15 131 S.Ct. 704, 713–14 (2011).
16 393 U.S. 268 (1969).
17 Id. at 277 n. 28 (citations omitted). The
rulemaking grant there at issue provided that HUD
may, ‘‘from time to time * * * make, amend, and
rescind such rules and regulations as may be
necessary to carry out the provisions of this Act,’’
id. at 277, quite similar to Section 6 of the NLRA.
18 411 U.S. 356 (1973).
19 Id. at 369 (quoting Thorpe, 393 U.S. at 280–81).
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notion that broad grants of rulemaking
authority conveyed legislative
rulemaking power. 20 Although the
Board had historically chosen to make
policy by adjudications, the Supreme
Court, consistent with the non-NLRA
case law, used a pair of Board
enforcement cases to unanimously
emphasize the existence of the Board’s
legislative rulemaking authority, NLRB
v. Wyman-Gordon Co. 21 and NLRB v.
Bell Aerospace. 22
In 1991, after the Board enacted a rule
involving health care units, the
Supreme Court unanimously upheld
that rule in American Hospital
Association v. NLRB. 23 The Supreme
Court found that that the general grant
of rulemaking authority contained in
Section 6 of the Act ‘‘was
unquestionably sufficient to authorize
the rule at issue in this case unless
limited by some other provision in the
Act.’’ 24 As in AHA, there is no such
limitation here on the Board’s authority
to enact the proposed Rule, as explained
further below. As Senator Tom Harkin
and Representative George Miller 25
emphasized in their comment, the
Supreme Court in AHA examined ‘‘the
structure and the policy of the NLRA,’’
in order to conclude:
As a matter of statutory drafting, 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. 26
Thus, the Court could not have been
clearer that unless the Board is
‘‘expressly’’ limited in some manner,
Section 6 empowers the Board to make
‘‘such rules and regulations as may be
necessary to carry out the provisions of
this Act.’’ This point was underscored
20 Nat’l Ass’n. of Pharm. Mfrs. v. FTC, 637 F.2d
877, 880 (2d Cir. 1981) (‘‘this generous construction
of agency rulemaking authority has become firmly
entrenched’’); Nat’l Petroleum Refiners Ass’n v.
FTC, 482 F.2d 672, 686 (D.C. Cir. 1973) (‘‘plain,
expansive language’’ of the rulemaking grant at
issue, together with the ‘‘broad, undisputed
policies’’ meant to be furthered by Congress’s
enactment of the Federal Trade Commission Act of
1914, sufficed to grant the FTC substantive
rulemaking authority).
21 394 U.S. 759, 764 (1969) (plurality opinion of
Fortas, J., joined by Warren, C.J., Stewart, J., and
White, J.), 770 (Black, J., Marshall, J., and Brennan,
J), 777, 779 (Douglas, J.), 783 n. 2 (Harlan, J.).
22 416 U.S. 267, 295 (1974) (majority opinion of
Powell, J., and dissenting opinion of White, J. (and
three other justices)).
23 499 U.S. 606 (1991) (AHA).
24 Id. at 609–10 (emphasis added).
25 (Hereafter, Harkin and Miller.) Senator Harkin
is the Chairman of the Senate Committee on Health,
Education, Labor, and Pensions. Representative
Miller is Ranking Member on the House Committee
on Education and the Workforce.
26 Id. at 613 (emphasis added).
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in a Wagner Act-era Senate hearing, as
cited by Americans for Limited
Government (ALG), in which it was
acknowledged that the language of
Section 6 indeed grants ‘‘broad powers’’
to the Board. 27
And in January of this year, a
unanimous Supreme Court, in Mayo
Foundation for Medical Education and
Research v. United States, affirmed this
key principle that a broad grant of
statutory rulemaking authority conveys
authority to adopt legislative rules. 28
Mayo concerned in part the question of
how much deference a Treasury
Department tax regulation should
receive. In Mayo, an amicus argued that
the Treasury Department’s
interpretation should receive less
deference because it was issued under a
general grant of rulemaking authority, as
opposed to an interpretation issued
under a specific grant of authority. 29
The Court responded by first explaining
its earlier holding in U.S. v. Mead, that
Chevron deference is appropriate ‘‘when
it appears that Congress delegated
authority to the agency generally to
make rules carrying the force of law,
and that the agency interpretation
claiming deference was promulgated in
the exercise of that authority.’’ 30 Then,
in significant part, the Court observed:
Our inquiry in that regard does not turn on
whether Congress’s delegation of authority
was general or specific.
* * * * *
The Department issued the full-time
employee rule pursuant to the explicit
authorization to ‘‘prescribe all needful rules
and regulations for the enforcement’’ of the
Internal Revenue Code. 26 U.S.C. 7805(a). We
have found such ‘‘express congressional
authorizations to engage in the process of
rulemaking’’ to be ‘‘a very good indicator of
delegation meriting Chevron treatment.’’ 31
And so, all nine members of the
Supreme Court agreed on the following
key principle: an express, albeit general,
grant of rulemaking authority is fully
sufficient for an agency to receive
Chevron deference for its rulemaking. It
follows that a broad grant of rulemaking
authority will suffice for the agency to
engage in legislative rulemaking in the
first place. Thus, the Supreme Court’s
27 Statement of Donald A. Callahan, U.S. Senate
Committee on Education and Labor, March 29,
1935, Legislative History of the National Labor
Relations Act, U.S. Government Printing Office,
1949, p. 2002.
28 131 S. Ct. 704, 713–14 (2011).
29 Id. at 713.
30 Id. (quoting United States v. Mead, 533 U.S.
218, 226–27 (2001)); see also Chevron, 467 U.S. at
842–43 (announcing two-part framework for
determining whether courts should grant deference
to agency interpretations of enabling statutes).
31 Mayo, 131 S. Ct. at 713–14 (emphasis added
and citations omitted).
rulings continue to fully support a broad
construction of Section 6.
Disputing this conclusion, ALG
asserts that Section 6 was intended to be
used ‘‘primarily’’ for procedural
rulemaking, and cites a Senate report
from the Wagner Act’s legislative
history. That Senate report explains:
‘‘[i]n no case do the rules have the force
of law in the sense that criminal
penalties or fines accrue for their
violation, and it seems sufficient that
the rules prescribed must be ‘necessary
to carry out the provisions’ of the
act.’’ 32 The Board disagrees. The cited
language merely proclaims the obvious,
that no criminal penalties or fines
accrue for violating the Board’s rules.
However, laws such as the NLRA that
do not impose criminal penalties or
fines for their violation can also have
the ‘‘force of law’’ (which is perhaps
why the Senate report used the limiting
phrase ‘‘in the sense of’’). The Supreme
Court has previously recognized that
final Agency orders under Sections 10
(e) and (f) of the Act, despite their nonself
enforcing nature, have ‘‘the force
and effect of law.’’ 33 So too, do the
Board’s rules have the force and effect
of law, as held by the Supreme Court in
AHA. 34
Several comments discuss whether
Board Rule 103.20, which mandates the
posting of an election notice in a
workplace three working days prior to a
representation election, should be
considered analogous to the proposed
rule. The United Food and Commercial
Workers International Union (UFCW)
comments that the election rule is, like
the proposed rule, only minimally
burdensome and further noted that it
has never been challenged. 35 ALG
disagrees that the election rule should
be considered analogous here, because
although in the election context a notice
posting is the most feasible means to
inform employees about an upcoming
election that is occurring at a specific
32 See Comparison of S. 2926 (73d Congress) and
S. 1958 (74th Congress) 24 (Comm. Print 1935),
reprinted in 1 Legislative History of the National
Labor Relations Act, 1935, (1949) at 1349.
33 NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
153–54 (1975) (ordering disclosure of such Agency
opinions under the FOIA, and quoting legislative
history of the FOIA to that effect, H.R. Rep. No.
1497, p. 7, U.S. Code Cong. & Admin. News, 1966,
p. 2424).
34 499 U.S. at 609–10. But even if one were to
construe the report in the way advocated by the
comment, such reports themselves do not have the
force and effect of law, see Lincoln v. Vigil, 508 U.S.
182, 192 (1993); AHA, 499 U.S. at 616, and thus at
best are only potential evidence of legislative intent.
35 However, it is incorrect that the rule has never
been challenged; it has been challenged and
upheld. See Pannier Corp. v. NLRB, 120 F.3d 603,
606–07 (6th Cir. 1997) (rejecting an as-applied
challenge to Rule 103.20).
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place and time, that is not the case in
the NLRA rights context, in which
employees can just search the Internet
to find out more information. The Board
agrees with the UFCW that posting a
notice is a minimally burdensome way
to ensure that employees receive certain
information, although obviously, the
proposed notice will reach many more
employers over a much longer period of
time than do election notices. And
ALG’s acknowledgment that a notice
posting in the workplace is in fact
sometimes the most feasible means to
inform employees of important
information supports the Board’s belief,
explained below, that workplace notice
posting is a more efficient way of
informing employees of their NLRA
rights than relying on information
available on the Internet.
A few comments argue that the Board
is a law enforcement agency only, and
should not be engaging in rulemaking
for that reason. One comment asserts
that ‘‘Congress did not intend to
‘‘empower the NLRB to be a rulemaking
body, but rather an investigatory/
enforcement agent of the NLRA.’’ 36 The
Board responds that by enacting Section
6, Congress plainly and explicitly
intended to, and did, ‘‘empower the
NLRB to be a rulemaking body.’’ And,
as shown above, AHA conclusively
found that the Board is empowered to
use its rulemaking powers, as the Court
had previously indicated in Wyman-
Gordon and Bell Aerospace. 37
A joint comment submitted by
Douglas Holtz-Eakin and Sam Batkins
argues against the Board’s assertion of
Section 6 authority here by asserting
that ‘‘the Supreme Court has
circumscribed NLRB rulemaking in the
past: ‘The deference owed to an expert
tribunal cannot be allowed to slip into
a judicial inertia which results in the
unauthorized assumption by an agency
of major policy decisions properly made
by Congress.’ ’’ However, that comment
neglects to provide the citation for that
quotation, American Ship Building Co.
v. NLRB, 38 which was not a rulemaking
case but an adjudication. In any event,
the Board does not agree that this rule
presumes to make a major policy
decision properly made by Congress
alone. As explained in subsection B,
36 Comment of Manufacturers’ Association of
South Central Pennsylvania.
37 In National Petroleum Refiners Ass’n v. FTC,
482 F.2d 672 (D.C. Cir. 1973), the court rejected the
argument that the FTC’s prosecutorial functions
rendered it unsuitable for issuing rules. By way of
example, it noted that the NLRB is similar to the
FTC in its methods of adjudication and
enforcement, but the Supreme Court had repeatedly
encouraged the Board to utilize its rulemaking
powers. Id. at 684.
38 380 U.S. 300, 318 (1965).
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Statutory Authority, below, the Board
believes that it has been Congressionally
authorized to make this regulatory
decision in the interests of carrying out
the provisions of the Act.
Many comments argue that the Board
should heed the use of the word
‘‘necessary’’ in Section 6. For instance,
the Portland Cement Association
comments that Section 6 requires the
Board to demonstrate that: (1) The
specific rule being proposed is, in fact,
necessary, and (2) the adoption of the
proposed rule will carry out one or more
specific provisions of the Act. 39 The
Board believes, for the reasons
expressed in subsection C, Factual
Support, below, that the requisite
showing of necessity has been made.
And, as explained below, the adoption
of the proposed rule is consistent with
Section 1 and will help effectuate
Sections 7, 8, 9 and 10 of the NLRA.
The Board, however, disagrees with
the Motor & Equipment Manufacturers
Association’s assertion based upon the
case of West Virginia State Board of
Education v. Barnette 40 that the Board
needs to show ‘‘a grave and immediate
danger’’ before enacting a rule. First,
that case held that that very rigorous
standard of review is required only
where a First Amendment freedom is
alleged to have been infringed. The
Court further noted that where the First
Amendment is not implicated, the
government may regulate an area so
long as it has a ‘‘rational basis’’ for
doing so. As explained in subsection B,
Statutory Authority, below, this rule
infringes upon no First Amendment
interests, and consequently, the rule
should be judged on a standard similar
to the ‘‘rational basis’’ test laid out in
Barnette. It was in fact just such a
deferential standard which the Supreme
Court used to examine the Board’s
health care rule in AHA. There, the
Court found that even if it read Section
9 to find any ambiguity, it still would
have deferred to the Board’s ‘‘reasonable
interpretation of the statutory text,’’ and
found the Board authorized under
Sections 6 and 9 to enact the health care
bargaining unit rule at issue. 41 No
‘‘grave and immediate danger’’ was
found to be required prior to the Board
enacting that rule. This ruling was also
consistent with the Supreme Court’s
earlier holdings in Thorpe and
Mourning, in which regulations
promulgated under broadly phrased
grants of authority needed to be only
39 See also comment of Americans for Limited
Government, citing to AFL–CIO v. Chao, 409 F.3d
377, 391 (D.C. Cir. 2005) for the same principle.
40 319 U.S. 624, 639 (1943).
41 499 U.S. at 614.
‘‘reasonably related to the purposes of
the enabling legislation.’’ 42 For the
reasons shown below, that standard is
more than met in the present rule.
B. The Board’s Statutory Authority To
Issue This Rule
The National Labor Relations Act
does not directly address an employer’s
obligation to post a notice of its
employees’ rights arising under the Act
or the consequences an employer may
face for failing to do so. However, as
stated, NLRA Section 6 empowers the
Board to promulgate legislative rules ‘‘as
may be necessary to carry out the
provisions’’ of the Act. 29 U.S.C. 156. A
determination of necessity under
Section 6 made by the Board, as
administrator of the NLRA, is entitled to
deference. See Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 86 (2002).
Furthermore, even in the absence of
express rulemaking authority, ‘‘the
power of an administrative agency to
administer a congressionally created
* * * program necessarily requires the
formulation of policy and the making of
rules to fill any gap left, implicitly or
explicitly, by Congress.’’ Morton v. Ruiz,
415 U.S. 199, 231 (1974). Under the
well-known test articulated by the
Supreme Court in Chevron U.S.A. Inc. v.
Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), courts will
defer to the Board’s reasonable
interpretation of a gap left by Congress
in the NLRA.
An examination of the provisions of
the whole law demonstrate how the
notice-posting rule is a legitimate
exercise of both legislative rulemaking
authority under Section 6 and implied
gap-filling authority under Chevron, 467
U.S. at 843. Section 1 of the NLRA
explains that Congress deliberately
chose the means of ‘‘encouraging the
practice and procedure of collective
bargaining’’ and ‘‘protecting the exercise
of workers of full freedom of
association, self-organization, and
designation of representatives of their
own choosing’’ in order to combat the
substantial burdens on commerce
caused by certain employer and labor
union practices as well as by the
inherent ‘‘inequality of bargaining
power between employees * * * and
employers.’’ 29 U.S.C. 151. 43 Section 7
42 Mourning, 411 U.S. at 369 (quoting Thorpe, 393
U.S. at 280–81).
43 These regulations are entirely compatible with
the national labor policy, as expressed in Section
1, ‘‘to eliminate the causes of certain substantial
obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when
they have occurred.’’ 29 U.S.C. 151 (fifth
paragraph). As explained below, the Board’s ability
to ‘‘eliminate’’ the causes of labor strife and
depressed wage rates, ‘‘which have the intent or
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therefore sets forth the core rights of
employees ‘‘to self-organization’’; ‘‘to
form, join, or assist labor organizations’’;
‘‘to bargain collectively’’; and ‘‘to engage
in other concerted activities’’; as well as
the right ‘‘to refrain from any or all such
activities.’’ Id. § 157. Section 8 defines
and prohibits union and employer
‘‘unfair labor practices’’ that infringe on
employees’ Section 7 rights, id. § 158,
and Section 10 authorizes the Board to
adjudicate unfair labor practice claims,
id. § 160, subject to the NLRA’s
procedural six-month statute of
limitations, see Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 395 n.11
(1982). Finally, Section 9 authorizes the
Board to conduct representation
elections and issue certifications. 29
U.S.C. 159.
Notably, the NLRA does not give the
Board or its General Counsel roving
investigatory powers. Although the
Board is specifically empowered to
‘‘prevent’’ unfair labor practices, id.
§ 160(a), ‘‘[t]he Board may not act until
an unfair labor practice charge is filed
* * * alleging a violation of the Act.’’
2 The Developing Labor Law 2683 (John
E. Higgins, Jr. ed., 5th ed. 2006). In
addition, certification ‘‘procedures are
set in motion with the filing of a
representation petition.’’ Id. at 2662. In
both instances, the initiating document
is filed by a private party. Id. at 2683
(citing 29 CFR 102.9); id. at 2662–63
(citing 29 U.S.C. 159(c)(1)(A), (B), and
(e)(1)).
Enforcement of the NLRA and
effectuation of Congress’s national labor
policy therefore depend on the
existence of outside actors who are not
only aware of their rights but also know
where they may seek to vindicate them
within appropriate timeframes. The
Department of Labor made a similar
finding in an analogous rulemaking
proceeding under the Fair Labor
Standards Act: ‘‘effective enforcement of
the [FLSA] depends to a great extent
upon knowledge on the part of covered
employees of the provisions of the act
and the applicability of such provisions
to them, and a greater degree of
compliance with the act has been
effected in situations where employees
are aware of their rights under the law.’’
14 FR 7516, 7516 (Dec. 16, 1949). Given
the direct relationship between
employees’ timely awareness of their
rights under the NLRA and the Board’s
necessary effect of burdening or obstructing
commerce,’’ id., depends on workers’ knowledge of
their rights and the protections provided by the
NLRB. The Board therefore rejects the argument of
the Manufacturer’s Association of South Central
Pennsylvania that both the notice-posting rule and
the Board’s general assertion of rulemaking
authority are inconsistent with Section 1.
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ability to protect and enforce those
rights, this rule is ‘‘necessary’’ for
purposes of Section 6.
Aside from the rule’s manifest
necessity, the notice posting
requirement fills a Chevron-type gap in
the NLRA’s statutory scheme. Thus, as
discussed, the purpose of Section 1, as
implemented in Sections 7 and 8, is to
encourage the free exercise and
enforcement of the Act’s provisions, and
fulfillment of that purpose depends on
the private initiative of employees and
employers to commence Board
representation proceedings pursuant to
Section 9 and Board unfair labor
practice proceedings pursuant to
Section 10. The effective working of the
NLRA’s administrative machinery
therefore presupposes that workers and
their employers have knowledge of the
rights afforded by the statute and the
means for their timely enforcement. The
statute, however, has no provision with
respect to making that knowledge
available, a subject about which the
statute is completely silent.
This statutory gap has always been
present but was of less significance in
earlier years when the density of union
organization was greater, since, as is
widely recognized, unions have been a
traditional source of information about
the NLRA’s provisions. See Lechmere,
Inc. v. NLRB, 502 U.S. 527, 531–32
(1992) (reaffirming that the Section 7
rights of employees interested in union
organization depend to some extent on
their having access to unions); Harlan
Fuel Co., 8 N.L.R.B. 25, 32 (1938)
(holding that the rights guaranteed to
employees by Section 7 include ‘‘full
freedom to receive aid, advice and
information from others concerning
[their self-organization] rights’’); cf.
Chamber of Commerce of the United
States v. Brown, 554 U.S. 60, 68 (2008)
(observing that Section 7 ‘‘implies an
underlying right to receive
information’’). Moreover, as rates of
unionization have declined, employees
are less likely to have experience with
collective bargaining or to be in contact
with other employees who have had
such experience. The statutory gap is
thus now important to the Board’s
administration of the NLRA and its role
in enforcing employees’ rights.
As the Supreme Court has observed,
The responsibility to adapt the Act to
changing patterns of industrial life is
entrusted to the Board. * * * It is the
province of the Board, not the courts, to
determine whether or not the ‘‘need’’ [for a
Board rule] exists in light of changing
industrial practices and the Board’s
cumulative experience in dealing with labormanagement
relations. For the Board has the
‘‘special function of applying the general
provisions of the Act to the complexities of
industrial life,’’ and its special competence in
this field is the justification for the deference
accorded its determination.
NLRB v. J. Weingarten, Inc., 420 U.S.
251, 266 (1975) (citations omitted).
Consistent with this understanding of
the Board’s role, the notice-posting
regulations represent an attempt to
‘‘adapt the Act’’ in light of recent
realities and ‘‘the Board’s cumulative
experience.’’ Id. The rule is wholly
consistent with the aims of the NLRA,
and the ‘‘need’’ for it now is heightened
given the ‘‘changing patterns of
industrial life.’’ Id.
For all these reasons, this rule is
entitled to deference regardless of how
it is characterized because it is
‘‘reasonably related to the purposes of
the enabling legislation,’’ Thorpe, 393
U.S. at 280–81, and constitutes a
‘‘ ‘reasonable interpretation’ of the
enacted text,’’ Mayo, 131 S. Ct. at 714
(quoting Chevron, 467 U.S. at 844).
In response to the NPRM, a number of
arguments have been made challenging
the Board’s statutory authority to
promulgate the notice posting rule. As
explained below, the Board does not
find merit in any of these arguments.
1. Limitations on the Board’s
Rulemaking Authority Implied by
Sections 9 and 10 of the Act
Of the comments that address the
Board’s statutory authority to issue this
rule, many express agreement with the
dissenting views of Member Hayes that
were published in the NPRM. Member
Hayes criticized the basis for the rule
and questioned the Board’s statutory
authority to promulgate and enforce it.
See 75 FR 80415. He specifically
referred to Section 10 as an obstacle to
the proposed rule, because it
‘‘indicate[d] to [him] that the Board
clearly lacks the authority to order
affirmative notice-posting action in the
absence of an unfair labor practice
charge filed by an outside party.’’ Id.
Many comments submitted in
response to the NPRM, such as those of
the Texas Association for Home Care &
Hospice and those of the Independent
Bakers Association, interpret Section 10
to prohibit the Board from ordering any
affirmative act that does not address the
consequences of an unfair labor
practice. Although this proposition may
be true when the Board acts through
adjudication—the administrative
function to which Section 10 directly
applies—it does not perforce apply
when the Board specifies affirmative
requirements via rulemaking under
Section 6. See Clifton v. FEC, 114 F.3d
1309, 1312 (1st Cir. 1997) (‘‘Agencies
are often allowed through rulemaking to
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regulate beyond the express substantive
directives of the statute, so long as the
statute is not contradicted.’’) (citing
Mourning). If it did, then the Board’s
longstanding rule mandating that
employers post an election notice three
days before a representation election
would be subject to challenge on that
ground. See 29 CFR 103.20; see also
Pannier Corp., Graphics Div. v. NLRB,
120 F.3d 603, 606–07 (6th Cir. 1997)
(rejecting an as-applied challenge to
§ 103.20). Furthermore, under American
Hospital Association, the Board’s
exercise of its broad rulemaking
authority under Section 6 is presumed
to be authorized unless elsewhere in the
Act there is ‘‘language expressly
describing an exception from that
section or at least referring specifically
to the section.’’ 499 U.S. at 613. Section
10 does not refer to the Board’s Section
6 authority.
Some comments, such as those of the
Council on Labor Law Equality
(COLLE), contend that the Board has no
authority whatsoever to administer the
NLRA unless a representation petition
or unfair labor practice charge has been
filed under Sections 9 or 10,
respectively. The Board declines to
adopt such a narrow view of its own
authority. Certainly, the Board cannot
issue certifications or unfair labor
practice orders via rulemaking
proceedings. But that is not what this
rule does. As explained above, by
promulgating the notice-posting rule,
the Board is taking a modest step that
is ‘‘necessary to carry out the
provisions’’ of the Act, 29 U.S.C. 156,
and that also fills a statutory gap left by
Congress in the NLRA.
Moreover, the argument advanced by
COLLE and others fails to appreciate
that the Board’s authority to administer
the Act is not strictly limited to those
means specifically set forth in the
NLRA. Rather, as the Supreme Court has
recognized, the NLRA impliedly
authorizes the Board to take appropriate
measures ‘‘to prevent frustration of the
purposes of the Act.’’ NLRB v. Nash-
Finch Co., 404 U.S. 138, 142 (1971). By
way of example, the Supreme Court
pointed out that its decisions had
recognized the Board’s implied
authority to petition for writs of
prohibition against premature
invocation of the review jurisdiction of
the courts of appeals, see In re NLRB,
304 U.S. 486, 496 (1938); to institute
contempt proceedings for violation of
enforced Board orders, see
Amalgamated Util. Workers v. Con.
Edison Co., 309 U.S. 261 (1940); and to
file claims in bankruptcy for Boardawarded
backpay, see Nathanson v.
NLRB, 344 U.S. 25 (1952). Relying on
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that precedent in Nash-Finch Co., the
Supreme Court concluded that the
Board also had implied authority ‘‘to
enjoin state action where [the Board’s]
federal power preempts the field.’’ 404
U.S. at 144. Like these judicially
recognized powers, the notice-posting
requirement that is the subject of this
rulemaking has not been specifically
provided for by Congress. But the cited
cases demonstrate that Congress need
not expressly list a power for the Board
to legitimately exercise it. Indeed, the
notice-posting requirement is not even
an implied power of the Board in the
same sense as those previously
mentioned. Rather, it is the product of
the Board’s exercise of express
rulemaking authority and inherent gapfilling
authority, both of which have
been delegated to the Board by
Congress.
2. The First Amendment and Section
8(c) of the NLRA
A handful of commenters argue that
the notice-posting requirement violates
the First Amendment to the
Constitution, Section 8(c) of the NLRA,
or both. For example, the Center on
National Labor Policy, Inc. maintains
that ‘‘compelling an employer to post its
property with a Notice that asserts the
statutory ‘rights’ and employer
obligations, runs counter to
constitutional views long protected by
the Supreme Court.’’ The Center also
argues that the ‘‘proposed poster would
impede the employer’s statutory right to
express itself on its own property.’’
Along these same lines, the National
Right to Work Legal Defense
Foundation, Inc. and others on whose
behalf it writes contend that ‘‘the
Board’s proposal for forced speech
favoring unionization directly conflicts
with the First Amendment and
longstanding federal labor policy under
Section 8(c) that employers and unions
should be able to choose themselves
what to say about unionization.’’ These
concerns were echoed by the National
Association of Wholesaler-Distributors.
In addition, two attorneys affiliated with
Pilchak Cohen & Tice, P.C., which they
describe as ‘‘a management-side labor
and employment law firm,’’ argue that
the notice-posting requirement
‘‘tramples upon employers’ Free Speech
rights by regulating the content of
information that employers are required
to tell employees and by compelling
them to post the Notice containing prounion
NLRA rights, when it is almost
assuredly not the employers’ prerogative
to do so.’’ The Independent Association
of Bakers goes further and characterizes
the regulation as an unconstitutional
‘‘gag order’’ that ‘‘prohibits the
employer from telling the truth about
the impact a union might pose to his
business.’’ The Board rejects these
arguments.
As an initial matter, requiring a notice
of employee rights to be posted does not
violate the First Amendment, which
protects the freedom of speech. Indeed,
this rule does not involve employer
speech at all. The government, not the
employer, will produce and supply
posters informing employees of their
legal rights. The government has sole
responsibility for the content of those
posters, and the poster explicitly states
that it is an ‘‘official Government
Notice’’; nothing in the poster is
attributed to the employer. In fact, an
employer has no obligation beyond
putting up this government poster.
These same considerations were present
in Lake Butler Apparel Co. v. Secretary
of Labor, 519 F.2d 84, 89 (5th Cir. 1975),
where the Fifth Circuit rejected as
‘‘nonsensical’’ an employer’s First
Amendment challenge to the
Occupational Safety and Health Act
requirement that it post an ‘‘information
sign’’ similar to the one at issue here. As
in Lake Butler, an employer subject to
the Board’s rule retains the right to
‘‘differ with the wisdom of * * * this
requirement even to the point * * * of
challenging its validity. * * * 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 * * * thought to be essential.’’
Id.; see also Stockwell Mfg. Co. v. Usery,
536 F.2d 1306, 1309–10 (10th Cir. 1976)
(dicta) (rejecting a constitutional
challenge to a requirement that an
employer post a copy of an OSHA
citation).
But even if the Board’s notice-posting
requirement is construed to compel
employer speech, the Supreme Court
has recognized that governments have
‘‘substantial leeway in determining
appropriate information disclosure
requirements for business
corporations.’’ Pac. Gas & Elec. Co. v.
Pub. Utils. Comm’n, 475 U.S. 1, 15 n.12
(1985). This discretion is particularly
wide when the government requires
information disclosures relevant to the
employment relationship. Thus, as the
D.C. Circuit has observed, ‘‘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.’’
UAW-Labor Employment & Training
Corp. v. Chao, 325 F.3d 360, 365 (D.C.
Cir. 2003) (UAW v. Chao) (citing Lake
Butler, 519 F.2d at 89). Accordingly, the
Board’s notice-posting requirement is
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not susceptible to a First Amendment
challenge. 44
The Board is equally satisfied that the
rule does not violate NLRA Section 8(c),
29 U.S.C. 158(c), which creates a safe
harbor for noncoercive speech in the
unfair labor practice area. Specifically,
Section 8(c) shields from unfair labor
practice liability ‘‘[t]he expressing of
any views, argument or opinion,’’
provided that ‘‘such expression contains
no threat of reprisal or force or promise
of benefit.’’ Id. (emphasis added). A
government poster containing accurate,
factual information about employees’
legal rights ‘‘merely states what the law
requires.’’ Lake Butler, 519 F.2d at 89.
For that reason, ‘‘[t]he posting of the
notice does not by any stretch of the
imagination reflect one way or the other
on the views of the employer.’’ Id. 45
44 The decision of the intermediate state court in
Smith v. Fair Employment & Housing Commission,
30 Cal. Rptr. 2d 395 (Cal. Ct. App. 1994), rev’d on
other grounds, 913 P.2d 909 (Cal. 1996), lends no
support to arguments challenging these regulations
on First Amendment grounds. There, the California
Court of Appeal held that a landlord’s right to
freedom of speech was ‘‘implicate[d],’’ id. at 401–
02, by a state fair housing agency’s remedial order
requiring her to sign, post, and distribute notices
‘‘setting out the provisions of [the fair housing
statute], the outcome of th[e] case, and the
statement that [she] practices equal housing
opportunity.’’ 913 P.2d at 914. The Smith case is
not persuasive here because the notice at issue in
Smith would not merely have set forth the rights
of prospective buyers or renters but also would
have contained a signed statement from the
landlord which would have given the false
appearance that she agreed with the state’s fair
housing ‘‘concepts and rules,’’ despite her religious
beliefs to the contrary. 30 Cal. Rptr. 2d at 401. That
feature of the case has no parallel here. Here, by
contrast, employers are not required to sign the
informational notice, and as noted, nothing in the
poster is attributed to them. The Board further notes
that the Smith decision is not authoritative because
it was superseded by the California Supreme
Court’s grant of review in that case. See 913 P.2d
at 916 n.*.
45 The Employers Association of New Jersey is
therefore off the mark when it argues that the
notice-posting requirement is preempted under the
principles of Lodge 76, International Ass’n of
Machinists & Aerospace Workers v. Wisconsin
Employment Relations Commission, 427 U.S. 132
(1976), as an attempt to regulate employer speech
‘‘about unionization and collective bargaining.’’ As
explained above, the employer’s choice whether to
express its own views, arguments, or opinions is
wholly unaffected by a requirement to post a
government-provided notice summarizing what the
law requires. Indeed, consistent with both
Machinists and the policy of Section 8(c) ‘‘‘to
encourage free debate on issues dividing labor and
management,’’’ Brown, 554 U.S. at 67 (quoting Linn
v. United Plant Guard Workers, Local 114, 383 U.S.
53, 62 (1966)), employers remain free under this
rule—as they have in the past—to express
noncoercive views regarding the exercise of these
rights as well as others. See, e.g., United Techs.
Corp., 274 N.L.R.B. 609, 609, 618–20, 624–26
(1985), enforced sub nom. NLRB v. Pratt & Whitney
Air Craft Div.v., United Techs. Corp., 789 F.2d 121
(2d Cir. 1986); Warrensburg Bd. & Paper Corp., 143
N.L.R.B. 398, 398–99 (1963), enforced, 340 F.2d 920
(2d Cir. 1965). For this reason, the Board finds it
unnecessary to adopt the proposal made by the
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But even if the new rule is understood
to compel employer speech, Section 8(c)
‘‘‘merely implements the First
Amendment.’’’ Brown, 554 U.S. at 67
(quoting NLRB v. Gissel Packing Co.,
395 U.S. 575, 617 (1969)). Thus, if a
First Amendment challenge to the rule
must fail, so too must a challenge based
on Section 8(c). Such was the holding
of the D.C. Circuit in UAW v. Chao.
There, the court was presented with a
preemption argument, grounded in
Section 8(c), challenging a Federal
procurement regulation that required
contractors to post a notice informing
their employees of certain NLRA rights.
The D.C. Circuit interpreted Section 8(c)
as coextensive with the scope of free
speech rights protected by the First
Amendment and upheld the
procurement regulation in light of wellestablished
free speech jurisprudence in
the labor context. See 325 F.3d at 365.
3. Lack of Contemporaneity With the
Enactment of the NLRA
Several comments attack the noticeposting
regulation for its lack of
contemporaneity with the enactment of
the NLRA. For example, many
comments criticize the regulation by
noting that ‘‘this is a new rule
interpreted into the Act 75 years after its
passage.’’ The Board rejects these
contentions for two reasons.
First, the Supreme Court has
repeatedly ‘‘instructed that ‘neither
antiquity nor contemporaneity with [a]
statute is a condition of [a regulation’s]
validity.’’’ Mayo, 131 S. Ct. at 712
(alterations in original) (quoting Smiley
v. Citibank (S.D.), N.A., 517 U.S. 735,
740 (1996)); see also Smiley, 517 U.S. at
740 (deferring to a regulation ‘‘issued
more than 100 years after the
enactment’’ of the statutory provision
that the regulation construed). Second,
the argument fails to consider that much
has changed since 1935, the year the
NLRA was enacted. Unionization rates
are one example. As pointed out in the
NPRM and as confirmed by comments
submitted by the Association of
Corporate Counsel’s Employment and
Labor Law Committee, unionization
rates increased during the early years of
the Act, peaking at around 35 percent of
the workforce in the mid-1950s. But
since then, the share of the workforce
represented by labor unions has
Pilchak attorneys to revise the rule to specify that
employers ‘‘may post a notice of equal dignity
which advises employees of * * * additional rights
and realities.’’ Alternatively, the Pilchak attorneys
propose that the Board amend the rule to permit
employers to ‘‘alter the Poster and include
additional rights.’’ Adopting this suggestion would
compromise the integrity of the notice as a
communication from the government. It, too, is
therefore rejected.
plummeted to approximately 8 percent.
As a result, fewer employees today have
direct, everyday access to an important
source of information regarding NLRA
rights and the Board’s ability to enforce
those rights.
As noted above, ‘‘[t]he responsibility
to adapt the Act to changing patterns of
industrial life is entrusted to the Board.’’
J. Weingarten, Inc., 420 U.S. at 266. It
would therefore be an abdication of that
responsibility for the Board to decline to
adopt this rule simply because of its
recent vintage. Accordingly, the Board
finds such arguments unpersuasive.
4. Comparison With Other Statutes That
Contain Notice-Posting Requirements
Many comments note, as the Board
did in the NPRM, that several other
labor and employment statutes enacted
by Congress contain express noticeposting
provisions. See 75 FR 80411
(listing such statutes). Though a few
such comments, such as those of the
International Brotherhood of Teamsters,
applaud the Board for ‘‘fill[ing] this
glaring and indefensible gap,’’ the bulk
of these comments instead argue that
the lack of a parallel statutory provision
in the NLRA negates the existence of
Board authority to issue this rule.
The Board notes that inferences
gleaned from side-by-side comparisons
to other statutes have diminished force
when an agency uses its gap-filling
authority under Chevron. There are
many possible reasons why Congress
did not include an express noticeposting
provision in the NLRA.
‘‘Perhaps that body consciously desired
the [agency] to strike the balance at this
level * * *; perhaps it simply did not
consider the question at this level; and
perhaps Congress was unable to forge a
coalition on either side of the question
* * *.’’ Chevron, 467 U.S. at 865. But,
‘‘[f]or judicial purposes, it matters not
which of these things occurred.’’ Id.
Indeed, the central premise behind
Chevron and its progeny is that agencies
should be allowed reasonable latitude to
fill gaps arising from congressional
silence or ambiguity. Accordingly, ‘‘the
contrast between Congress’s mandate in
one context with its silence in another
suggests not a prohibition but simply a
decision not to mandate any solution in
the second context, i.e., to leave the
question to agency discretion.’’ Cheney
R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C.
Cir. 1990) (labeling the expressio unius
est exclusio alterius canon ‘‘an
especially feeble helper’’ in Chevron
cases).
Arguments contrasting the NLRA with
other federal enactments that contain
notice-posting requirements might have
some persuasive force if there were
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evidence that Congress had considered
and rejected inserting such a
requirement into the Act. However,
nothing in the legislative history of the
Act so indicates. Indeed, there is not the
slightest hint that the omission of a
notice-posting requirement was the
product of legislative compromise and
therefore implies congressional rejection
of the idea. Cf. Ind. Prot. & Advocacy
Servs. v. Ind. Family & Soc. Servs.
Admin., 603 F.3d 365, 384–85 (7th Cir.
2010) (en banc) (Posner, J., concurring)
(inferring a private right of action from
statutory silence in a case where such
silence was not the product of
‘‘legislative compromise’’). For these
reasons, the Board rejects the Motor and
Equipment Manufacturers Association’s
unsupported suggestion that there has
been an affirmative ‘‘legislative
determination not to include a posting
requirement by employers that have not
violated the Act.’’
A number of comments point out that
Congress included a general noticeposting
provision in the Railway Labor
Act (RLA), which predates the NLRA.
Given the relative proximity of these
two enactments, some comments regard
the absence of a notice-posting
provision in the NLRA as strong
evidence that Congress did not intend
for there to be one. For reasons just
explained, the Board does not find a
side-by-side comparison with the RLA
availing. In addition, the Board notes
that although the NLRA and the RLA
share several common features, the
NLRA was not perfectly modeled after
the RLA. See Bhd. of R.R. Trainmen v.
Chi. River & Ind. R.R. Co., 353 U.S. 30,
31 n.2 (1957) (‘‘The relationship of labor
and management in the railroad
industry has developed on a pattern
different from other industries. The
fundamental premises and principles of
the Railway Labor Act are not the same
as those which form the basis of the
National Labor Relations Act * * *.’’).
Finally, the Board notes that other
federal departments and agencies have
not understood Congress’s failure to
include an express provision containing
a notice-posting requirement in a federal
labor or employment statute as a bar to
such a regulatory requirement. Like the
NLRA, the Fair Labor Standards Act
(FLSA), which was passed in 1938, does
not contain a provision requiring
employers to post a notice of pertinent
employee rights. Yet the Department of
Labor adopted a notice requirement now
codified at 29 CFR 516.4. Furthermore,
the Board is unaware of any challenge
to the Labor Department’s authority to
promulgate or enforce the FLSA notice
requirement, which has been in effect
for over 60 years. See 14 FR 7516 (Dec.
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16, 1949), promulgating 29 CFR 516.18,
the predecessor to 29 CFR 516.4.
5. The Teamsters 357 Decision
In response to the NPRM, the U.S.
Chamber of Commerce submitted a
comment that questions ‘‘how the
proposal can be said to be consistent
with’’ the Supreme Court’s decision in
Local 357, International Brotherhood of
Teamsters v. NLRB, 365 U.S. 667 (1961).
Specifically, the Chamber accuses the
Board of ignoring the Court’s
admonition in that case warning that
‘‘[w]here * * * Congress has aimed its
sanctions only at specific discriminatory
practices, the Board cannot go farther
and establish a broader, more pervasive
regulatory scheme.’’ Id. at 675. The
Chamber reads this statement out of
context.
To understand why the Board
disagrees with the Chamber’s view,
further explanation of Teamsters 357 is
necessary. In that case, the Supreme
Court rejected the Board’s conclusion
that a union had committed an unfair
labor practice by operating an exclusive
hiring hall pursuant to an agreement
that contained a nondiscrimination
clause but not three additional clauses
that the Board had previously declared
in its Mountain Pacific decision to be
necessary to prevent ‘‘ ‘unlawful
encouragement of union membership.’ ’’
Id. at 671 (quoting Mountain Pacific
Chapter, 119 NLRB 883, 897 (1958)).
The Court first noted that Congress had
examined the operation of hiring halls
and had decided not to ban them. Id. at
673–74. Next, the Court observed that
NLRA Section 8(a)(3) ‘‘ ‘does not outlaw
all encouragement or discouragement of
membership in labor organizations; only
such as is accomplished by
discrimination is prohibited.’ ’’ Id. at
674–75 (emphasis added) (quoting
Radio Officers’ Union v. NLRB, 347 U.S.
17, 42–43 (1954)). Since the hiring hall
agreement at issue in Teamsters 357
‘‘specifically provide[d] that there will
be no discrimination * * * because of
the presence or absence of union
membership,’’ the Court determined
that the Board was attempting to protect
against nondiscriminatory
encouragement of union membership.
Id. at 675. This was impermissible
because ‘‘[w]here * * * Congress has
aimed its sanctions only at specific
discriminatory practices, the Board
cannot go farther and establish a
broader, more pervasive regulatory
scheme.’’ Id. at 676.
Properly understood, Teamsters 357
does not preclude the Board from
issuing the notice posting rule. The
union had not committed an unfair
labor practice in that case because its
hiring hall agreement did not encourage
or discourage union membership by
‘‘discrimination.’’ See id. at 674–75. By
faulting the union for not including in
its agreement clauses that the Board’s
Mountain Pacific rule had declared
necessary to prevent ‘‘ ‘unlawful
encouragement of union membership,’ ’’
id. at 671 (quoting Mountain Pacific
Chapter, 119 NLRB at 897), the Board
had attempted to regulate hiring halls in
a manner that was facially inconsistent
with the discrimination requirement
embedded in NLRA Section 8(a)(3) and
(b)(2). Accordingly, the Chamber makes
too much of the Court’s statement
prohibiting the Board from
‘‘establish[ing] a broader, more
pervasive regulatory scheme’’ when
‘‘specific discriminatory practices’’ have
already been outlawed. Id. at 676. By
that, the Court simply meant to remind
the Board that it may not
administratively amend Section 8(a)(3)
and (b)(2) to prohibit nondiscriminatory
activity that might be viewed as
undesirable because those statutory
sections are clearly aimed only at
‘‘specific discriminatory practices.’’
Id. 46
This rulemaking does not involve
those provisions of the NLRA that
Teamsters 357 addressed. Accordingly,
the Board does not view that case as
controlling the outcome of this
proceeding.
6. Miscellaneous Matters
The Center on National Labor Policy,
Inc., argues that the Board ‘‘must be
mindful of the Supreme Court’s
admonition in Lechmere[, Inc.] v. NLRB,
502 U.S. 527, 534 (1992), that an
employer possesses First Amendment
rights to its property.’’ The Board
disagrees that the property rights
discussed in Lechmere emanate from
the First Amendment, see Thunder
Basin Coal Co. v. Reich, 510 U.S. 200,
217 n.21 (1994) (‘‘The right of
employers to exclude union organizers
from their private property emanates
from state common law * * *.’’), and to
the extent that the Center’s reference to
the First Amendment asserts a conflict
between these regulations and
employers’ right to free speech, that
argument is rejected for reasons
explained above. After quoting
extensively from Lechmere, the Center
next contends that ‘‘if a union has no
access to company property to
communicate with employees, neither
46 To the extent that the Board espoused a
contrary view of Teamsters 357 in a prior
rulemaking proceeding, that view is abandoned. See
Union Dues Regulation, 57 FR 43635, 43637–38
(Sept. 22, 1992), withdrawn, 61 FR 11167 (Mar. 19,
1996).
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does the Board without Section 10(c)
authority.’’ The Board rejects this
argument because it fails to recognize
the important substantive difference
between the conduct at issue in
Lechmere, which involved ‘‘ ‘trespassory
organizational activity’ ’’ by
nonemployees on the employer’s
grounds, id. at 535 (quoting Sears,
Roebuck & Co. v. San Diego Dist.
Council of Carpenters, 436 U.S. 180, 205
(1978)), and the regulations here which
involve nothing more than the
employer’s responsibility to post an
official notice of legal rights.
The Portland Cement Association
(PCA) comments that the Board’s failure
to place the three law review articles
that the Board cited to the NPRM 47 in
the administrative docket is arbitrary
and capricious. Although the Board
provided the legal citations for these
articles, PCA believes that it should not
have to pay an electronic legal reporting
service to access the material. The Board
has placed these articles in the hard
copy docket, but has not uploaded these
articles to the electronic docket at
http://www.regulations.gov, because
such an action could violate copyright
laws. 48
Finally, one comment contends that
requiring employers to set aside wall
space for posting the notices violates the
Takings Clause of the Fifth Amendment
to the U.S. Constitution. The comment
cites no authority for this proposition,
which would seem to invalidate the
notice-posting requirements under all
other Federal and state workplace
statutes. Accordingly, the Board rejects
this contention.
In conclusion, the Board believe that
it has fully demonstrated that it
possesses sufficient statutory authority
to enact the final rule, and therefore that
it is not ‘‘in excess of statutory
jurisdiction’’ or ‘‘short of statutory
right’’ within the meaning of the
Administrative Procedure Act, Section
706(2)(C), 5 U.S.C. 706(2)(C).
C. Factual Support for the Rule
As stated above, the Board found that
the notice posting rule is needed
because it believes that many employees
are unaware of their NLRA rights and
therefore cannot effectively exercise
those rights. The Board based this
finding on several factors: the
comparatively small percentage of
private sector employees who are
represented by unions and thus have
ready access to information about the
47 See NPRM, 75 FR 80411 and fn. 3 above.
48 The Board has also placed the other non-case
materials cited to in this final rule into the hard
copy docket.
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NLRA; the high percentage of
immigrants in the labor force, who are
likely to be unfamiliar with workplace
rights in the United States; studies
indicating that employees and high
school students about to enter the work
force are generally uninformed about
labor law; and the absence of a
requirement that, except in very limited
circumstances, employers or anyone
else inform employees about their
NLRA rights. 75 FR 80411.
A large number of comments contend
that the Board failed to demonstrate the
necessity of the notice posting rule.
They challenge each of the premises
(except the last) underlying the Board’s
belief that employees are generally
unaware of their NLRA rights.
Many comments assert that, contrary
to the Board’s belief, the right to join a
union is widely known and understood
by employees. For example:
—I believe the majority of employees know
about labor unions and how to form a
union, and this poster is unnecessary. 49
—[I]t is hard to imagine that there are many
in the US who do not know that they can
try to join a union.
—The fact of the matter is that if a group of
employees are upset enough with their
current management that they feel they
need union representation, they already
know what they need to do as a recourse.
And if they do not immediately know how
to respond, there are plenty of resources for
them. 50
—We, the employees, know the unions exist,
* * * If the employees want to know about
unions, they should research it themselves.
It is not as though the information is not
readily available.
Some posit that comparatively few
private sector employees are
represented by unions not because
employees do not know that they can
join unions, but because they have
consciously rejected union
representation for any number of
reasons (e.g., they do not believe that
unions can help them; they do not want
to pay union dues; they deem union
representation unnecessary in light of
other workplace protection statutes). For
example:
—Is it not just as probable that people clearly
understand unions, and they have decided
they want no part of them?
—Labor unions charge approximately 1.3%
of pre-tax earnings for monthly dues. Many
workers, especially those who lost their
good paying jobs during this recession and
have found new jobs at $10.00-$11.00 per
hour wages, need the dues money
themselves, in order to support their
families.
49 Comment of the Employers Association.
50 Comment of Malt-O-Meal Company (Malt-O-
Meal).
—Membership is down because so many of
the good things unions fought for a long
time ago have been legislated, at either the
Federal or State level, and so the need for
unions has declined. 51
—[M]ost employees are very aware of their
rights to unionize and many employees
choose not to do so because of the rights
they already have under our federal and
state laws.
—In fact, one could say that the NLRA and
other employment laws have succeeded to
the degree that unions are NOT necessary
in today’s work environment. 52
A few comments question the Board’s
belief that immigrant workers are
unfamiliar with their workplace
rights. 53 Several comments argue that
the NLRA has been in effect for nearly
76 years, which is sufficient time for
employees to learn about its
provisions. 54
A number of comments argue that the
studies cited in the NPRM are from the
late 1980s and early 1990s and are
therefore out of date 55 (and also, some
say, poorly supported). 56 Moreover,
those studies, whatever their value
when published, predate the wide use
of the internet. Now there are many
online sources of information
concerning unions and union
organizing, including the Board’s own
Web site. According to these comments,
it should not be necessary to require
employers to post notices of NLRA
rights because employees who are
interested in learning about unions can
quickly and easily find such
information online. 57 One comment,
like some others, argues that ‘‘If it is so
important that employees know their
rights under the NLRB it should be the
government or union whose
responsibility it is to inform them.’’ 58
Two comments suggest that the Board
conduct a mass media informational
campaign to that end, and one notes that
the Board has in fact recently increased
51 Comment of Tecton Products.
52 Comment of Printing and Imaging Association
of MidAmerica (Printing and Imaging Ass’n).
53 See, e.g., comment of the Printing and Imaging
Ass’n.
54 See, e.g., comment of Coalition for a
Democratic Workplace.
55 See, e.g., comments of Printing Industries of
America and the Portland Cement Association.
56 See, e.g., comments of Cass County Electric
Cooperative and Pilchak Cohen & Tice, P.C.
57 As one person states, ‘‘The internet has long
ago replaced lunch room bulletin board postings as
the means by which employees learn of and
exercise their rights.’’
58 Such comments appear to misunderstand that
by this rule, the Board is indeed seeking to inform
employees of the provisions of the NLRA, using the
most accessible venues to reach them, their
workplaces.
Other comments question why this rule does not
mandate notice posting by governmental employers.
The NLRA does not cover such employers. See
Section 2(2), 29 U.S.C. 152(2).
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its public information efforts. 59 One
comment urges the Board to conduct a
study to ascertain current employees’
level of NLRA knowledge before
imposing a notice posting requirement.
In contrast, as discussed in more
detail below, numerous comments from
individuals, union organizers, attorneys
representing unions, and worker
assistance organizations agree with the
Board that most employees are
unfamiliar with their NLRA rights.
Immigrant rights organizations state that
immigrant workers largely do not know
about their rights.
After careful consideration of the
comments on both sides of this issue,
the Board believes that many employees
are unaware of their NLRA rights and
that a notice posting requirement is a
reasonable means of promoting greater
knowledge among employees. To the
extent that employees’ general level of
knowledge is uncertain, the Board
believes that the potential benefit of a
notice posting requirement outweighs
the modest cost to employers. Certainly,
the Board has been presented with no
evidence persuasively demonstrating
that knowledge of NLRA rights is
widespread among employees.
The comments asserting that the right
to join a union is widely known cite
little, if any, support for that assertion.
By contrast, many of the comments
contending that employees are
unfamiliar with their NLRA rights base
their statements on personal experience
or on extensive experience representing
or otherwise assisting employees. Many
individual workers, commenting on the
rule, indicate their personal experiences
with the lack of NLRA knowledge and
concurrent strong support for the rule.
For example:
—Even though most of my coworkers and
supervisors were highly intelligent people,
it is my experience that most workers are
almost totally unaware of their rights under
the NLRA.
—Knowing that there is a federal agency out
there that will protect the rights of working
people to organize is essential to the
exercise of those rights.
—I had no idea that I had the right to join
a union, and was often told by my
employer that I could not do so. * * * I
think employers should be required to post
notices so that all employees may make an
informed decision about their rights to join
a union. 60
—Workers have rights and they have the
right to know them. 61
—[T]here is a lot of ignorance among young
workers and veteran workers alike with
regard to knowledge of their right to
59 Comment of Fisher & Phillips, LLP.
60 Comment of Member, Local 150, Operating
Engineers.
61 Comment of Organizer, IBEW.
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organize. This is not a cure for employer
intimidation, * * * but it is a step in the
right direction.
—As an employee at will, I was not aware
of my rights to form a union or any rights
that I may have had under the NLRA. 62
—I worked in the construction materials
testing industry for about eight years.
During that time I had no idea I had the
right to join a union. 63
—As a working class citizen, I am well aware
of just how rare it is for my fellow workers
to know their rights. For that reason, this
is a rule that is extremely overdue. * * *.
A sampling of comments from labor
attorneys, workers’ organizations, and
labor organizations is consistent with
these employees’ comments:
—It is my experience that upwards of 95%
of employees have no idea what their
rights are with respect to labor unions. 64
—In fact, I have had many employees over
the years tell me that their employers have
told them that they do not allow unions at
their workplace. 65
—Workers today do not know what their
rights are under the NLRA. As a Union
organizer with more than 20 years of
experience, without exception, every
worker I encounter thinks that it is
perfectly legal for their employer to fire
them simply for saying the word union, or
even to speak with other employees at
work about general working conditions.
The protections afforded workers to engage
in protected concerted activity around
workplace issues is unknown to the
majority of workers today. 66
—It is the experience of [Service Employees
International Union (SEIU) Local 615] that
many employees are woefully unaware of
their rights under the NLRA and that that
lack of knowledge makes employees
vulnerable when they desire to address
their wages and working conditions with
the employers. 67
—I have participated in hundreds of
organizing campaigns involving thousands
of employees. In my experience, most
people had no idea what their rights were
to organize or join unions. 68
Some unions also assert that even
unionized employees often do not have
a clear understanding of the NLRA. One
union staff representative writes that
‘‘there seems to be a disconnect, most of
our membership does not know a thing
about NLRA.’’ 69 Another union steward
comments similarly:
I saw how union members were often
unaware of their rights unless the union
62 Comment of International Staff Representative,
Steelworkers.
63 Comment of Member, Local 150, Operating
Engineers.
64 Comment of Organizer, Local 150, Operating
Engineers.
65 Comment of Strokoff and Cowden.
66 Comment of Organizer, Teamsters, Local 117.
67 Comment of SEIU Local 615.
68 Comment of Financial Secretary, Local 150,
Operating Engineers.
69 Comment of Staff Representative, Steelworkers.
specifically did outreach and member
education, or unless the employee ran into a
problem and came to a steward for
assistance. * * *
Notice to employees, however, could
provide a starting point for those employees
to try to assert rights that they currently have
on paper but often do not have in practice.
Several immigrant workers’
organizations comment on the difficulty
that this population has in
understanding their rights and accessing
the proper help when needed. 70 These
organizations note that laws in the
immigrants’ home countries may be
quite different from those of the United
States, and the high barrier that lack of
fluency in English creates in making
these persons aware of their rights
under the NLRA. 71 These organizations
also contend that because guestworkers
in particular can work only for the
employer that requested their visa, they
are extremely vulnerable to labor
violations, and that these employers
routinely misrepresent the existence of
NLRA rights. 72 The National Day
Laborers Organizing Network claims
that ‘‘most workers are not aware of
their right to organize.’’
One immigrant construction worker,
commenting favorably on the proposed
rule, explains that she learned English
after coming to the United States from
Poland: ‘‘While working as a testing
technician, I had no idea I had the right
to join a union.’’ She writes:
I think a government written notice posted
in the workplace would be a critical source
of information for employees who want to
join a union. Especially in this industry
where many people like myself are foreign
born, there is a language barrier that adds to
the difficulty in understanding our legal
rights. I take government posted notices
seriously and believe other people do as
well. 73
Significantly, the Board received
numerous comments opposing the rule
precisely because the commenters
believe that the notice will increase the
level of knowledge about the NLRA on
the part of employees. Specifically, they
predict that the rule will lead to
increased unionization and create
alleged adverse effects on employers
and the economy generally. For
example, Baker and Daniels LLP
comments that as more employees
become aware of their NLRA rights, they
will file more unfair labor practice
70 See e.g., comments of National Immigration
Law Center and Latino Justice.
71 See, e.g., comment of Friends of Farmworkers,
Inc.
72 Comment of Alliance of Guestworkers for
Dignity.
73 Comment of Instructor, Apprenticeship and
Skill Improvement Program, Local 150, Operating
Engineers.
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charges and elect unions to serve as
their collective-bargaining
representatives. But fear that employees
may exercise their statutory rights is not
a valid reason for not informing them of
their rights.
Moreover, the NLRA protects the right
to join a union and to refrain from doing
so and the notice so states. In addition,
the NLRA confers and protects other
rights besides the right to join or refrain
from joining unions. Section 7 provides
that employees have the right ‘‘to engage
in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection[.]’’ Such
protected concerted activities include
concertedly complaining or petitioning
to management concerning their terms
and conditions of employment; 74
concertedly petitioning government
concerning matters of mutual interest in
the workplace; 75 and concertedly
refusing to work under poor working
conditions. 76 Few if any of the
comments contending that employees
know about their NLRA rights assert
that employees are aware of the right to
engage in such protected concerted
activities in the nonunion setting. By
contrast, as shown above, many
comments favoring the rule report that
nonunion employees are especially
unlikely to be aware of their NLRA
rights.
Although some comments contend
that the articles cited by the Board in
support of its belief that employees are
largely unaware of the NLRA rights are
old and inadequately supported, 77 they
cite no more recent or better supported
studies to the contrary. In addition, the
percentage of the private sector
workforce represented by unions has
declined from about 12 percent in 1989,
about the time the articles cited in the
NPRM were published, to 8 percent
presently; 78 thus, to the extent that lack
of contact with unions contributed to
lack of knowledge of NLRA rights 20
years ago, it probably is even more of a
factor today. 79
74 North Carolina License Plate Agency #18, 346
NLRB 293 (2006), enf’d. 243 F. Appx. 771 (4th Cir.
2007) (unpublished).
75 Eastex, Inc. v. NLRB, above, 437 U.S. at 565–
567.
76 NLRB v. Washington Aluminum Co., 370 U.S.
9, 14 (1962).
77 See comment of Cass County Electric
Cooperative. For example, Professor Morris, author
of two of the articles cited by the Board (as ‘‘see
also’’) listed no authority to support his assertion
that employees lack knowledge about the NLRA.
See Charles J. Morris, ‘‘Renaissance at the NLRB,’’
above at fn. 3; Morris, ‘‘NLRB Protection in the
Nonunion Workplace,’’ above at fn. 3.
78 See DeChiara, ‘‘The Right to Know,’’ above at
fn. 1; 75 FR 80411 fn. 4.
79 The Printing and Imaging Association
discussed these declining rates of unionization, and
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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
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.
—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
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 misinformed
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.
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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
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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Some comments argue that the
Board’s notice posting rule does not go
far enough to effectuate the NLRA. One
labor attorney argues that the Board
should require annual trainings for
supervisors and captive audience
meetings where employees are read
their rights by supervisors and Board
agents and the employees would have to
acknowledge receiving those notices. 93
The same comment suggests banning
captive audience meetings by
employers. The comment concludes that
the NPRM ‘‘doesn’t go anywhere near
far enough. It is, however, an important
and worthwhile advancement.’’ 94
Another comment also suggests that
annual, mandatory training classes for
employees would be desirable. 95 The
Board believes that this Rule strikes the
proper balance in communicating
necessary information about the NLRA
to employees.
For all the foregoing reasons, the
Board is persuaded that many private
sector employees are unaware of their
NLRA rights. 96
III. Summary of Final Rule and
Discussion of Related Comments