The Board’s rule, which requires
employers subject to the NLRA to post
notices of employee rights under the
NLRA, will be set forth in Chapter 1,
Part 104 of Volume 29 of the Code of
Federal Regulations (CFR). Subpart A of
the rule sets out definitions; prescribes
the size, form, and content of the
employee notice; and lists the categories
of employers that are not covered by the
rule. Subpart B sets out standards and
a few months, especially since the number of
contractors covered by the Labor Department’s rule
is only a small fraction of the number of employers
subject to the NLRA. In any event, the Board does
not believe that that is the proper criterion by
which to measure the rule’s effectiveness. The
purpose of requiring the posting of such notices is
to inform employees of their rights so that they may
exercise them more effectively, not to obtain any
particular result such as the filing of more election
petitions.
The same comment also cites a couple of
textbooks which it asserts are popularly used in
high schools today to argue that labor history is
being taught to today’s students. The Board is
unable to assess the truth of that assertion, but
regardless, it is unclear whether students
necessarily connect this history to their future
rights as employees.
93 Comment of Weinberg, Roger & Rosenfeld.
94 Id.
95 Comment of Staff Representative, Steelworkers.
96 Accordingly, the Board finds it unnecessary to
conduct a study to determine the extent of
employees’ knowledge of NLRA rights. The Board
further observes that even if only 10 percent of
workers were unaware of those rights, that would
still mean that more than 10 million workers lacked
knowledge of one of their most basic workplace
rights. The Board believes that there is no question
that at least a similar percentage of employees are
unaware of the rights explained in the notice. In the
Board’s view, that justifies issuing the rule.
procedures related to allegations of
noncompliance and enforcement of the
rule. The discussion below is organized
in the same manner and explains the
Board’s reasoning in adopting the
standards and procedures contained in
the regulatory text, including the
Board’s responses to the comments
received.
Subpart A—Definitions, Requirements
for Employee Notice, and Exceptions
From Coverage Definitions
A. The Definitions
For the most part, the definitions
proposed in the rule are taken from
those appearing in Section 2 of the
NLRA, 29 U.S.C. 152. No comments
were received concerning those
definitions, and they are unchanged in
the final rule. A number of comments
were received concerning the definition
of other terms appearing in the rule.
Those comments are addressed below.
B. Requirements for Employee Notice
1. Content Requirements
The notice contains a summary of
employee rights established under the
NLRA. As explained above, the Board
believes that requiring notice of
employee rights is necessary to carry out
the provisions of the NLRA.
Accordingly, § 104.202 of the proposed
rule requires employers subject to the
NLRA to post and maintain the notice
in conspicuous places, including all
places where notices to employees are
customarily posted, and to take
reasonable steps to ensure that the
notices are not altered, defaced, or
covered by any other material, or
otherwise rendered unreadable.
As stated in the NPRM, the Board
considered the substantive content and
level of detail the notice should contain
regarding NLRA rights. In arriving at the
content of the notice of employee rights,
the Board proposed to adopt the
language of the Department of Labor’s
final rule requiring Federal contractors
to post notices of employees’ NLRA
rights. 29 CFR part 471. In the NPRM,
the Board explained that it tentatively
agreed with the Department of Labor
that neither quoting the statement of
employee rights contained in Section 7
of the NLRA nor briefly summarizing
those rights in the notice would be
likely to effectively inform employees of
their rights. Rather, the language of the
notice should include a more detailed
description of employee rights derived
from Board and court decisions
implementing those rights. The Board
also stated that it saw merit in the
Department of Labor’s judgment that
including in the notice examples, again
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derived from Board and court decisions,
of conduct that violates the NLRA will
assist employees in understanding their
rights. 75 FR 80412.
Prior to issuing the NPRM, the Board
carefully reviewed the content of the
notice required under the Department of
Labor’s final rule, which was modified
in response to comments from
numerous sources, and tentatively
concluded that that notice explains
employee rights accurately and
effectively without going into excessive
or confusing detail. The Board therefore
found it unnecessary, for purposes of
the proposed rulemaking, to modify the
language of the notice in the Department
of Labor’s final rule. Moreover, the
Board reasoned that because the notice
of employee rights would be the same
under the Board’s proposed rule as
under the Department of Labor’s rule,
Federal contractors that have posted the
Department of Labor’s required notice
would have complied with the Board’s
rule and, so long as that notice is
posted, would not have to post a second
notice. Id.
The proposed notice contained
examples of general circumstances that
constitute violations of employee rights
under the NLRA. Thus, the Board
proposed a notice that provided
employees with more than a
rudimentary overview of their rights
under the NLRA, in a user-friendly
format, while simultaneously not
overwhelming employees with
information that is unnecessary and
distracting in the limited format of a
notice. As explained below, the Board
also tentatively agreed with the
Department of Labor that it is
unnecessary for the notice to include
specifically the right of employees who
are not union members and who are
covered by a contractual union-security
clause to refuse to pay union dues and
fees for any purpose other than
collective bargaining, contract
administration, or grievance adjustment.
See Communications Workers v. Beck,
487 U.S. 735 (1988). Id. at 80412–80413.
The Board specifically invited
comment on the statement of employee
rights proposed for inclusion in the
required notice to employees. In
particular, the Board requested
comment on whether the notice
contains sufficient information of
employee rights under the NLRA;
whether it effectively conveys that
information to employees; and whether
it achieves the desired balance between
providing an overview of employee
rights under the Act and limiting
unnecessary and distracting
information. Id. at 80413.
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The proposed Appendix to Subpart A
included Board contact information and
basic enforcement procedures to enable
employees to learn more about their
NLRA rights and how to enforce them.
Thus, the required notice confirmed that
unlawful conduct will not be permitted,
provided information about the Board
and about filing a charge with the
Board, and stated that the Board will
prosecute violators of the NLRA. The
notice also indicated that there is a 6-
month statute of limitations for filing
charges with the Board alleging
violations and provided Board contact
information. The Board invited
suggested additions or deletions to these
provisions that would improve the
content of the notice of employee rights.
Id.
The content of the proposed notice
received more comments than any other
single topic in the proposed rule. But of
the thousands of comments that address
the content of the notice, the majority
are either very general, or identical or
nearly identical form letters or
‘‘postcard’’ comments sent in response
to comment initiatives by various
interest groups, including those
representing employers, unions, and
employee rights organizations. Many
comments from both individuals and
organizations offer general support for
the content of the proposed notice,
stating that employee awareness of basic
legal rights will promote a fair and just
workplace, improve employee morale,
and foster workforce stability, among
other benefits. 97 More specifically, one
comment asserts that the proposed
notice ‘‘contains an accurate,
understandable and balanced
presentation of rights.’’ 98 The United
Transportation Union contends that the
‘‘notice presents an understandable,
concise and extremely informative
recitation of workers’ rights, without
getting bogged down in extraneous
language, incomprehensible legalese or
innumerable caveats and exceptions.’’
Other comments were less supportive
of the content of the proposed notice
and the notice-posting requirement in
general. A significant number of
comments, including those from many
individuals, employers, and employer
industry and interest groups, argue that
the content of the notice is not balanced,
and appears to promote unionization
instead of employee freedom of
association. In particular, many
comments state that Section 7 of the
97 See comments of the National Immigration Law
Center, Service Employees International Union, and
Weinberg, Roger & Rosenfeld.
98 Comment of David Fusco, a labor and
employment attorney.
NLRA includes the right to refrain from
union activity, but claim that this right
is given little attention in comparison to
other rights in the proposed notice.
Several comments also argue that the
proposed notice excludes rights
associated with an anti-union position,
including the right to seek
decertification of a bargaining
representative, the right to abstain from
union membership in ‘‘right-to-work’’
states, and rights associated with the
Supreme Court’s decision in
Communications Workers v. Beck. 99
Comments also suggest that the notice
should include a warning to employees
that unionizing will result in a loss of
the right to negotiate directly with their
employer. 100 Many of these comments
argue that a neutral government position
on unionization would be more
inclusive of anti-union rights. 101
A number of comments address the
issue of complexity, and argue that the
Board’s attempt to summarize the law is
flawed because the Board’s decisional
law is too complex to condense into a
single workplace notice. 102 Some of the
comments addressing this issue note
that NLRA law has been developed over
75 years, and involves interpretations by
both the NLRB and the Federal courts,
sometimes with conflicting results. The
Chamber of Commerce cites the
‘‘NLRB’s Basic Guide to the National
Labor Relations Act: General Principles
of Law Under the Statute and
Procedures of the National Labor
Relations Board’’ (Basic Guide to the
NLRA) (1997), available at http://
www.nlrb.gov/publications/brochures,
to make their point about legal
complexity. In the Foreword to the
Basic Guide to the NLRA, the Board’s
General Counsel states that ‘‘[a]ny effort
to state basic principles of law in a
simple way is a challenging and
unenviable task. This is especially true
about labor law, a relatively complex
field of law.’’ The thrust of these
comments about legal complexity was
that the NLRA is complex, dynamic,
and nuanced, and any attempt to
summarize it in a workplace notice will
result in an oversimplification of the
law and lead to confusion,
misunderstanding, inconsistencies, and
some say, heightened labor-management
antagonism. Moreover, some comments
express concern that Board member
turnover could result in changes to the
99 See comments of Pilchak, Cohen & Tice,
American Trucking Association, and Electrical and
Mechanical Systems Inc.
100 See, e.g. comment of the Heritage Foundation.
101 See, e.g., comment of the National Right to
Work Committee.
102 See, e.g., comment of COLLE, Retail Industry
Leaders Association.
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law, which may require frequent
updates to the notice. 103
Many comments suggest that the
required notice should include only the
specific rights contained in Section 7 of
the NLRA or, at most, the rights and
obligations stated in employee
advisories on the NLRB’s Web site. The
comments favoring a more general
notice suggest that the detailed list of
rights far exceeds the ‘‘short and plain’’
description of rights that the Board has
found sufficient to ‘‘clearly and
effectively inform employees of their
rights under the Act’’ in unfair labor
practice cases. 104 See Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001),
enfd. 354 F.3d 534 (6th Cir. 2004). A
comment from Fisher & Phillips LLP
argues that, under the Board’s current
remedial practices, only an employer
that egregiously violates the Act on
numerous occasions is required to post
such an inclusive list of rights.
Finally, a number of comments
suggest that the notice should include a
list of employer rights, namely the right
to distribute anti-union literature and
the right to discuss the company’s
position regarding unions.
In addition to the general comments
about the proposed notice, many
comments offer suggestions for specific
revisions to individual provisions
within the five sections of the proposed
notice: the introduction, the statement
of affirmative rights, the examples of
unlawful conduct, the collectivebargaining
provision, and the coverage
information. The following discussion
presents the comments related to
individual provisions of the notice,
followed by the Board’s decisions
regarding the content of the final notice
made in response to those comments.
a. Comments Regarding the Introduction
The introduction to the notice of
rights in the proposed rule stated:
The National Labor Relations Act (NLRA)
guarantees the right of employees to organize
and bargain collectively with their
employers, and to engage in other protected
concerted activity. Employees covered by the
NLRB are protected from certain types of
employer and union misconduct. This Notice
gives you general information about your
rights, and about the obligations of employers
under the NLRA. Contact the National Labor
Relations Board (NLRB), the Federal agency
that investigates and resolves complaints
under the NLRA, using the contact
information supplied below, if you have any
questions about specific rights that may
apply in your particular workplace.
103 See comment of Capital Associated Industries,
Inc. and National Association of Manufacturers.
104 See e.g. comments of COLLE and Coalition for
a Democratic Workplace.
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75 FR 80418–80419 (footnote omitted).
The Board received a few suggestions
for changes to the introduction of the
notice. The first comment suggests
including language stating that
employees are required to contact their
‘‘executive manager’’ or ‘‘administrative
team’’ before contacting the NLRB and
suggests that the NLRB refuse to process
employees’ complaints until the
employees first raise the issue with his
or her ‘‘management team.’’ The second
comment, from COLLE, urges the Board
to add language in the introduction
alerting employees that they also have
the right to refrain from engaging in
union activity. The comment suggests
that by not including the right to refrain
from union activity in the introduction,
the Board is showing a bias toward
union organizing. The comment argues
that a more neutral notice would
include both the right to engage and not
engage in union activity at the
beginning of the document, rather than
wait to first mention the right to refrain
in the affirmative rights section.
The Board does not agree with the
proposal that employees be required to
contact management officials as a
prerequisite to contacting the Board.
Such a procedural requirement is not
contemplated in the NLRA and could
discourage employees from exercising
or vindicating their rights.
The Board agrees, however, that the
introduction should include both the
rights to engage in union and other
concerted activity and the right to
refrain from doing so. The Board
believes that adding the right to refrain
to the introduction will aid in the
Board’s approach to present a balanced
and neutral statement of rights.
Accordingly, the first sentence in the
introduction to the notice in the final
rule will state:
The National Labor Relations Act (NLRA)
guarantees the right of employees to organize
and bargain collectively with their
employers, and to engage in other protected
concerted activity or to refrain from engaging
in any of the above activity.
b. Comments Regarding Affirmative
Statement of Rights
The proposed notice contains the
following statement of affirmative
rights: Under the NLRA, you have the
right to:
Organize a union to negotiate with your
employer concerning your wages, hours, and
other terms and conditions of employment.
Form, join or assist a union.
Bargain collectively through
representatives of employees’ own choosing
for a contract with your employer setting
your wages, benefits, hours, and other
working conditions.
Discuss your terms and conditions of
employment or union organizing with your
co-workers or a union.
Take action with one or more co-workers
to improve your working conditions by,
among other means, raising work-related
complaints directly with your employer or
with a government agency, and seeking help
from a union.
Strike and picket, depending on the
purpose or means of the strike or the
picketing.
Choose not to do any of these activities,
including joining or remaining a member of
a union.
75 FR 80419.
The majority of comments addressing
the affirmative rights section were
general and did not specifically address
the language of the individual
provisions. Generally, labor
organizations and employee advocate
groups favor the Board’s language. A
comment from the United Food and
Commercial Workers International
Union asserts that the approach
‘‘achieves an appropriate balance
between providing sufficiently clear
information about employee’s basic
statutory rights and limiting
unnecessary and confusing information
about peripheral rights.’’ On the other
hand, comments from employer groups
do not favor the Board’s language. More
specifically, employer groups argue that
the notice is biased toward union
organizing. Generally, the comments
argue that the right to refrain from
engaging in union activity should have
a more prominent place on the notice,
rather than being the last of the rights
listed on the poster. Many of these
comments contend that the notice
should include the right not to engage
in specific union-related activities.
Other comments about the notice’s
statement of affirmative rights are
directed at individual provisions of the
notice. A discussion of those comments
is set out in more detail below.
i. The Right To Organize and the Right
To Form, Join and Assist a Union
A few comments generally state that
the notice should include the
consequences of exercising the right to
organize, join or form a union. 105 For
example, several comments argue that
employees should be informed that if
they join a union they give up the right
to deal directly with their employers.
Another comment argues that
employees should be informed of the
cost of organizing a union, including the
cost of dues and the potential for the
company to shut down because of
increased labor costs associated with a
unionized workforce. Other comments
105 See, e.g., comment of Pilchak Cohen & Tice.
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suggest including language informing
employees that they can be fired for not
paying their union dues.
The Board rejects those suggestions.
The notice is intended to inform
employees of the rights that they have
under the NLRA and does not include
the benefits or consequences of
exercising any of the enumerated rights.
Adding the consequences of one right
would require revising the entire notice
to include potential consequences—
both positive and negative—of all the
protected rights. For example, the notice
would need to include the
consequences of refraining from joining
a union, such as not being permitted to
vote on contract ratifications or attend
union membership meetings. The
necessary additions to the notice would
create a notice that is not a concise list
of rights, but more likely a pamphletsized
list of rights and explanations. In
addition, the consequences of
unionization are unique to each
unionized workplace, so it would be
impossible to include a list of general
consequences that could apply
uniformly to all unionized workplaces.
If employees have questions about the
implications of any of their rights, they
can contact an NLRB regional office.
Assisted Living Federation of America
(ALFA) suggests that the affirmative
rights section should be revised to
reflect the anti-union position. For
example, rather than the current
provision that states that employees
have a right to ‘‘[o]rganize a union to
negotiate with your employer
concerning your wages, hours, and other
terms and conditions of employment,’’
the comment suggests the following
provision: ‘‘you have the right to
organize with other employees in
opposition to a particular union or
unions.’’ And ‘‘you have the right to:
refuse to form, join, or assist a union,
including the right to refuse to sign a
union card, attend a union meeting or
supply a union with information
concerning you, your co-worker or your
job,’’ rather than ‘‘[you have the right to]
[f]orm, join or assist a union.’’ The
Board disagrees. The Board’s proposed
notice language reflects the language of
the NLRA itself, which specifically
grants affirmative rights, including
nearly all of those listed in the notice.
Also, the notice, like the NLRA, states
that employees have the right to refrain
from engaging in all of the listed
activities. The Board therefore sees no
need to recast the notice to further
emphasize the right to oppose unions.
ii. The Right To Bargain Collectively
Two comments suggest that the
collective-bargaining provision is
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misleading and vague. The first
comment, from COLLE, argues that the
provision is misleading because it fails
to acknowledge that an employer does
not have an obligation under the NLRA
to consent to the establishment of a
collective-bargaining agreement, but
instead only has the statutory duty to
‘‘meet at reasonable times and confer in
good faith with respect to wages, hours,
and other terms and conditions of
employment.’’ 29 U.S.C. 158(d). The
comment also argues that the failure to
reach an agreement is not per se
unlawful, and the finding of an unfair
labor practice depends on whether the
parties engaged in good-faith bargaining.
This comment suggests that the notice
should instead note that the NLRA
requires parties to bargain in good faith
but does not compel agreement or the
making of concessions, and that, in
some instances, a bargaining impasse
will result, permitting the parties to
exercise their economic weapons, such
as strikes or lockouts. The second
comment, made generally by more than
a few organizations and individuals,
suggests that the notice add a statement
indicating that employers and unions
have an obligation to bargain in good
faith.
The Board finds it unnecessary to add
the suggested amplifications. For one
thing, the notice does state that
employers and unions have a duty to
bargain in good faith, ‘‘in a genuine
effort to reach a written, binding
agreement setting your terms and
conditions of employment.’’ In the
Board’s view, the statement that the
parties must make a ‘‘genuine effort’’ to
reach agreement necessarily implies that
they are not, in the end, required to
reach one. The Board deems the notice
language to be adequate on this point.
Finally, for the reasons already
discussed, the Board rejects the
contention that the notice should
discuss the implications or
consequences of unsuccessful
bargaining.
iii. The Right To Discuss With Co-
Workers or Union
A comment from the National
Immigration Law Center suggests that
the use of the phrase ‘‘terms and
conditions of employment’’ is unclear
especially to employees who are
unaware of their rights under the NLRA.
The comment recommends that, in
order to clarify, the Board add the
phrase ‘‘including wages and benefits.’’
The suggested language would read,
‘‘you have the right to: discuss your
terms and conditions of employment,
including wages and benefits, or union
organizing with your co-workers or a
union.’’
The Board agrees that adding the
suggested language would clarify the
provision. The list of affirmative rights
uses the terms ‘‘wages, hours, and other
terms and conditions of employment’’ to
describe what unions may negotiate.
The notice then uses the terms ‘‘wages,
benefits, hours, and other working
conditions’’ to describe the right to
bargain collectively for a contract. Those
statements make it clear that ‘‘terms and
conditions of employment’’ includes
wages and benefits. But then
immediately following those two
statements, the notice states that
employees may discuss ‘‘terms and
conditions of employment,’’ but does
not include any clarifying language. In
order, to create a more uniform notice
and clarify the extent to which
employees may discuss their terms and
conditions of employment the final
notice will read, ‘‘Under the NLRA, you
have a right to: Discuss your wages and
benefits and other terms and conditions
of employment or union organizing with
your co-workers or a union.’’
iv. The Right To Strike and Picket
The notice’s reference to the right to
strike and picket received a few
comments from law firms and other
organizations representing employers’
interests. The comments suggest that the
provision is flawed because of the
absence of further limitations,
exceptions, and distinctions. 106
Generally, the comments argue that not
all strikes and pickets are protected.
COLLE argues that the notice should
inform employees of the limitations of
strikes encompassed by ‘‘depending on
the purpose or means of the strike or
pickets’’—for example, whether the
strike is for recognition or bargaining,
whether the strike has a secondary
purpose, whether picketing involves a
reserved gate, whether the strike is a sitdown
or minority strike, whether the
conduct is a slowdown and not a full
withholding of work, whether the strike
is partial or intermittent, whether the
strike involves violence, and whether
the strike is an unfair labor practice
strike or an economic strike. ALFA
argues that employees should be
informed that if the employer is a
healthcare institution, ‘‘employees do
not have the right to participate in a
union-initiated strike or picket unless
the union has provided the employer
and federal and state mediation agencies
with the required 10 days notice.’’
106 See comments of ALFA, Carrollton Health and
Rehabilitation Center, and COLLE.
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The Board disagrees. By necessity, an
11x17-inch notice cannot contain an
exhaustive list of limitations on and
exceptions to the rights to strike and
picket, as suggested by employers.
However, because exercising the right to
strike can significantly affect the
livelihood of employees, the Board
considers it important to alert
employees that there are some
limitations to exercising this right. The
Board is satisfied that the general
caveat, ‘‘depending on the purpose or
means of the strike or the picketing,’’
together with the instruction to contact
the NLRB with specific questions about
the application of rights in certain
situations, provides sufficient guidance
to employees about the exercise of their
rights while still staying within the
constraints set by a necessarily brief
employee notice.
v. The Right To Refrain From Union or
Other Protected Concerted Activity
All the comments that discuss the
right to refrain from engaging in union
activity criticize what they contend to
be its lack of prominence. ALFA accuses
the Board of ‘‘burying’’ the provision by
placing it last, below the other rights to
engage in union and other concerted
activity. The U.S. Chamber of
Commerce suggests that the notice
include ‘‘or not’’ after each of the
enumerated rights. For example, ‘‘you
have the right to: form join or assist a
union, or not.’’ (Emphasis added.) Other
suggested revisions to amplify the
prominence of the provision include
stating that employees have the right to
refrain from protected, concerted
activities and/or union activities; stating
that employees’ right to refrain includes
the right to actively oppose
unionization, to not sign union
authorization cards, to request a secret
ballot election, to not be a member of a
union or pay dues or fees (addressed
further below), or to decertify a union
(also addressed below); and stating that
employees have the right to be fairly
represented even if not a member of the
union. One employer suggests that if the
notice retains its current emphasis
favoring union activity and disfavoring
the freedom to refrain from such
activity, employers will need to post
their own notices that emphasize and
elaborate on the right to refrain.
The Board received at least four
comments that argue that the notice, as
written, may make employees believe
that the employer is encouraging
unionization. Two of those comments
suggest that an employer is protected
from compelled speech by Section 8(c)
of the NLRA. (The Board has already
rejected the latter argument; see section
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II, subsection B, ‘‘Statutory Authority,’’
above.)
The contention that the right to
refrain from engaging in union activity
is ‘‘buried’’ in the list of other
affirmative rights or that the Board is
biased in favor of unionization because
of the choice of placement is without
merit. The list of rights in the proposed
notice is patterned after the list of rights
in Section 7 of the NLRA, 29 U.S.C. 157.
Section 7 lists the right to refrain last,
after stating several other affirmative
rights before it. In addition, the Board’s
remedial notices list the right to refrain
last. See Ishikawa Gasket America, Inc.,
above. So does the Board’s Notice of
Election. In addition, the notice
required by this rule states that it is
illegal for an employer to take adverse
action against an employee ‘‘because
[the employee] choose[s] not to engage
in any such [union-related] activity.’’
The Board has revised the introduction
of the notice to include the right to
refrain—this addition further highlights
an employee’s right to refrain from
union activity. Finally, the Board
believes that people understand a right
as different from an obligation and thus
will, for example, understand that the
right to organize a union includes the
right not to do so. Accordingly, the
Board concludes that the notice
sufficiently addresses the right to refrain
among the list of statutory rights. In
addressing the numerous comments
questioning the Board’s neutrality, the
Board points out that in Section 1 of the
NLRA, Congress declared that it is the
policy of the United States to mitigate
or eliminate obstructions to the free
flow of commerce ‘‘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.’’ 29 U.S.C. 151. Thus, by its
own terms, the NLRA encourages
collective bargaining and the exercise of
the other affirmative rights guaranteed
by the statute. In doing so, however, the
NLRA seeks to ensure employee choice
both to participate in union or other
protected concerted activity and to
refrain from doing so.
Turning to the issues of whether the
notice creates the impression that the
employer is encouraging unionization
and whether an employer can be
compelled to post the notice which
contains information the employer
would otherwise not share with
employees, the Board disagrees with
both arguments. First, the notice clearly
states that it is from the government.
Second, in light of the other workplace
notice employees are accustomed to
seeing, employees will understand that
the notice is a communication to
workers from the government, not from
the employer. Finally, as discussed
above, NLRA Section 8(c) protects
employers’ right to express any ‘‘views,
argument, or opinion’’ ‘‘if such
expression contains no threat of reprisal
or force or promise of benefit.’’ The rule
does not affect this right. Therefore, if
an employer is concerned that
employees will get the wrong
impression, it may legally express its
opinion regarding unionization as long
as it does so in a noncoercive manner.
Critics of the notice contend that the
notice should contain a number of
additional rights and also explanations
of when and how an employee may opt
out of paying union dues. Thus, most
employer groups argue that the notice
should contain a statement regarding
the right to decertify a union. A number
of those comments state that the notice
should provide detailed guidance on the
process for decertifying a union. Others
suggest that the notice should contain
instructions for deauthorizing a union
security clause. A majority of employers
and individuals who filed comments on
the content of the notice urge the Board
to include a notice of employee rights
under Communications Workers v.
Beck. Baker & McKenzie suggests
adding a provision informing employees
that for religious purposes an employee
may opt out of paying dues to a
union. 107 A few comments also suggest
that the notice add any rights that
employees may have in ‘‘right-to-work’’
states. As indicated previously,
numerous comments suggest the
inclusion of other rights of employees
who do not desire union representation.
Baker & McKenzie suggests a list of 26
additional affirmative rights, most of
which only affect employees in a
unionized setting and are derived from
the Labor-Management Reporting and
Disclosure Act, the Labor-Management
Relations Act, or other Federal labor
statutes enforced by the Department of
Labor. The proposed list also includes
107 NLRA Section 19 provides that ‘‘Any
employee who is a member of and adheres to
established and traditional tenets or teachings of a
bona fide religion, body, or sect which has
historically held conscientious objections to joining
or financially supporting labor organizations shall
not be required to join or financially support any
labor organization as a condition of employment;
except that such employee may be required in a
contract between such employee’s employer and a
labor organization in lieu of periodic dues and
initiation fees, to pay sums equal to such dues and
initiation fees to a nonreligious, nonlabor
organization charitable fund exempt from
taxation[.]’’ 29 U.S.C. 169.
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some rights covered by the NLRA such
as ‘‘the right to sign or refuse to sign an
authorization card,’’ ‘‘the right to
discuss the advantages and
disadvantages of union representation
or membership with the employer,’’ and
‘‘the right to receive information from
the employer regarding the advantages
and disadvantages of union
representation.’’
The Board has determined that the
inclusion of these additional items is
unnecessary. As discussed above, the
NLRA itself contains only a general
statement that employees have the right
not to participate in union and/or other
protected concerted activities. Section
19 does specifically set forth the right of
certain religious objectors to pay the
equivalent of union dues to a taxexempt
charity; however, this right is
implicated only when an employer and
union have entered into a unionsecurity
arrangement. Because the
notice does not mention or explain such
arrangements, the Board finds no reason
to list this narrow exception to unionsecurity
requirements. In sum, the
Board is not persuaded that the notice
needs to expand further on the right to
refrain by including a list of specific
ways in which employees can elect not
to participate or opt out of paying union
dues. Employees who desire more
information regarding the right not to
participate can contact the Board.
The Board does not believe that
further explication of this point is
necessary. However, because so many
comments argue that the notice should
include the right to decertify a union
and rights under Communication
Workers v. Beck, the Board has decided
to explain specifically why it disagrees
with each contention.
Concerning the right to decertify, the
notice states that employees have the
right not to engage in union activity,
‘‘including joining or remaining a
member of a union.’’ Moreover, the
notice does not mention the right to
seek Board certification of a union.
Indeed, contrary to the numerous
comments suggesting that the proposed
notice is a ‘‘roadmap’’ for union
organizing, the notice does not even
mention the right to petition for a union
representation election, possibly leading
to union certification; rather, it merely
states that employees have the right to
‘‘organize a union’’ and ‘‘form, join or
assist a union.’’ The notice does not give
any further instructions on how an
employee can exercise those rights.
Similarly, the notice states that
employees may choose not to remain a
member of a union without further
instructions on how to exercise that
right. To include instructions for
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exercising one right and not the other
would upset the balanced recitation of
rights. If employees have questions
concerning how they can exercise their
rights, the notice encourages them to
contact the Board.
The Board has also determined that
the addition of Beck rights in the final
notice is unnecessary. Those rights
apply only to employees who are
represented by unions under collectivebargaining
agreements containing
union-security provisions. As stated in
the NPRM, unions that seek to obligate
employees to pay dues and fees under
those provisions are required to inform
those employees of their Beck rights.
See California Saw & Knife Works,
above, 320 NLRB at 233. See 75 FR at
80412–80413. The Board was presented
with no evidence during this
rulemaking that suggests that unions are
not generally complying with their
notice obligations. In addition, the
Notice of Election, which is posted days
before employees vote on whether to be
represented by a union, contains an
explanation of Beck rights. Moreover, as
the Board stated in the NPRM, only
about 8 percent of all private sector
employees are represented by unions,
and by no means are all of them subject
to union-security clauses. Accordingly,
the number of employees to whom Beck
applies is significantly smaller than the
number of employees in the private
sector covered by the NLRA. Id. at
80413. Indeed, in the ‘‘right-to-work’’
states, where union-security clauses are
prohibited, no employees are covered by
union security clauses, with the
possible exception of employees who
work in a Federal enclave where state
laws do not apply. Accordingly, because
Beck does not apply to the
overwhelming majority of employees in
today’s private sector workplace, and
because unions already are obliged to
inform the employees to whom it does
apply of their Beck rights, the Board is
not including Beck notification in the
final notice.
The Board also disagrees with the
comment from Baker & McKenzie
contending that an exhaustive list of
additional rights should be included in
the notice. In addition to the reasons
discussed above, the Board finds that it
would not be appropriate to include
those rights, most of which are rights of
union members vis-à-vis their unions.
For example, the comment suggests
including the ‘‘right for each union
member to insist that his/her dues and
initiation fees not be increased * * *
except by a majority vote by secret
ballot * * *,’’ the ‘‘right of each
employee in a bargaining unit to receive
a copy of the collective bargaining
agreement,’’ and the ‘‘right to nominate
candidates, to vote in elections of the
labor organization, to attend
membership meetings, and to
participate in the deliberations and
voting upon business properly before
the meeting.’’ Those rights are not found
in the NLRA, but instead arise from
other Federal labor laws not
administered by the NLRB. See Labor-
Management Reporting and Disclosure
Act of 1959, 29 U.S.C. 401 et seq
(LMRDA). The Board finds that it would
be inappropriate to include those
additional rights in a notice informing
employees of their rights under the
NLRA.
vi. Other Comments
The Board has also considered, but
rejected, the contention that the notice
contain simply a ‘‘short and plain’’
description of rights such as that used
in remedial notices. See Ishikawa
Gasket America, Inc., above. The two
notices have different purposes: one
looks back; the other, forward. As
explained in the NPRM, the principal
purpose of a remedial notice is to
inform employees of unlawful conduct
that has taken place and what is being
done to remedy that conduct.
Accordingly, although a remedial notice
contains only a brief summary of NLRA
rights, it also contains examples of
unlawful actions that have been
committed. To the extent that such a
notice generally increases employees’
awareness of their rights, the unlawful
conduct detailed adds to that awareness.
The proposed notice, by contrast, is a
notice intended to make employees
aware of their NLRA rights generally. It
normally will not be posted against a
background of already-committed unfair
labor practices; it therefore needs to
contain a summary both of NLRA rights
and examples of unlawful conduct in
order to inform employees effectively of
the extent of their NLRA rights and of
the availability of remedies for
violations of those rights. Moreover, as
the Board explained in the NPRM, the
general notice of rights posted in the
pre-election notice is sufficient because
at least one union along with the
employer is on the scene to enlighten
employees of their rights under the
NLRA. 75 FR 80412 fn.19.
The fundamental rights described in
the notice are well established and have
been unchanged for much of the Board’s
history. Accordingly, the Board does not
share the concern expressed in some
comments that a new notice will have
to be posted each time the composition
of the Board changes.
Finally, the Board rejects the
contention that the notice should
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address certain rights of employers. The
notice is intended to inform employees
of their rights, not those of their
employers.
For all the foregoing reasons, the
Board finds it unnecessary to modify the
section of the notice summarizing
employees’ NLRA rights.
c. The Examples of Unlawful Employer
Conduct in the Notice
The proposed notice contained the
following examples of unlawful
conduct:
Under the NLRA, it is illegal for your
employer to:
Prohibit you from soliciting for a union
during non-work time, such as before or after
work or during break times; or from
distributing union literature during non-work
time, in non-work areas, such as parking lots
or break rooms.
Question you about your union support or
activities in a manner that discourages you
from engaging in that activity.
Fire, demote, or transfer you, or reduce
your hours or change your shift, or otherwise
take adverse action against you, or threaten
to take any of these actions, because you join
or support a union, or because you engage in
concerted activity for mutual aid and
protection, or because you choose not to
engage in any such activity.
Threaten to close your workplace if
workers choose a union to represent them.
Promise or grant promotions, pay raises, or
other benefits to discourage or encourage
union support.
Prohibit you from wearing union hats,
buttons, t-shirts, and pins in the workplace
except under special circumstances.
Spy on or videotape peaceful union
activities and gatherings or pretend to do so.
75 FR 80419.
The Board received limited comments
on six of the seven examples of
unlawful employer conduct. As a
general matter, some comments contend
that the number of examples of
employer misconduct is
disproportionate compared to the
examples of union misconduct. 108 Most
of the comments refer to the number of
paragraphs devoted to illegal employer
conduct (7) and the number of
paragraphs devoted to illegal union
conduct (5). Several comments indicate
that when one compares the employer
misconduct listed in Section 8(a) of the
NLRA with union misconduct listed in
Section 8(b), no such imbalance appears
in the text of the statute. Several
comments provide additional examples
of union misconduct that they say
should be included.
As with the notice’s statement of
affirmative rights, some of the
108 See, e.g., comments of COLLE, Baker &
McKenzie, National Association of Manufacturers,
and American Trucking Association.
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individual provisions in this section of
the notice received numerous comments
and suggestions for improvement. The
vast majority of the comments about the
specific provisions are from
representatives of employers. Those
comments generally contend that the
provisions are overgeneralizations and
do not articulate the legal standard for
evaluating allegations of unlawful
conduct or indicate factual scenarios in
which certain employer conduct may be
lawful.
After reviewing all of the comments,
the Board has decided to revise one of
the examples of unlawful employer
conduct contained in the NPRM. The
Board concludes that the other
provisions, as proposed, are accurate
and informative and, as with the notice
as a whole, strike an appropriate
balance between being simultaneously
instructive and succinct.
Furthermore, the Board sees no reason
to add or subtract from the employer or
union illegal activity to make the two
sections contain an equal number of
paragraphs. The comment that argues
that no imbalance exists in the statute
is correct, but the majority of violations
under Section 8(b) concern union
conduct vis-à-vis employers, not
conduct that impairs employees’ rights.
The notice of rights is intended to
summarize employer and union
violations against employees;
accordingly, there is no need to alter the
list to include unlawful union activity
against employers.
i. No-Solicitation and No-Distribution
Rules
The Board received a few comments
that were critical of the proposed notice
language stating that an employer
cannot lawfully prohibit employees
from ‘‘soliciting for the union during
non-work time or distributing union
literature during non-work time, in nonwork
areas.’’ The Service Employees
International Union comments that
‘‘solicitation’’ has a narrow meaning and
involves asking someone to join the
union by signing an authorization card,
which is subject to the restrictions
suggested in the notice. The comment
submits that the notice should state that
an employer cannot prohibit employees
from ‘‘talking’’ about a union. The
comment suggests that ‘‘talking’’ is both
more accurate and is easier for
employees to understand than
‘‘soliciting.’’
The remaining comments criticize the
provision for failing to note any
limitations on employees’ rights to
solicit and distribute, such as the
limited rights of off-duty employees,
and limitations in retail and health care
establishments. One comment, in
particular, suggests the notice should
advise healthcare employees that they
do not enjoy a protected right to solicit
in immediate patient care areas or
where their activity might disturb
patients. See Beth Israel Hosp. v. NLRB,
437 U.S. 483 (1978). The comment
proposes to include a qualification that
a hospital or other health care employer
may prohibit all solicitation in
immediate patient care areas or outside
those areas when necessary to avoid
disrupting health care operations or
disturbing patients. Another comment
suggests that the law in this area is so
complex that no meaningful but
succinct provision can be constructed,
and therefore recommends deleting it
entirely.
The Board disagrees with those
comments. The Board appreciates that
under case law, employees’ right to
engage in solicitation and distribution of
literature is qualified in certain settings
and accordingly that employers may, in
some situations, legally prohibit
solicitation or distribution of literature
even during employees’ nonworking
time. Given the variety of circumstances
in which the right to solicit and
distribute may be limited, however, the
Board has determined that limitations
on the size and format of the notice
preclude the inclusion of factual
situations in which an employer may
lawfully limit such activity. As stated
above, employees may contact the NLRB
with specific questions about the
lawfulness of their employers’ rules
governing solicitation and literature
distribution.
Turning to the suggestion that the
notice should be modified to remove the
reference to union solicitation in favor
of a reference only to the right to engage
in union talk, the Board agrees in part.
The Board distinguishes between
soliciting for a union, which generally
means encouraging a co-worker to
participate in supporting a union, and
union talk, which generally refers to
discussions about the advantages and
disadvantages of unionization. Scripps
Memorial Hosp., 347 NLRB 52 (2006).
The right to talk about terms and
conditions of employment, which
would necessarily include union talk, is
encompassed more specifically by the
‘‘discussion’’ provision in the
affirmative rights section of the notice.
That provision indicates that employees
have the right to ‘‘discuss your terms
and conditions of employment or union
organizing with your co-workers or a
union.’’ In order to maintain
consistency and clarity throughout the
notice, the Board agrees that some
change is necessary to the solicitation
provision. Accordingly, the final notice
will state that it is illegal for an
employer to ‘‘prohibit you from talking
about or soliciting for a union during
non-work time, such as before or after
work or during break times; or from
distributing union literature during nonwork
time, in non-work areas, such as
parking lots or break rooms.’’
ii. Questioning Employees About Union
Activity
The Board received one comment
concerning this provision, suggesting
that it was confusing. The Board
believes the existing language is
sufficiently clear.
iii. Taking Adverse Action Against
Employees for Engaging in Union-
Related Activity
The Board did not receive any
specific comments regarding this
provision.
iv. Threats To Close
A few comments from employer
groups criticize the perceived
overgeneralization of this provision.
Those comments note that, as with
unlawful interrogation, a threat to close
is evaluated under a totality of
circumstances, and that an employer is
permitted to state the effects of
unionization on the company so long as
the statement is based on demonstrably
probable consequences of unionization.
The Board agrees that the law in this
general area is complex and that
predictions of plant closure based on
demonstrably probable consequences of
unionization may be lawful. NLRB v.
Gissel Packing Co., 395 U.S. 575, 618
(1969). However, the example in the
proposed notice is not such a
prediction; rather, the notice states that
it is unlawful for an employer to
‘‘threaten to close your workplace if
workers choose a union to represent
them.’’ Such a statement, which clearly
indicates that the employer will close
the plant in retaliation against the
employees for choosing union
representation, is unlawful. Id. at 618–
619. Thus, the Board finds it
unnecessary to modify or delete this
provision of the notice.
v. Promising Benefits
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The Board received one comment
addressing this provision. The comment
argues that the provision is ‘‘troubling’’
because it may be interpreted by a
reader to mean ‘‘anytime their employer
seeks to make such improvements it
discourages union support because
improved wages and benefits may
reduce employee’s interest in a union.’’
The Board does not think such an
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interpretation would be reasonable,
because it is contrary to the plain
language of the notice. The notice states
that promises or grants of benefits ‘‘to
discourage or encourage union support’’
are unlawful. It would make little sense
to use such language if the Board had
meant that any promises or grants of
benefits were unlawful, rather than only
those with the unlawful stated
purposes. And stating that such
promises or grants to * * * encourage
union support are unlawful necessarily
implies that not all promises and grants
of benefits discourage union support.
vi. Prohibitions on Union Insignia
A few comments suggest that the
provision fails to illuminate the
conditions under which ‘‘special
circumstances’’ may exist, including in
hotels or retail establishments where the
insignia may interfere with the
employer’s public image, or when the
insignia is profane or vulgar. Another
comment indicates that the provision is
overly broad because it does not reflect
that a violation depends on the work
environment and the content of the
insignia. All the comments addressing
this provision suggest either adding
more detail to the provision to narrow
its meaning, or striking the provision
entirely.
Again, the Board disagrees.
Employees have a statutorily protected
right to wear union insignia unless the
employer is able to demonstrate
‘‘special circumstances’’ that justify a
prohibition. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). For reasons
of format, the notice cannot
accommodate those comments
suggesting that this provision specify
cases in which the Board has found
‘‘special circumstances,’’ such as where
insignia might interfere with production
or safety; where it conveys a message
that is obscene or disparages a
company’s product or service; where it
interferes with an employer’s attempts
to have its employees project a specific
image to customers; where it hinders
production; where it causes disciplinary
problems in the plant; where it is in an
immediate patient care areas; or where
it would have any other consequences
that would constitute special
circumstances under settled precedent.
NLRB v. Mead Corp., 73 F.3d 74, 79 (6th
Cir. 1996), enfg. Escanaba Paper Co.,
314 NLRB 732 (1994).
Given the lengthy list of potential
special circumstances, the addition of
one or two examples of special
circumstances might mislead or confuse
employees into thinking that the right to
wear union insignia in all other
circumstances was absolute. And
including an entire list of special
circumstances, concerning both the
wearing of union insignia and other
matters (e.g., striking and picketing,
soliciting and distributing union
literature), would make it impossible to
summarize NLRA rights on an 11x17
inch poster. In any event, the Board
finds that the general caveat that special
circumstances may defeat the
application of the general rule, coupled
with the advice to employees to contact
the NLRB with specific questions about
particular issues, achieves the balance
required for an employee notice of
rights about wearing union insignia in
the workplace.
vii. Spying or Videotaping
Aside from the few comments that
suggest the provision be stricken, only
one comment specifically addresses the
content of this provision. The comment
states that the language is confusing
because a ‘‘supervisor might believe it
would be permissible to photograph or
tape record a union meeting. Another
might say that their video camera
doesn’t use tape so it’s okay to use.’’ The
Board has determined that no change is
necessary. In the Board’s view, it is
unlikely that a reasonable supervisor
would construe this notice language
(which also says that it is unlawful to
‘‘spy on’’ employees’ peaceful union
activities) as indicating that it is
unlawful to videotape, but lawful to
tape record or photograph, such
activities. Supervisors are free to contact
the Board if they are unsure whether a
contemplated response to union activity
might be unlawful.
viii. Other Suggested Additions to
Illegal Employer Conduct
The Heritage Foundation suggests that
the Board add language to the notice
informing employees that if they choose
to be represented by a union, their
employer may not give them raises or
bonuses for good performance without
first bargaining with the union. The
comment suggests that the Board add
the following provision ‘‘if a union
represents you and your co-workers,
give you a pay raise or a bonus, or
reduce or dock your pay, without
negotiating with the union.’’ The Board
rejects this suggestion for the same
reason it rejects other comments
contending that the notice should
include the consequences of
unionization in the summary of NLRA
rights, above.
The National Immigration Law Center
suggests that the Board add the
following to the notice poster:
Under the NLRA, it is illegal for your
employer to: Report you or threaten to report
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you to Immigration and Customs
Enforcement (ICE) or to other law
enforcement authorities in order to
intimidate or retaliate against you because
you join or support a union, or because you
engage in concerted activity for mutual aid
and protection.
The Board finds it unnecessary to add
this statement. The notice states that it
is unlawful for an employer to ‘‘fire,
demote, or transfer you, or reduce your
hours or change your shift, or otherwise
take adverse action against you, or
threaten to take any of these actions,
because you join or support a union, or
because you engage in concerted
activity for mutual aid and protection
(emphasis added) [.]’’ Reporting or
threatening to report an employee in the
manner described in the comment
would be a form of adverse action or
threat thereof, and the Board believes
that it would be understood as such.
d. Examples of Illegal Union Activity
The proposed notice contained the
following examples of unlawful union
conduct:
Under the NLRA, it is illegal for a
union or for the union that represents
you in bargaining with your employer
to:
Threaten you that you will lose your job
unless you support the union.
Refuse to process a grievance because you
have criticized union officials or because you
are not a member of the union.
Use or maintain discriminatory standards
or procedures in making job referrals from a
hiring hall.
Cause or attempt to cause an employer to
discriminate against you because of your
union-related activity.
Take other adverse action against you
based on whether you have joined or support
the union.
75 FR 80419.
There were only a few comments
addressing specific changes to the
language in this section of the notice.
ALFA criticizes the provision that states
that a union may not ‘‘threaten you that
you will lose your job unless you
support the union,’’ because the
proposed language ‘‘fails to capture
Section 8(b)(1)(A)’s broader prohibition
against restraint and coercion.’’ The
comment suggests revising the language
to state that a union may not ‘‘[r]estrain
or coerce you in the exercise of your
right to refrain from joining a union by
threatening to inflict bodily harm or
following you to your home and
refusing to leave unless you sign a
union card.’’ That comment also
suggests adding a provision stating that
it is unlawful for a union to ‘‘promise
to waive your union initiation fee if you
agree to sign a union card before a vote
is taken.’’
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Another comment argues that the
illegal union conduct portion of the
notice fails to fully inform employees of
their rights as union members. 109 In
contrast, another comment states a
different position—that the list of illegal
union conduct ‘‘ostensibly relates only
to restraint or coercion by a union in a
unionized environment.’’ 110 The
comment further states that the Board
should have included examples of
‘‘union restraint or coercion in an
organizing setting’’ but gives no specific
examples.
ALFA suggests three changes to the
unlawful union activity section. First,
rather than say that the union may not
‘‘threaten you that you will lose your
job,’’ a more comprehensive statement
would be ‘‘threaten, harass, or coerce
you in order to gain your support for the
union.’’ The Board agrees, except as
regards ‘‘harass,’’ which is sometimes
used to characterize almost any sort of
union solicitation. Accordingly, the
statement will be modified to read
‘‘threaten or coerce you in order to gain
your support for the union.’’ Second,
the comment suggests changing ‘‘cause
or attempt to cause an employer to
discriminate against you’’ to
‘‘discriminate or attempt to discriminate
against you because you don’t support
a union.’’ The Board disagrees, because
the suggested change would shift the
focus of the provision away from the
sort of conduct contemplated in the
rule. See NLRA Section 8(b)(2), 29
U.S.C. 158(b)(2). Third, the comment
suggests changing ‘‘take other adverse
action against you based on whether
you have joined or support the union’’
to ‘‘take adverse action against you
because you have not joined or do not
support the union.’’ The Board agrees
and will modify this provision of the
notice accordingly.
Baker & McKenzie urges that a variety
of other examples of unlawful union
conduct be added to the notice,
including requiring nonmembers to pay
a fee to receive contract benefits,
disciplining members for engaging in
activity adverse to a union-represented
grievant, disciplining members for
refusing to engage in unprotected
activity, engaging in careless grievance
handling, failing to notify employees of
their Beck rights, requiring employees to
agree to dues checkoff instead of direct
payment, discriminatorily applying
hiring hall rules, and conditioning
continued employment on the payment
of a fine or dues in ‘‘right-to-work’’
states.
109 See comment of National Association of
Manufacturers.
110 See comment of ALFA.
As with the examples of unlawful
employer activity, the Board concludes
that the provisions concerning unlawful
union activity, as proposed, are accurate
and informative, and, as with the notice
as a whole, strike an appropriate
balance between being simultaneously
instructive and succinct. Moreover, the
Board finds it unnecessary to include
additional examples of unlawful
conduct so that the lists of employer
and union activity are the same length
because the notice describes the central
forms of unlawful conduct engaged in
by each type of entity. Still less is it
necessary to add a host of additional
examples of unlawful union conduct,
with the result that the list of such
conduct would be much longer than the
list of unlawful employer conduct. In
the Board’s view, the list of unlawful
union conduct in the proposed notice
fairly informs employees of the types of
conduct that a union is prohibited from
engaging in without providing
unnecessary or confusing examples.
Employees may contact the NLRB if
they believe a union has violated the
NLRA.
e. Collective-Bargaining Provision
The collective-bargaining provision of
the NPRM states that ‘‘if you and your
co-workers select a union to act as your
collective bargaining representatives,
your employer and the union are
required to bargain in good faith and in
a genuine effort to reach a written,
binding agreement setting your terms
and conditions of employment. The
union is required to fairly represent you
in bargaining and enforcing the
agreement.’’ 75 FR 80419.
The Board received only a few
comments on this provision of the
notice. Notably, COLLE requests the
inclusion of a limitation on the
provision that employees have the right
to bargain collectively, in order to
clarify that the employer’s obligation is
only to bargain in good faith and not
necessarily to reach an agreement. A
second comment suggests that the
notice inform employees that they have
the right to ‘‘sue a union for unfairly
representing the employee in
bargaining, contract administration, or a
discrimination matter.’’
The Board has decided that no
changes are necessary to the duty to
bargain paragraph. The Board is
satisfied that the proposed collectivebargaining
provision provides sufficient
guidance to employees about the
exercise of these rights while still
staying within the constraints set by a
necessarily brief employee notice. As to
the first comment, the notice states that
an employer and union have a duty to
‘‘bargain in good faith and in a genuine
effort to reach a written, binding
agreement.’’ As discussed above, by
referring to a ‘‘genuine effort’’ to reach
agreement, the notice necessarily
implies that the parties are not obliged
to actually reach one. The duty to
bargain in good faith has many
components. See NLRB v. Katz, 369 U.S.
736 (1962). And the suggestion that
employers do not have to agree to
certain proposals, although correct, does
not account for the line of cases that
suggest that an important ingredient in
good faith bargaining is a willingness to
compromise. See Phelps Dodge, 337
NLRB 455 (2002).
Turning to the suggestion that the
notice include language informing
employees of their right to ‘‘sue’’ the
union if it fails to represent them fairly,
the Board has concluded that the notice
sufficiently apprises employees of their
right to fair representation and of their
right to file unfair labor practice charges
with the Board should a union fail to
fulfill that duty. The rights that
employees have to sue unions directly
in court without coming to the Board
are beyond the scope of this rulemaking.
f. Coverage Provision
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In regard to coverage under the NLRA,
the proposed notice states:
The National Labor Relations Act covers
most private-sector employers. Excluded
from coverage under the NLRA are publicsector
employees, agricultural and domestic
workers, independent contractors, workers
employed by a parent or spouse, employees
of air and rail carriers covered by the Railway
Labor Act, and supervisors (although
supervisors that have been discriminated
against for refusing to violate the NLRA may
be covered). 75 FR 80419.
A comment from the National
Immigration Law Center suggests adding
the following language: ‘‘The NLRA
protects the above-enumerated rights of
all employees, irrespective of their
immigration status. That protection
extends to employees without work
authorization, though certain remedies
in those circumstances may be limited.
Employers cannot threaten you or
intimidate you on the basis of you
immigration status to prevent you from
joining or supporting a union, or
engaging in concerted activity for
mutual aid and protection.’’
The Board has decided not to amend
the coverage provision in the final
notice. Although the Board understands
that many immigrant employees may be
unsure whether they are covered by the
NLRA, the notice does not include a list
of covered employees. Including
specific coverage of immigrants, but not
other classes of employees, may cause
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confusion for many employees.
Currently, the language in the notice
tracks statutory language and provides
only the list of employees excluded
from coverage. As a result, those
employees not listed under the
exclusions will reasonably believe they
are covered employees under the
statute. Any employees who are unsure
of their status should contact a regional
office of the NLRB.
The final notice as modified is set
forth in the Appendix to Subpart A of
this rule.
2. Posting Issues
The Board proposed that the notice to
employees shall be at least 11 inches by
17 inches in size, and in such colors and
type size and style as the Board shall
prescribe. The proposed rule further
provides that employers that choose to
print the notice after downloading it
from the Board’s Web site must print in
color, and the printed notice shall be at
least 11 inches by 17 inches in size.
Proposed § 104.202(d) requires all
covered employers to post the employee
notice physically ‘‘in conspicuous
places, including all places where
notices to employees are customarily
posted.’’ Employers must take steps to
ensure that the notice is not altered,
defaced, or covered with other material.
Proposed § 104.202(e) states that the
Board will print the notice poster and
provide copies to employers on request.
It also states that employers may
download copies of the poster from the
Board’s Web site, http://www.nlrb.gov,
for their use. It further provides that
employers may reproduce exact
duplicates of the poster supplied by the
Board, and that they may also use
commercial poster services to provide
the employee notice consolidated onto
one poster with other Federally
mandated labor and employment
notices, as long as consolidation does
not alter the size, color, or content of the
poster provided by the Board. Finally,
employers that have significant numbers
of employees who are not proficient in
English will be required to post notices
of employee rights in the language or
languages spoken by significant
numbers of those employees. The Board
will make available posters containing
the necessary translations.
In addition to requiring physical
posting of paper notices, proposed
§ 104.202(f) requires that notices be
distributed electronically, such as by e-
mail, posting on an intranet or an
internet site, and/or other electronic
means, if the employer customarily
communicates with its employees by
such means. 111 An employer that
customarily posts notices to its
employees on an intranet or internet site
must display the required employee
notice on such a site prominently—i.e.,
no less prominently than other notices
to employees. The Board proposed to
give employers two options to satisfy
this requirement. An employer may
either download the notice itself and
post it in the manner described above,
or post, in the same manner, a link to
the Board’s Web site that contains the
full text of the required employee
notice. In the latter case, the proposed
rule states that the link must contain the
prescribed introductory language from
the poster, which appears in Appendix
to Subpart A, below. An employer that
customarily communicates with its
employees by e-mail will satisfy the
electronic posting requirement by
sending its employees an e-mail
message containing the link described
above.
The proposed rule provides that,
where a significant number of an
employer’s employees are not proficient
in English, the employer must provide
the required electronic notice in the
language the employees speak. This
requirement can be met either by
downloading and posting, as required in
§ 104.202(f), the translated version of
the notice supplied by the Board, or by
prominently displaying, as required in
§ 104.202(f), a link to the Board’s Web
site that contains the full text of the
poster in the language the employees
speak. The Board will provide
translations of that link. 75 FR 80417.
Section 104.203 of the proposed rule
provides that Federal contractors may
comply with the requirements of the
rule by posting the notices to employees
required under the Department of
Labor’s notice-posting rule, 29 CFR part
471. Id.
The Board solicited comments on its
proposed requirements for both physical
and electronic notice posting. In
addition, the Board solicited comments
on whether it should prescribe
standards regarding the size, clarity,
location, and brightness of the
electronic link, including how to
prescribe electronic postings that are at
least as large, clear, and conspicuous as
the employer’s other postings.
The Board received numerous
comments concerning the technical
requirements for posting the notices of
employee rights. Those comments
address the locations where notices
would be physically posted, physical
characteristics of the posters,
111 See J. Picini Flooring, 356 NLRB No. 9, slip op.
at 6 (2010).
requirements for posting in languages
other than English, details of the
requirement for electronic posting of
notices by employers that customarily
communicate with their employees
electronically, and ‘‘safe harbor’’
provisions for Federal contractors that
are already posting the Department of
Labor’s notice of NLRA rights.
a. Location of Posting
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Section 104.202(d) of the proposed
rule requires that the notice be posted
‘‘in conspicuous places, including all
places where notices to employees are
customarily posted.’’ Some employers
and their representatives, including law
firm Baker & McKenzie, comment that
the proposed rule does not define
‘‘customarily.’’ The Board responds that
the term is used in its normal meaning
of ‘‘ordinarily’’ or ‘‘usually,’’ as it has
been used in the Board’s remedial
orders for decades. 112 This standard is
consistent with the posting
requirements in the regulations and
statutes of other agencies. 113 Baker &
McKenzie’s comment contends that the
quoted phrase should read instead
‘‘where other legally-required notices to
employees are customarily posted.’’ The
Board disagrees. As under the
Department of Labor’s notice posting
requirement, 114 the Board’s final rule
clarifies that the notice must be posted
wherever notices to employees
regarding personnel rules and policies
are customarily posted and are readily
seen by employees, not simply where
other legally mandated notices are
posted.
A number of comments from
employers 115 and individuals take the
position that it is time to move away
from paper posters and to encourage
employees to inform themselves of their
rights through the Internet. Many
comments object that the posting
requirement will add to already
cluttered bulletin boards or necessitate
additional bulletin boards. 116 The Board
responds to these comments above in
section II, subsection C, Factual Support
for the Rule. The Council of Smaller
112 See, e.g., The Golub Corporation, 159 NLRB
355, 369 (1966).
113 See, e.g., 29 CFR 1903.2 (Occupational Safety
and Health Act); 29 CFR 1601.30 (Title VII of the
Civil Rights Act of 1964); 42 U.S.C. 2000e-10(a)
(Americans with Disabilities Act); 29 U.S.C. 2619(a)
(Family and Medical Leave Act).
114 75 FR 28386.
115 See, e.g., comments of Buffalo Wild Wings;
Associated Milk Producers, Inc.; Smitty’s, Inc.;
National Grocers Association; and Sorensen/Wille,
Inc.
116 See, e.g., comments of Dr. Pepper Snapple
Group; Georgia Caremaster Medical Services;
Homestead Village, Inc.; Exodus Designs &
Surfaces; Bonnie Dedmore State Farm.
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Enterprises further maintains that the
requirement to ensure that the notice is
conspicuous and not altered or defaced
imposes an unnecessary burden on
employers. Caremaster Medical
Services’ comment asks whether
periodic inspections of the notices will
be conducted and, if so, by whom.
Specifically, this comment expresses
concern that employers will be forced to
permit union officials to enter their
facilities to inspect the notices. The rule
does not provide for such inspections or
alter current standards regarding union
access to employers’ premises. Rather,
the Board contemplates that an
employer’s failure to comply with the
rule will be brought to the attention of
the employer or the Board by employees
or union representatives who are
lawfully on the premises.
The International Union of Operating
Engineers comments that the rule needs
to apply to the marine construction
industry, in which employees work at
remote sites and do not necessarily see
a posting in the office. Another
comment similarly states that the rule is
not practical for small employers with
dispersed employees, e.g., trucking or
insurance companies. 117 Similarly, one
comment contends that the requirement
is burdensome for construction
employers, whose employees report to
various worksites. 118 The Board
recognizes that certain work situations,
such as those mentioned in the
comments, present special challenges
with regard to physical posting.
However, the Board concludes that
these employers must nonetheless post
the required notice at their work
premises in accordance with the
proposed rule. Electronic posting will
also aid the employers in providing the
notice to their employees in the manner
in which they customarily communicate
with them.
TLC Companies contends that
professional employer organizations
(PEOs) such as itself should be exempt
from the rule’s requirements. It explains
that PEOs are ‘‘co-employers’’ of a client
employer’s employees, providing
payroll and other administrative
services. However, it asserts that PEOs
have no control over the client
employer’s worksite. Accordingly, TLC
Companies is concerned that a PEO
could be found liable for its client’s
failure to post the notice. The Board
contemplates that employers will be
required to physically post a notice only
on their own premises or at worksites
where the employer has the ability to
117 Comment of TLC Companies.
118 Comment of NAI Electrical Contractors.
post a notice or cause a notice to be
posted directed to its own employees.
Retail Industry Leaders Association
asks whether the rule would apply to
overseas employees of American
employers. The answer to that question
is generally ‘‘no’’; the Board’s
jurisdiction does not extend to
American employees engaged in
permanent employment abroad in
locations over which the United States
has no legislative control. See Computer
Sciences Raytheon, 318 NLRB 966
(1995). Employers of employees who are
working abroad only temporarily are not
required to post the notice in foreign
workplaces.
b. Size and Form Requirements
Many comments from organizations
and individuals object to the 11x17-inch
size prescribed by the proposed rule. 119
They argue that most employers do not
have the capacity to make 11x17-inch
color copies and will have to use
commercial copy services, which some
contend are expensive. A human
resources official also asserts that other
required notices are smaller, and that
the larger poster will be more eyecatching,
implying that NLRA rights are
more important. Other comments
support the proposed 11x17-inch size,
stating that the notice should stand out
and be in large print, with one comment
specifying that the title should be
larger. 120 The AFL–CIO argues that
employers should not be permitted to
download the notice from the Board’s
Web site if their limited printing
capacity would make it less eyecatching.
A few comments contend that the
prescribed size will make it difficult to
include in consolidated posters of
various statutory rights, as the proposed
rule permits. 121 One comment urges the
Board to follow the ‘‘3′ rule,’’ according
to which a notice is large enough if it
can be read from a distance of 3 feet, 122
and another suggests only a legibility
requirement. 123 One comment states
that minor deviations, such as 1 ⁄4 inch,
should not be deemed violations. 124
Another comment expresses a concern
that a large, prominent poster could
cause a few unhappy employees to
begin activity that could result in
divisiveness in a small facility. 125
119 See, e.g., comment of Associated General
Contractors (AGC) of Iowa.
120 See, e.g., comments of AFL–CIO and three
Georgetown University Law Center students.
121 See, e.g., comment of Sinnissippi Centers.
122 AGC of Iowa.
123 Sinnissippi Centers.
124 National Council of Agricultural Employers.
125 Mercy Center Nursing Unit Inc.
The Board has decided to retain the
11x17-inch poster size. As the NPRM
states, the Board will furnish paper
copies of the notice, at no charge, to
employers that ask for them. Employers
that prefer to download and print the
notice from the Board’s Web site will
have two formats available: a one-page
11x17-inch version and a two-page 8
1
⁄2x11-inch version, which must be
printed in landscape format and taped
together to form the 11x17-inch poster.
In response to the comments objecting
to the added expense of obtaining color
copies through outside sources, the
Board has revised the rule to delete the
requirement that reproductions of the
notice be in color, provided that the
reproductions otherwise conform to the
Board-provided notice. Accordingly, the
Board concludes that obtaining copies
of the notice will not be difficult or
expensive for employers.
The Board finds no merit to the other
objections to the 11x17-inch poster size.
Contrary to some comments, the Board
does not believe that employees would
think that NLRA rights are more
important than other statutory rights,
merely because the notice of NLRA
rights is somewhat larger than notices
prescribed under some other statutes. It
would seem that, upon learning of all of
their rights in the workplace, employees
will determine from their understanding
of the rights themselves, rather than the
size of the various posters, which rights
(if any) are more important to them than
others. In the Board’s view, adopting a
subjective ‘‘3′ rule’’ or a ‘‘legibility
standard’’ could lead to disagreements
over whether a particular poster was
‘‘legible’’ or could be read at a distance
of 3 feet. In addition, if, as some
comments contend (without citing
specifics), the size of the Board’s notice
will pose a problem for manufacturers
of consolidated posters to include it
with posters detailing other workplace
rights, that would seem to be a problem
best left to those manufacturers to solve.
c. Language Issues
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The proposed rule requires that,
‘‘[w]here a significant portion of an
employer’s workforce is not proficient
in English, the employer must provide
the notice in the language the
employees speak.’’ This is the same
standard applied in the Department of
Labor’s notice of NLRA rights for federal
contractors (29 CFR 471.2(d)) and in the
notice required under the Family and
Medical Leave Act (29 CFR 825.300(4)).
Many comments support the
requirement and availability of
translated notices, particularly as an
essential way of informing immigrant
Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations
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employees about their rights. 126 But
several comments complain that the
rule does not define ‘‘significant.’’ 127
Baker & McKenzie proposes that the
standard be 40 percent specifically of
the employer’s production and
maintenance workforce, while the
National Immigration Law Center
proposes a 5 percent standard. Another
comment urges that translated notices
be required whenever any of the
employees are not proficient in
English. 128 The U.S. Chamber of
Commerce asserts that a safe harbor is
needed for employers when a notice in
a particular language is not yet available
from the Board. Moreover, a few
comments contend that the Board
should also provide Braille notices for
vision-impaired employees, as well as
audio versions for illiterate employees,
and versions of the notice that are
adaptable to assistive technologies. 129
One individual proposes that the rule
mandate that employers read the notice
to employees when they are hired and
to all employees annually.
Having carefully considered the
comments, the Board has decided to
define ‘‘significant’’ in terms of foreignlanguage
speakers as 20 percent or more
of an employer’s workforce. Thus, if as
many as 20 percent of an employer’s
employees are not proficient in English
but speak the same foreign language, the
employer must post the notice in that
language, both physically and
electronically (if the employer is
otherwise required to post the notice
electronically). If an employer’s
workforce includes two or more groups
constituting at least 20 percent of the
workforce who speak different
languages, the employer must either
physically post the notice in each of
those languages or, at the employer’s
option, post the notice in the language
spoken by the largest group of
employees and provide each employee
in each of the other language groups a
copy of the notice in the appropriate
language. If such an employer is also
required to post the notice
electronically, it must do so in each of
those languages. If some of an
employer’s employees speak a language
not spoken by employees constituting at
least 20 percent of the employer’s
workforce, the employer is encouraged,
but not required, either to provide the
126 See, e.g., comments of National Immigration
Law Center, Legal Aid Society—Employment Law
Center, and La Raza Centro Legal; Filipino
Advocates for Justice.
127 See, e.g., comments of COLLE; Food Marketing
Institute (FMI).
128 Georgetown law students.
129 See, e.g., Baker & McKenzie; Heritage
Foundation; Georgetown law students.
notice to those employees in their
respective language or languages or to
direct them to the Board’s Web site,
http://www.nlrb.gov, where they can
obtain copies of the notice in their
respective languages. The Board has
also decided to add to the notice
instructions for obtaining foreignlanguage
translations of the notice.
Employers will be required to request
foreign-language notices from the Board
or obtain them from the Board’s Web
site in the same manner as the Englishlanguage
notice. If an employer requests
from the Board a notice in a particular
language in which the notice is not
available, the requesting employer will
not be liable for non-compliance with
the rule until the notice becomes
available in that language.
With respect to employees who are
vision-impaired or those who are
illiterate, employers may consult the
Board’s Regional Office on a case-bycase
basis for guidance on appropriate
methods of providing the required
notice, including by audio recording.
d. Electronic Posting
Many employer comments oppose the
requirement for electronic notice. The
Coalition for a Democratic Workplace
points out that other agencies do not
require both electronic and physical
posting and asserts that only one
method is necessary. For example, the
Coalition notes that the Family and
Medical Leave Act notice obligation is
satisfied by electronic posting alone,
and other statutes do not mention
electronic posting. The National Council
of Agricultural Employers urges the
Board to require electronic posting only
if the employer posts other statutory or
regulatory notices in that fashion.
Another proposes that employers be
permitted to choose either physical or
electronic posting. The National
Association of Manufacturers remarks
that the proposed rule breaks new
ground for using an employer’s email
system to communicate information
about ‘‘union membership.’’ The U.S.
Chamber of Commerce suggests that this
aspect of the rule would chill
employers’ use of new technologies. On
the other hand, the AFL–CIO and
several other commenters 130 support
electronic as well as physical posting;
the Center for American Progress Action
Fund, among others, points out that
electronic communications at work are
standard now.
After carefully considering these
comments, the Board concludes that
electronic posting will substantially
130 See, e.g., comments of Gibson, Dunn, Cohen,
Leifer & Yellig, P.C.; Beeson, Tayer & Bodine.
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assist in providing the prescribed notice
to employees. As some comments state,
electronic communication is now a
routine practice in many workplaces
and the source of much information
from employers to their employees.
However, the Board has clarified the
final rule to mandate only that, if an
employer customarily communicates
personnel rules or policies to its
employees in that manner, it must also
do so with respect to the notice of
employee rights under the NLRA. The
concern that the rule will discourage
employers from using new technologies
is apparently not widely shared and, in
the Board’s view, is implausible.
Although the Board recognizes that
some other statutes and regulations do
not require electronic notice, it notes
that they generally predated the routine
use of electronic communications in the
workplace. Having only recently begun
ordering electronic posting of remedial
notices, 131 the Board has limited
experience in this area, and employers
are encouraged to contact the local
Regional Office with questions about
this provision. The Board does not agree
that employers should be permitted to
choose whether to provide physical or
electronic notice, because some
employers could select the less effective
of these alternatives, thus undermining
the purpose of the rule. Finally, the
rights stated in the notice are not
accurately described as pertaining solely
to union membership, and the notice is
not intended to promote union
membership or union representation.
Rather, the notice addresses a broad
range of employee legal rights under the
NLRA, which involve protected
concerted activity as well as union
activity in both organized and
unorganized workplaces, and also the
right to refrain from any such activity.
Many employer comments note that
the proposed rule also does not define
‘‘customarily’’ as it pertains to
electronic posting in § 104.202(f), i.e.,
the type and degree of communication
that triggers the requirement. 132
Numerous employers also participated
in a postcard campaign objecting,
among other things, that employers use
a wide variety of technology to
communicate with employees and that
the rule could require them to use all
methods to convey the notice. 133 For
131 J. Picini Flooring, 356 NLRB No. 9 (2010).
132 See, e.g., comments of International
Foodservice Distributors Association (IFDA);
Associated Builders and Contractors; Los Angeles
County Business Federation; National Roofing
Contractors Association.
133 See, e.g., comments of American Home
Furnishings Alliance; Seawright Custom Precast;
Continued
54030 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations
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example, they ask whether an employer
that occasionally uses text messaging or
Twitter to communicate with employees
would have to use those technologies
and, if so, how they would be able to
comply with the rule, in view of the
length restrictions of these media. The
U.S. Chamber of Commerce raises the
same issue regarding faxing, voice mail,
and instant messaging. The National
Roofing Contractors Association notes
that some employers use email to
communicate with certain employees,
while other employees have no access to
email during their work day. As to email
communication itself, an individual
observes that many employees change
jobs every 3 to 4 years, and an email
reaches only those in the workforce at
a specific time. The same comment
notes that the proposed rule does not
state when or how often email notice
should be provided. Three Georgetown
law students recommend that the rule
mandate email as well as intranet notice
to employees when it goes into effect
and written notice to new employees
within a week of their starting
employment.
The Board responds that, as discussed
above regarding the location of posting,
‘‘customarily’’ is used in its normal
meaning. This provision of the rule
would not apply to an employer that
only occasionally uses electronic means
to communicate with employees.
However, in view of the numerous
comments expressing concern over the
proposed rule’s email posting
requirements, the Board has decided not
to require employers to provide the
notice to employees by means of email
and the other forms of electronic
communication listed in the previous
paragraph. In the Board’s judgment, the
potential for confusion and the prospect
of requiring repeated notifications in
order to reach new employees outweigh
the benefits that could be derived at the
margin from such notifications. All
employers subject to the rule will be
required to post the notice physically in
their facilities; and employers who
customarily post notices to employees
regarding personnel rules or policies on
an internet or intranet site will be
required to post the Board’s notice on
those sites as well. Moreover, those
notices (unlike the Board’s election and
remedial notices) must remain posted;
thus, it is reasonable to expect that even
though some employees may not see the
notices immediately, more and more
will see them and learn about their
NLRA rights as time goes by.
Accordingly, the only electronic
Mount Sterling, Kentucky Chamber of Commerce;
U.S. Xpress, Inc.
postings required under the final rule
will be those on internet or intranet
sites.
Many comments address the
characteristics of electronic posting, as
prescribed in § 104.202(f). In the NPRM,
the Board proposed not to prescribe the
size, clarity, location, or brightness of an
electronic notice or link to the notice,
but rather require that it be at least as
prominent as other electronic notices to
employees, as the Department of Labor’s
rule requires. No comments suggest
more specific requirements; the
Michigan Health & Hospital Association
argues that such requirements would
result in inadvertent noncompliance.
The Board has decided to adopt the
Department of Labor’s approach, as
proposed in the NPRM.
Baker & McKenzie urges that the title
of the link in the proposed rule be
changed to ‘‘Employee Rights under the
National Labor Relations Act’’ rather
than ‘‘Important Notice about
Employees Rights to Organize and
Bargain Collectively with Their
Employers.’’ The Board agrees and has
revised the rule accordingly.
A comment from Vigilant states that
a link to the Board’s Web site, which is
one means of electronic posting, should
not be required to include the
introductory language of the notice. The
Board agrees, noting that the
Department of Labor takes this
approach, and will not require that
electronic links to the Board’s Web site
include the introductory language.
For the foregoing reasons, the Board
has decided to retain the posting
requirements as proposed in the NPRM,
modified as indicated above.
e. Compliance With the Department of
Labor’s Rule
Several comments opposing the
proposed rule urge that, if the rule
becomes final, the Board should retain
the ‘‘safe harbor’’ provided for Federal
contractors that comply with the
Department of Labor’s notice posting
rule. 134 However, the U.S. Chamber of
Commerce states that some employers
post the Department of Labor’s notice at
facilities where it is not required or
where Federal contract work is
performed only sporadically. It
questions whether such employers must
replace the Department of Labor’s notice
with the Board’s when no contract work
is being performed, or whether they can
comply with the Board’s rule by leaving
the Department of Labor’s notice in
place. The Chamber proposes that
134 See, e.g., comments of IFDA; Estes; The Sack
Company; National Roofing Contractors
Association.
employers be allowed to choose to
maintain the Department of Labor’s
notice, although another comment
asserts that employees might think that
the notice is no longer applicable
because of the lack of a current contract.
Another comment raises the possibility
that either the Board or the Department
of Labor could decide to change its
notice and emphasized that they need to
be identical in order to provide the safe
harbor. The Board responds that a
Federal contractor that complies with
the Department of Labor’s noticeposting
rule will be deemed in
compliance with the Board’s
requirement. 135
3. Exceptions
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The rule applies only to employers
that are subject to the NLRA. Under
NLRA Section 2(2), ‘‘employer’’
excludes the United States government,
any wholly owned government
corporation, any Federal Reserve Bank,
any State or political subdivision, and
any person subject to the Railway Labor
Act, 45 U.S.C. 151 et seq. 29 U.S.C.
152(2). Thus, under the proposed rule,
those excluded entities are not required
to post the notice of employee rights.
The proposed rule also does not apply
to entities that employ only individuals
who are not considered ‘‘employees’’
under the NLRA. See Subpart A, below;
29 U.S.C. 152(3). Finally, the proposed
rule does not apply to entities over
which the Board has been found not to
have jurisdiction, or over which the
Board has chosen through regulation or
adjudication not to assert
jurisdiction. 136 The Board proposed that
all employers covered under the NLRA
would be subject to the notice posting
rule. 75 FR 80413.
The Coalition for a Democratic
Workplace argues that the final rule
cannot be applied to religiouslyaffiliated
employers. The Coalition
argues that assertion of jurisdiction
would ‘‘substantially burden [such
employers’] exercise of religion in
violation of both the First Amendment
and the Religious Freedom Restoration
Act.’’ Similarly, Seyfarth Shaw contends
that religiously-affiliated healthcare
135 A few comments ask whether the Board’s rule
would preempt the Department of Labor’s rule.
Because the answer to that question would not
affect the validity of the Board’s rule, the Board
finds it unnecessary to take a position on that issue
in this proceeding.
136 The proposed rule excludes small businesses
whose impact on interstate commerce is de minimis
or so slight that they do not meet the Board’s
discretionary jurisdiction requirements. See
generally An Outline of Law and Procedure in
Representation Cases, Chapter 1, found on the
Board’s Web site, http://www.nlrb.gov, and cases
cited therein.
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institutions should be excluded from
coverage if they are nonprofit and hold
themselves out to the public as being
religious.
The Board examines jurisdictional
issues on a case-by-case basis, and the
Board’s jurisdiction jurisprudence is
highly complex. The Board has asserted
jurisdiction over some religiouslyaffiliated
employers in the past, but has
declined to assert jurisdiction over other
religiously-affiliated employers. See,
e.g., Ecclesiastical Maintenance Service,
320 NLRB 70 (1995), and St. Edmund’s