will be $64.40. It is unlikely in the
extreme that this minimal cost would
lead to either the short- or long-term
insolvency of any business entity, or
place small employers at a competitive
disadvantage. Since this rule applies
only to organizations within the NLRB’s
jurisdictional standards, the smallest
employer subject to the rule must have
an annual inflow or outflow across state
lines of at least $50,000. Siemons
Mailing Service, 122 NLRB 81 (1959).
Given that the Board estimates that this
rule will cost, on average, $64.40, the
total cost for the smallest affected
companies would be an amount equal to
less than two-tenths of one percent of
that required annual inflow or outflow
(.13%). The Board concludes that such
a small percentage is highly unlikely to
adversely affect a small business. 193
And, in the Board’s judgment, the social
benefits of employees’ (and employers’)
becoming familiar with employees’
NLRA rights far outweigh the minimal
costs to employers of posting notices
informing employees of those rights. 194
For all the foregoing reasons, the
Board has concluded that the final rule
will not have a significant economic
impact on a substantial number of small
entities. 5 U.S.C. 605.
As discussed in the NPRM, because it
assumes that a substantial number of
small businesses will be required to
comply with the rule, the Board
preliminarily considered alternatives
that would minimize the impact of the
rule, including a tiered approach for
small entities with only a few
employees. However, as it also
explained, the Board rejected those
alternatives, concluding that a tiered
approach or an exemption for some
small entities would substantially
undermine the purpose of the rule
because so many employers would be
exempt under the SBA definitions.
Given the very small estimated cost of
compliance, it is possible that the
burden on a small business of
determining whether it fell into a
particular tier might exceed the burden
of compliance. The Board further
pointed out that Congress gave the
Board very broad jurisdiction, with no
suggestion that it wanted to limit
coverage of any part of the NLRA to
only larger employers. The Board also
believes that employees of small
employers have no less need of a Board
notice than have employees of larger
employers. Finally, the Board’s
jurisdictional standards mean that very
small employers will not be covered by
the rule in any case. 75 FR 80416. (A
summary of the Board’s discretionary
jurisdictional standards appears in
§ 104.204, below.) Thus, although
193 In reaching this conclusion, the Board believes
it is likely that employers that might otherwise be
significantly affected even by the low cost of
compliance under this rule will not meet the
Board’s jurisdictional requirements, and
consequently those employers will not be subject to
this rule.
194 See further discussion in section II, subsection
C, Factual Support for the Rule, above.
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several comments urge that small
employers be exempted from the rule,
the Board remains persuaded, for the
reasons set forth in the NPRM, that such
an exemption is unwarranted. 195
Some comments contend that, in
concluding that the proposed rule will
not have a significant impact on small
employers, the Board understates the
rule’s actual prospective costs. One
comment, from Baker & Daniels LLP,
argues that the Board improperly
focuses solely on the cost of complying
with the rule—i.e., of printing and
posting the notice—and ignored the
‘‘actual economic impact of the rule’s
effect and purpose.’’ According to this
comment, it is predictable that, as more
employees become aware of their NLRA
rights, they will file more unfair labor
practice charges and elect unions to
serve as their collective-bargaining
representatives. The comment further
asserts that the Board has ignored the
‘‘economic realities of unionization,’’
specifically that union wages are
inflationary; that unions make business
less flexible, less competitive, and less
profitable; and that unions cause job
loss and stifle economic recovery from
recessions. Accordingly, this comment
contends that ‘‘the Board’s RFA
certification is invalid, and [that] the
Board must prepare an initial regulatory
flexibility analysis.’’ Numerous other
comments echo similar concerns, but
without reference to the RFA.
The Board disagrees with the
comment submitted by Baker & Daniels
LLP. 196 Section 605(b) of the RFA states
that an agency need not prepare an
initial regulatory flexibility analysis if
the agency head certifies that the rule
195 Cass County Electric Cooperative says that,
after estimating the average cost of compliance, ‘‘the
NLRB quickly digresses into an attempt to estimate
the cost of the proposed rule on only small
businesses.’’ The Board responds that in estimating
the cost of the rule on small businesses, it was
doing what the RFA explicitly requires (and that
focusing on small businesses, which comprise more
than 99 percent of potentially affected firms, is
hardly a ‘‘digression’’). The comment also asserts
that the Board concluded ‘‘that the cost of
estimating the implementation cost will likely
exceed the cost of implementation, and thus is not
warranted. At best, this is a poor excuse to justify
the rule.’’ This misstates the Board’s observation
that ‘‘Given the very small estimated cost of
compliance, it is possible that the burden on a small
business of determining whether it fell into a
particular tier might exceed the burden of
compliance.’’ This observation was one of the
reasons why the Board rejected a tiered approach
to coverage for small entities, not an ‘‘excuse to
justify the rule.’’ 75 FR 80416.
196 In any event, the comment from Baker &
Daniels LLP and related comments are difficult to
square with the assertions made in numerous other
comments that the notice posting is unnecessary
because employees are already well aware of their
NLRA rights and have made informed decisions not
to join unions or seek union representation.
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will not have a significant economic
impact on a substantial number of small
entities. 5 U.S.C. 605(b) (emphasis
added). The Board understands the
‘‘economic impact of * * * the rule’’ to
refer to the costs to affected entities of
complying with the rule, not to the
economic impact of a series of
subsequent decisions made by
individual actors in the economy that
are neither compelled by, nor the
inevitable result of, the rule. 197 Even if
more employees opt for union
representation after learning about their
rights, employers can avoid the adverse
effects on business costs, flexibility, and
profitability predicted by Baker &
Daniels LLP and other commenters by
not agreeing to unions’ demands that
might produce those effects. 198
The Board finds support for this view
in the language of Section 603 of the
RFA, which lists the items to be
included in an initial regulatory
flexibility analysis if one is required. 5
U.S.C. 603. Section 603(a) states only
that such analysis ‘‘shall describe the
impact of the proposed rule on small
entities.’’ 5 U.S.C. 603(a). However,
Section 603(b) provides, as relevant
here, that ‘‘[e]ach initial regulatory
flexibility analysis * * * shall
contain—* * *
‘‘(4) a description of the projected
reporting, recordkeeping and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record[.]’’ 5
U.S.C. 603(b)(4) (emphasis added). The
Small Business Administration cites, as
examples of ‘‘other compliance
requirements,’’
(a) Capital costs for equipment needed to
meet the regulatory requirements; (b) costs of
modifying existing processes and procedures
to comply with the proposed rule; (c) lost
sales and profits resulting from the proposed
rule; (d) changes in market competition as a
result of the proposed rule and its impact on
small entities or specific submarkets of small
entities; (e) extra costs associated with the
payment of taxes or fees associated with the
proposed rule; and (f) hiring employees
dedicated to compliance with regulatory
requirements. 199
Thus, the ‘‘impact’’ on small entities
referred to in Section 603(a) refers only
197 For RFA purposes, the relevant economic
impact on small entities is the impact of
compliance with the rule. Mid-Tex Electric
Cooperative, Inc. v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985), cited in SBA Guide, above, at 77.
198 NLRA Section 8(d) expressly states that the
obligation to bargain in good faith ‘‘does not compel
either party to agree to a proposal or require the
making of a concession[.]’’ 29 U.S.C. 158(d).
199 SBA Guide, above, at 34.
to the rule’s projected compliance costs
to small entities (none of which would
result from posting a workplace notice),
not the kinds of speculative and indirect
economic impact that Baker & Daniels
LLC invokes. 200
Associated Builders and Contractors,
Inc. (ABC) and Retail Industry Leaders
Association (RILA) contend that the
Board’s RFA analysis fails to account for
the costs of electronic notice posting,
especially for employers that
communicate with employees via
multiple electronic means. Both
comments deplore what they consider
to be the rule’s vague requirements in
this respect. ABC argues that clear
guidance is needed, and that the Board
should withdraw the electronic notice
posting requirements until more
information can be gathered. RILA
asserts that ‘‘[d]eciphering and
complying with the Board’s
requirements would impose significant
legal and administrative costs and
inevitably result [in] litigation as parties
disagree about when a communication
is ‘customarily used,’ and whether and
when employees need to be informed
through multiple communications.’’
Numerous comments assert that
employers, especially small employers
that lack professional human resources
staff, will incur significant legal
expenses as they attempt to comply
with the rule. For example, Fisher and
Phillips, a management law firm, urges
that the cost of legal fees should be
included in assessing the economic
impact of the proposed rule: ‘‘[I]t might
be considered naïve to assume that a
significant percentage of small
employers would not seek the advice of
counsel, and it would be equally naïve
to assume that a significant percentage
of those newly-engaged lawyers could
be retained for as little as $31.02/hour.’’
Those comments are not persuasive.
The choice to retain counsel is not a
requirement for complying with the
rule. This is not a complicated or
nuanced rule. The employer is only
required to post a notice provided by
the Board in the same manner in which
that employer customarily posts notices
to its employees. The Board has
explained above what the rule’s
electronic posting provisions require of
employers in general, and it has
simplified those provisions by
eliminating the requirement that notices
be provided by email and many other
forms of electronic communication. 201 It
200 Baker & Daniels LLP cites no authority to
support its contention that the RFA is concerned
with costs other than the costs of compliance with
the rule, and the Board is aware of none.
201 Contrary to ABC’s and RILA’s assertions, the
Board did estimate the cost of complying with the
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should not be necessary for employers,
small or large, to add human resources
staff, retain counsel, or resort to
litigation if they have questions
concerning whether the proposed rule
applies to them or about the
requirements for technical compliance
with the rule, including how the
electronic posting provisions
specifically affect their enterprises. 202
Such questions can be directed to the
Board’s regional offices, either by
telephone, personal visit, email, or
regular mail, and will be answered free
of charge by representatives of the
Board. 203
Cass County Electric Cooperative
argues that the Board failed to take into
account legal expenses that employers
will incur if they fail to ‘‘follow the
letter of the proposed rule.’’ The
comment urges that the Board should
estimate the cost to businesses ‘‘should
they have to defend themselves against
an unfair labor practice for failure to
comply with the rule, no matter what
the circumstances for that failure might
be,’’ presumably including failures to
post the notice by employers that are
unaware of the rule and inadvertent
failures to comply with technical
posting requirements. International
Foodservice Distributors Association
contends that the Board also should
have considered the costs of tolling the
statute of limitations when employers
fail to post the notice. However, the
costs referred to in these comments are
costs of not complying with the rule, not
compliance costs. As stated above, for
RFA purposes, the relevant economic
analysis focuses on the costs of
complying with the rule. 204
rule’s electronic notice posting requirements; its
estimated average cost of $62.04 specifically
included such costs. 75 FR 80415. Although ABC
faults the Board for failing to issue a preliminary
request for information (RFI) concerning the ways
employers communicate with employees
electronically, the Board did ask for comments
concerning its RFA certification in the NPRM, id.
at 80416. In this regard, ABC states only that ‘‘many
ABC member companies communicate with
employees through email or other electronic
means,’’ which the Board expressly contemplated
in the NPRM, id. at 80413, and which is also the
Board’s practice with respect to communicating
with its own employees. If ABC has more specific
information it has failed to provide it. In any event,
the final rule will not require email or many other
types of electronic notice.
202 Association of Corporate Counsel contends
that employers will have to modify their policies
and procedures manuals as a result of the rule. The
Board questions that contention, but even if some
employers do take those steps, they would not be
a cost of complying with the rule.
203 Fisher and Phillips also suggest that the Board
failed to take into account the effect that the
proposed rule would have on the Board’s own case
intake and budget. The RFA, however, does not
require an estimate of the economic effects of
proposed rules on Federal agencies.
204 See fn. 197, above.
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Some comments assert that the
content of the notice will prompt
employee questions, which managers
and supervisors will have to answer,
and be trained to answer, and that the
Board failed to account for the cost of
such training and discussions in terms
of lost work time. 205 Other comments
contend that employers will incur costs
of opposing an increased number of
union organizing campaigns. 206
Relatedly, several comments state that
employers should be allowed to, and/or
will respond to the notice by informing
employees of aspects of unionization
and collective bargaining that are not
covered by the notice; some suggest that
employers may post their own notices
presenting their point of view. 207 (A few
comments, by contrast, protest that
employers will be prohibited from
presenting their side of the issues raised
by the posting of notices.) The Board
responds that any costs that employers
may incur in responding to employee
questions, in setting forth the
employers’ views on unions and
collective bargaining, or in opposing
union organizing efforts will be incurred
entirely at the employers’ own volition;
they are not a cost of complying with
the rule.
As discussed above, many comments
express concerns that union supporters
will tear down the notices in order to
expose employers to 8(a)(1) liability for
failing to post the notices. Some of these
comments also contend that, as a result,
employers will have to spend
considerable time monitoring the
notices to make sure that they are not
torn down, or incur additional costs of
installing tamper-proof bulletin boards.
One commenter predicts that his
employer will have to spend $20,000 for
such bulletin boards at a single facility,
or a total of $100,000 at all of its
facilities, and even then will have to
spend two hours each month
monitoring the postings. For the reasons
discussed above, the Board is not
convinced at this time that the problem
of posters being torn down is anything
more than speculative, and accordingly
is inclined to discount these predictions
substantially. In any event, the rule
requires only that employers ‘‘take
reasonable steps’’—not every
conceivable step—to ensure that the
205 See, e.g., comments of Cass County Electric
Cooperative and Baker & McKenzie. The latter
estimates that each private sector employee will
spend at least an hour attending meetings
concerning the content of the notice, and that the
cost to the economy in terms of lost employee work
time will be $3.5 billion.
206 See, e.g., comment of Dr. Pepper Snapple
Group.
207 See, e.g., comments of Metro Toyota and
Capital Associated Industries, Inc.
notice is not defaced or torn down. The
rule does not require, or even suggest,
that employers must spend thousands of
dollars to install tamper-proof bulletin
boards or that employers must
constantly monitor the notice. 208
One comment contends that most
small employers do not have 11 x 17-
inch color printers, and therefore will
have to have the posters printed
commercially at a cost that, alone,
assertedly will exceed the Board’s
estimate of the cost of the rule. The
Board understands the concerns of this
small employer. The Board points out
that it will furnish a reasonable number
of copies of the notice free of charge to
any requesting employer. Moreover, as
explained above, employers may
reproduce the notice in black-and-white
and may print the notice on two
standard-sized, 8.5 x 11-inch pages and
tape or bind them together, rather than
having them printed commercially.
A number of comments argue that the
rule will lead to workplace conflict. For
example, the comment of Wiseda
Corporation contains the following:
Unnecessary Confusion and Conflict in the
Workplace. The labor law terms and
industrial union language of the proposed
notice (such as hiring hall and concerted
activity) present an unclear and adversarial
picture to employees. Most non-union
employers like us, who wish to remain nonunion,
encourage cooperative problem
solving. In a modern non-union workplace,
to require such a poster encouraging strikes
and restroom leaflets is disrespectful of the
hard work and good intentions of employers,
management, and employees. The proposed
poster would exist alongside other company
notices on problem-solving, respect for
others, resolving harassment issues, etc., and
would clearly be out of character and
inappropriate. (Emphasis in original.)
Another comment puts it more bluntly:
‘‘The notice as proposed is more of an
invitation to cause employee/employer
disputes rather than an explanation of
employee rights.’’ The Board’s response
is that the ill effects predicted in these
comments, like the predicted adverse
effects of unionization discussed above,
are not costs of compliance with the
rule, but of employees’ learning about
their workplace rights. In addition,
Congress, not the Board, created the
subject rights and did so after finding
that vesting employees with these rights
would reduce industrial strife.
B. Paperwork Reduction Act (PRA) 209
The final rule imposes certain
minimal burdens associated with the
208 Contrary to one comment’s suggestion, no
employer will be ‘‘bankrupted’’ by fines imposed if
the notice is torn down. As explained above, the
Board does not have the authority to impose fines.
209 44 U.S.C. 3501 et seq.
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posting of the employee notice required
by § 104.202. As noted in § 104.202(e),
the Board will make the notice
available, and employers will be
permitted to post copies of the notice
that are exact duplicates in content,
size, format, and type size and style.
Under the regulations implementing the
PRA, ‘‘[t]he public disclosure of
information originally supplied by the
Federal government to [a] recipient for
the purpose of disclosure to the public’’
is not considered a ‘‘collection of
information’’ under the Act. See 5 CFR
1320.3(c)(2). Therefore, contrary to
several comments, the posting
requirement is not subject to the
PRA. 210
The Board received no comments
suggesting that the PRA covers the costs
to the Federal government of
administering the regulations
established by the proposed rule.
Therefore, the NPRM’s discussion of
this issue stands.
Accordingly, this rule does not
contain information collection
requirements that require approval by
the Office of Management and Budget
under the PRA (44 U.S.C. 3507 et seq.).
C. Congressional Review Act (CRA) 211
This rule is a ‘‘major rule’’ as defined
by Section 804(2) of the Small Business
Regulatory Enforcement Fairness Act of
1996 (Congressional Review Act),
because it will have an effect on the
economy of more than $100 million, at
least during the year it takes effect. 5
U.S.C. 804(2)(A). 212 Accordingly, the
210 The California Chamber of Commerce and the
National Council of Agricultural Employers dispute
this conclusion. They assert that the PRA
distinguishes between the ‘‘agencies’’ to which it
applies and the ‘‘Federal government,’’ and
therefore that the exemption provided in 5 CFR
1320.3(c)(2) applies only to information supplied by
‘‘the actual Federal government,’’ not to information
supplied by a Federal agency such as the Board.
The flaw in this argument is that there is no such
legal entity as ‘‘the [actual] Federal government.’’
What is commonly referred to as ‘‘the Federal
government’’ is a collection of the three branches
of the United States government, including the
departments of the executive branch, and the
various independent agencies, including the Board.
If ‘‘the Federal government’’ can be said to act at
all, it can do so only through one or more of those
entities—in this instance, the Board—and that is
undoubtedly the meaning that the drafters of 5 CFR
1320(c)(2) meant to convey.
211 5 U.S.C. 801 et seq.
212 A rule is a ‘‘major rule’’ for CRA purposes if
it will (A) Have an annual effect on the economy
of $100 million or more; (B) cause a major increase
in costs or prices for consumers, individual
industries, government agencies, or geographic
regions; or (C) result in significant adverse effects
on competition, employment, investment,
productivity, innovation, or the ability of United
States-based enterprises to compete with foreignbased
enterprises in domestic and export markets.
5 U.S.C. 804. The notice-posting rule is a ‘‘major
Continued
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effective date of the rule is 75 days after
publication in the Federal Register. 213
List of Subjects in 29 CFR Part 104
Administrative practice and
procedure, Employee rights, Labor
unions.
Text of Final Rule
Accordingly, a new part 104 is added
to 29 CFR chapter 1 to read as follows:
PART 104—NOTIFICATION OF
EMPLOYEE RIGHTS; OBLIGATIONS
OF EMPLOYERS
Subpart A—Definitions, Requirements for
Employee Notice, and Exceptions and
Exemptions
Sec.
104.201 What definitions apply to this part?
104.202 What employee notice must
employers subject to the NLRA post in
the workplace?
104.203 Are Federal contractors covered
under this part?
104.204 What entities are not subject to this
part?
Appendix to Subpart A—Text of Employee
Notice
Subpart B—General Enforcement and
Complaint Procedures
104.210 How will the Board determine
whether an employer is in compliance
with this part?
104.211 What are the procedures for filing
a charge?
104.212 What are the procedures to be
followed when a charge is filed alleging
that an employer has failed to post the
required employee notice?
104.213 What remedies are available to cure
a failure to post the employee notice?
104.214 How might other Board
proceedings be affected by failure to post
the employee notice?
Subpart C—Ancillary Matters
104.220 What other provisions apply to this
part?
rule’’ because, as explained in the discussion of the
Regulatory Flexibility Act above, the Board has
estimated that the average cost of compliance with
the rule will be approximately $64.40 per affected
employer; thus, because there are some 6 million
employers that could potentially be affected by the
rule, the total cost to the economy of compliance
with the rule will be approximately $386.4 million.
As further explained, nearly all of that cost will be
incurred during the year in which the rule takes
effect; in subsequent years, the only costs of
compliance will be those incurred by employers
that either open new facilities or expand existing
ones, and those that for one reason or another fail
to comply with the rule during the first year. The
Board therefore expects that the costs of compliance
will be far less than $100 million in the second and
subsequent years. The Board is confident that the
rule will have none of the effects enumerated in 5
U.S.C. 804(2)(B) and (C) above.
213 The Board finds unpersuasive the suggestions
in several comments that the effective date of the
rule be postponed to as late as April 15, 2012. The
Board finds nothing in the requirements of the rule
or in the comments received that would warrant
postponing the effective date.
Authority: National Labor Relations Act
(NLRA), Section 6, 29 U.S.C. 156;
Administrative Procedure Act, 5 U.S.C. 553.
Subpart A—Definitions, Requirements
for Employee Notice, and Exceptions
and Exemptions
§ 104.201 What definitions apply to this
part?
Employee includes any employee, and
is not limited to the employees of a
particular employer, unless the NLRA
explicitly states otherwise. The term
includes anyone whose work has ceased
because of, or in connection with, any
current labor dispute or because of any
unfair labor practice, and who has not
obtained any other regular and
substantially equivalent employment.
However, it does not include
agricultural laborers, supervisors, or
independent contractors, or anyone
employed in the domestic service of any
family or person at his home, or by his
parent or spouse, or by an employer
subject to the Railway Labor Act (45
U.S.C. 151 et seq.), or by any other
person who is not an employer as
defined in the NLRA. 29 U.S.C. 152(3).
Employee notice means the notice set
forth in the Appendix to Subpart A of
this part that employers subject to the
NLRA must post pursuant to this part.
Employer includes any person acting
as an agent of an employer, directly or
indirectly. The term does not include
the United States or any wholly owned
Government corporation, or any Federal
Reserve Bank, or any State or political
subdivision thereof, or any person
subject to the Railway Labor Act, or any
labor organization (other than when
acting as an employer), or anyone acting
in the capacity of officer or agent of
such labor organization. 29 U.S.C.
152(2). Further, the term ‘‘employer’’
does not include 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.
Labor organization means any
organization of any kind, or any agency
or employee representation committee
or plan, in which employees participate
and which exists for the purpose, in
whole or in part, of dealing with
employers concerning grievances, labor
disputes, wages, rates of pay, hours of
employment, or conditions of work. 29
U.S.C. 152(5).
National Labor Relations Board
(Board) means the National Labor
Relations Board provided for in section
3 of the National Labor Relations Act, 29
U.S.C. 153. 29 U.S.C. 152(10).
Person includes one or more
individuals, labor organizations,
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partnerships, associations, corporations,
legal representatives, trustees, trustees
in cases under title 11 of the United
States Code, or receivers. 29 U.S.C.
152(1).
Rules, regulations, and orders, as used
in § 104.202, means rules, regulations,
and relevant orders issued by the Board
pursuant to this part.
Supervisor means any individual
having authority, in the interest of the
employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign,
reward, or discipline other employees,
or responsibly to direct them, or to
adjust their grievances, or effectively to
recommend such action, if in
connection with the foregoing the
exercise of such authority is not of a
merely routine or clerical nature, but
requires the use of independent
judgment. 29 U.S.C. 152(11).
Unfair labor practice means any
unfair labor practice listed in section 8
of the National Labor Relations Act, 29
U.S.C. 158. 29 U.S.C. 152(8).
Union means a labor organization as
defined above.
§ 104.202 What employee notice must
employers subject to the NLRA post in the
workplace?
(a) Posting of employee notice. All
employers subject to the NLRA must
post notices to employees, in
conspicuous places, informing them of
their NLRA rights, together with Board
contact information and information
concerning basic enforcement
procedures, in the language set forth in
the Appendix to Subpart A of this part.
(b) Size and form requirements. The
notice to employees shall be at least 11
inches by 17 inches in size, and in such
format, type size, and style as the Board
shall prescribe. If an employer chooses
to print the notice after downloading it
from the Board’s Web site, the printed
notice shall be at least 11 inches by 17
inches in size.
(c) Adaptation of language. The
National Labor Relations Board may
find that an Act of Congress,
clarification of existing law by the
courts or the Board, or other
circumstances make modification of the
employee notice necessary to achieve
the purposes of this part. In such
circumstances, the Board will promptly
issue rules, regulations, or orders as are
needed to ensure that all future
employee notices contain appropriate
language to achieve the purposes of this
part.
(d) Physical posting of employee
notice. The employee notice must be
posted in conspicuous places where
they are readily seen by employees,
including all places where notices to
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employees concerning personnel rules
or policies are customarily posted.
Where 20 percent or more of an
employer’s workforce is not proficient
in English and speaks a language other
than English, the employer must post
the notice in the language employees
speak. 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 an employer requests from
the Board a notice in a language in
which it is not available, the requesting
employer will not be liable for noncompliance
with the rule until the
notice becomes available in that
language. An employer must take
reasonable steps to ensure that the
notice is not altered, defaced, covered
by any other material, or otherwise
rendered unreadable.
(e) Obtaining a poster with the
employee notice. A poster with the
required employee notice, including a
poster with the employee notice
translated into languages other than
English, will be printed by the Board,
and may be obtained from the Board’s
office, 1099 14th Street, NW.,
Washington, DC 20570, or from any of
the Board’s regional, subregional, or
resident offices. Addresses and
telephone numbers of those offices may
be found on the Board’s Web site at
http://www.nlrb.gov. A copy of the
poster in English and in languages other
than English may also be downloaded
from the Board’s Web site at http://
www.nlrb.gov. Employers also may
reproduce and use copies of the Board’s
official poster, provided that the copies
duplicate the official poster in size,
content, format, and size and style of
type. In addition, employers may use
commercial services to provide the
employee notice poster consolidated
onto one poster with other Federally
mandated labor and employment
notices, so long as the consolidation
does not alter the size, content, format,
or size and style of type of the poster
provided by the Board.
(f) Electronic posting of employee
notice. (1) In addition to posting the
required notice physically, an employer
must also post the required notice on an
intranet or internet site if the employer
customarily communicates with its
employees about personnel rules or
policies by such means. An employer
that customarily posts notices to
employees about personnel rules or
policies on an intranet or internet site
will satisfy the electronic posting
requirement by displaying
prominently—i.e., no less prominently
than other notices to employees—on
such a site either an exact copy of the
poster, downloaded from the Board’s
Web site, or a link to the Board’s Web
site that contains the poster. The link to
the Board’s Web site must read,
‘‘Employee Rights under the National
Labor Relations Act.’’
(2) Where 20 percent or more of an
employer’s workforce is not proficient
in English and speaks a language other
than English, the employer must
provide notice as required in paragraph
(f)(1) of this section in the language the
employees speak. 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 provide
the notice in each such language. The
Board will provide translations of the
link to the Board’s Web site for any
employer that must or wishes to display
the link on its Web site. If an employer
requests from the Board a notice in a
language in which it is not available, the
requesting employer will not be liable
for non-compliance with the rule until
the notice becomes available in that
language.
§ 104.203 Are Federal contractors covered
under this part?
Yes, Federal contractors are covered.
However, contractors may comply with
the provisions of this part by posting the
notices to employees required under the
Department of Labor’s notice-posting
rule, 29 CFR part 471.
§ 104.204 What entities are not subject to
this part?
(a) The following entities are
excluded from the definition of
‘‘employer’’ under the National Labor
Relations Act and are not subject to the
requirements of this part:
Employer category
TABLE TO § 104.204
Amusement industry ............................................................................................................................ $500,000.
Apartment houses, condominiums, cooperatives ................................................................................ $500,000.
Architects ............................................................................................................................................. Nonretail standard.
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(1) The United States or any wholly
owned Government corporation;
(2) Any Federal Reserve Bank;
(3) Any State or political subdivision
thereof;
(4) Any person subject to the Railway
Labor Act;
(5) Any labor organization (other than
when acting as an employer); or
(6) Anyone acting in the capacity of
officer or agent of such labor
organization.
(b) In addition, employers employing
exclusively workers who are excluded
from the definition of ‘‘employee’’
under § 104.201 are not covered by the
requirements of this part.
(c) This part 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.
(d)(1) This part does not apply to
entities whose impact on interstate
commerce, although more than de
minimis, is so slight that they do not
meet the Board’s discretionary
jurisdiction standards. The most
commonly applicable standards are:
(i) The retail standard, which applies
to employers in retail businesses,
including home construction. The Board
will take jurisdiction over any such
employer that has a gross annual
volume of business of $500,000 or more.
(ii) The nonretail standard, which
applies to most other employers. It is
based either on the amount of goods
sold or services provided by the
employer out of state (called ‘‘outflow’’)
or goods or services purchased by the
employer from out of state (called
‘‘inflow’’). The Board will take
jurisdiction over any employer with an
annual inflow or outflow of at least
$50,000. Outflow can be either direct—
to out-of-state purchasers—or indirect—
to purchasers that meet other
jurisdictional standards. Inflow can also
be direct—purchased directly from out
of state—or indirect—purchased from
sellers within the state that purchased
them from out-of-state sellers.
(2) There are other standards for
miscellaneous categories of employers.
These standards are based on the
employer’s gross annual volume of
business unless stated otherwise. These
standards are listed in the Table to this
section.
Jurisdictional standard
54048 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations
TABLE TO § 104.204—Continued
Employer category
Jurisdictional standard
Art museums, cultural centers, libraries .............................................................................................. $1 million.
Bandleaders ......................................................................................................................................... Retail/nonretail (depends on customer).
Cemeteries ........................................................................................................................................... $500,000.
Colleges, universities, other private schools ....................................................................................... $1 million.
Communications (radio, TV, cable, telephone, telegraph) .................................................................. $100,000.
Credit unions ........................................................................................................................................ Either retail or nonretail standard.
Day care centers ................................................................................................................................. $250,000.
Gaming industry ................................................................................................................................... $500,000.
Health care institutions:
Nursing homes, visiting nurses associations ............................................................................... $100,000.
Hospitals, blood banks, other health care facilities (including doctors’ and dentists’ offices) ..... $250,000.
Hotels and motels ................................................................................................................................ $500,000.
Instrumentalities of interstate commerce ............................................................................................. $50,000.
Labor organizations (as employers) .................................................................................................... Nonretail standard.
Law firms; legal service organizations ................................................................................................ $250,000.
Newspapers (with interstate contacts) ................................................................................................ $200,000.
Nonprofit charitable institutions ........................................................................................................... Depends on the entity’s substantive purpose.
Office buildings; shopping centers ...................................................................................................... $100,000.
Private clubs ........................................................................................................................................ $500,000.
Public utilities ....................................................................................................................................... $250,000 or nonretail standard.
Restaurants .......................................................................................................................................... $500,000.
Social services organizations .............................................................................................................. $250,000.
Symphony orchestras .......................................................................................................................... $1 million.
Taxicabs ............................................................................................................................................... $500,000.
Transit systems .................................................................................................................................... $250,000.
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(3) If an employer can be classified
under more than one category, the
Board will assert jurisdiction if the
employer meets the jurisdictional
standard of any of those categories.
(4) There are a few employer
categories without specific
jurisdictional standards:
(i) Enterprises whose operations have
a substantial effect on national defense
or that receive large amounts of Federal
funds
(ii) Enterprises in the District of
Columbia
(iii) Financial information
organizations and accounting firms
(iv) Professional sports
(v) Stock brokerage firms
(vi) U. S. Postal Service
(5) A more complete discussion of the
Board’s jurisdictional standards may be
found in An Outline of Law and
Procedure in Representation Cases,
Chapter 1, found on the Board’s Web
site, http://www.nlrb.gov.
(e) This part does not apply to the
United States Postal Service.
Appendix to Subpart A—Text of
Employee Notice
‘‘EMPLOYEE RIGHTS UNDER THE
NATIONAL LABOR RELATIONS ACT
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. Employees
covered by the NLRA* 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 and unions 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.
‘‘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 wages and benefits and
other 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.
‘‘Under the NLRA, it is illegal for your
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
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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.
‘‘Under the NLRA, it is illegal for a union
or for the union that represents you in
bargaining with your employer to:
• Threaten or coerce you in order to gain
your support for 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 adverse action against you because
you have not joined or do not support the
union.
‘‘If you and your co-workers select a union
to act as your collective bargaining
representative, your employer and the union
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are required to bargain in good faith 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.
‘‘Illegal conduct will not be permitted. If
you believe your rights or the rights of others
have been violated, you should contact the
NLRB promptly to protect your rights,
generally within six months of the unlawful
activity. You may inquire about possible
violations without your employer or anyone
else being informed of the inquiry. Charges
may be filed by any person and need not be
filed by the employee directly affected by the
violation. The NLRB may order an employer
to rehire a worker fired in violation of the
law and to pay lost wages and benefits, and
may order an employer or union to cease
violating the law. Employees should seek
assistance from the nearest regional NLRB
office, which can be found on the Agency’s
Web site: http://www.nlrb.gov.
You can also contact the NLRB by calling
toll-free: 1–866–667–NLRB (6572) or (TTY)
1–866–315–NLRB (1–866–315–6572) for
hearing impaired.
If you do not speak or understand English
well, you may obtain a translation of this
notice from the NLRB’s Web site or by calling
the toll-free numbers listed above.
‘‘*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).
‘‘This is an official Government Notice and
must not be defaced by anyone.’’
Subpart B—General Enforcement and
Complaint Procedures
§ 104.210 How will the Board determine
whether an employer is in compliance with
this part?
The Board has determined that
employees must be aware of their NLRA
rights in order to exercise those rights
effectively. Employers subject to this
rule are required to post the employee
notice to inform employees of their
rights. Failure to post the employee
notice may be found to interfere with,
restrain, or coerce employees in the
exercise of the rights guaranteed by
NLRA Section 7, 29 U.S.C. 157, in
violation of NLRA Section 8(a)(1), 29
U.S.C. 158(a)(1).
Normally, the Board will determine
whether an employer is in compliance
when a person files an unfair labor
practice charge alleging that the
employer has failed to post the
employee notice required under this
part. Filing a charge sets in motion the
Board’s procedures for investigating and
adjudicating alleged unfair labor
practices, and for remedying conduct
that the Board finds to be unlawful. See
NLRA Sections 10–11, 29 U.S.C. 160–
61, and 29 CFR part 102, subpart B.
§ 104.211 What are the procedures for
filing a charge?
(a) Filing charges. Any person (other
than Board personnel) may file a charge
with the Board alleging that an
employer has failed to post the
employee notice as required by this
part. A charge should be filed with the
Regional Director of the Region in
which the alleged failure to post the
required notice is occurring.
(b) Contents of charges. The charge
must be in writing and signed, and must
be sworn to before a Board agent, notary
public, or other person authorized to
administer oaths or take
acknowledgements, or contain a
declaration by the person signing it,
under penalty of perjury, that its
contents are true and correct. The
charge must include:
(1) The charging party’s full name and
address;
(2) If the charge is filed by a union,
the full name and address of any
national or international union of which
it is an affiliate or constituent unit;
(3) The full name and address of the
employer alleged to have violated this
part; and
(4) A clear and concise statement of
the facts constituting the alleged unfair
labor practice.
§ 104.212 What are the procedures to be
followed when a charge is filed alleging that
an employer has failed to post the required
employee notice?
(a) When a charge is filed with the
Board under this section, the Regional
Director will investigate the allegations
of the charge. If it appears that the
allegations are true, the Regional
Director will make reasonable efforts to
persuade the respondent employer to
post the required employee notice
expeditiously. If the employer does so,
the Board expects that there will rarely
be a need for further administrative
proceedings.
(b) If an alleged violation cannot be
resolved informally, the Regional
Director may issue a formal complaint
against the respondent employer,
alleging a violation of the notice-posting
requirement and scheduling a hearing
before an administrative law judge.
After a complaint issues, the matter will
be adjudicated in keeping with the
Board’s customary procedures. See
NLRA Sections 10 and 11, 29 U.S.C.
160, 161; 29 CFR part 102, subpart B.
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§ 104.213 What remedies are available to
cure a failure to post the employee notice?
(a) If the Board finds that the
respondent employer has failed to post
the required employee notices as
alleged, the respondent will be ordered
to cease and desist from the unlawful
conduct and post the required employee
notice, as well as a remedial notice. In
some instances additional remedies may
be appropriately invoked in keeping
with the Board’s remedial authority.
(b) Any employer that threatens or
retaliates against an employee for filing
charges or testifying at a hearing
concerning alleged violations of the
notice-posting requirement may be
found to have committed an unfair labor
practice. See NLRA Section 8(a)(1) and
8(a)(4), 29 U.S.C. 158(a)(1), (4).
§ 104.214 How might other Board
proceedings be affected by failure to post
the employee notice?
(a) Tolling of statute of limitations.
When an employee files an unfair labor
practice charge, the Board may find it
appropriate to excuse the employee
from the requirement that charges be
filed within six months after the
occurrence of the allegedly unlawful
conduct if the employer has failed to
post the required employee notice
unless the employee has received actual
or constructive notice that the conduct
complained of is unlawful. See NLRA
Section 10(b), 29 U.S.C. 160(b).
(b) Noncompliance as evidence of
unlawful motive. The Board may
consider a knowing and willful refusal
to comply with the requirement to post
the employee notice as evidence of
unlawful motive in a case in which
motive is an issue.
Subpart C—Ancillary Matters
§ 104.220 What other provisions apply to
this part?
(a) The regulations in this part do not
modify or affect the interpretation of
any other NLRB regulations or policy.
(b)(1) This subpart does not impair or
otherwise affect:
(i) Authority granted by law to a
department, agency, or the head thereof;
or
(ii) Functions of the Director of the
Office of Management and Budget
relating to budgetary, administrative, or
legislative proposals.
(2) This subpart must be implemented
consistent with applicable law and
subject to the availability of
appropriations.
(c) This part creates no right or
benefit, substantive or procedural,
enforceable at law or in equity by any
party against the United States, its
departments, agencies, or entities, its
54050 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Rules and Regulations
officers, employees, or agents, or any
other person.
Signed in Washington, DC, August 22,
2011.
Wilma B. Liebman,
Chairman.
[FR Doc. 2011–21724 Filed 8–25–11; 8:45 am]
BILLING CODE 7545–01–P
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