80410 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

1Labor-management relations in the railroad and 

airline industries are governed by the Railway 

Labor Act, 45 U.S.C. 151 et seq. 

2The original NLRA did not include restrictions 

on the actions of unions; those were added in the 

Labor-Management Relations (Taft-Hartley) Act of 

1947, 29 U.S.C. 141 et seq., Title I. 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 104 

RIN 3142—AA07 

Proposed Rules Governing Notification 

of Employee Rights Under the National 

Labor Relations Act 

AGENCY: National Labor Relations 

Board. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: This Notice of Proposed 

Rulemaking (NPRM) proposes a 

regulation requiring employers, 

including labor organizations in their 

capacity as employers, subject to the 

National Labor Relations Act (NLRA) to 

post notices informing their employees 

of their rights as employees under the 

NLRA. The National Labor Relations 

Board (Board) believes that many 

employees protected by the NLRA are 

unaware of their rights under the 

statute. The intended effects of this 

action are to increase knowledge of the 

NLRA among employees, to better 

enable the exercise of rights under the 

statute, and to promote statutory 

compliance by employers and unions. 

The proposed rule establishes the 

size, form, and content of the notice, 

and sets forth provisions regarding 

sanctions and remedies that may be 

imposed if an employer fails to comply 

with its obligations under the rule. 

DATES: Comments regarding this 

proposed rule must be received by the 

Board on or before February 22, 2011. 

Any comments received after the 

comment period closes will be 

considered only to the extent feasible. 

ADDRESSES: You may submit comments, 

identified by 3142–AA07, only by the 

following methods: 

Internet—Federal eRulemaking Portal. 

Electronic comments may be submitted 

through http://www.regulations.gov. To 

locate the proposed rule, search 

‘‘documents open for comment’’ and use 

key words such as ‘‘National Labor 

Relations Board’’ or ‘‘Notification of 

Employee Rights under the National 

Labor Relations Act’’ to find documents 

accepting comments. Follow the 

instructions for submitting comments. 

Delivery—Comments should be sent 

to: Lester A. Heltzer, Executive 

Secretary, National Labor Relations 

Board, 1099 14th Street, NW., 

Washington, DC 20570. Because of 

security precautions, the Board 

continues to experience delays in U.S. 

mail delivery. You should take this into 

consideration when preparing to meet 

the deadline for submitting comments. 

The Board encourages electronic filing. 

The Board recommends that you 

confirm receipt of your delivered 

comments by contacting (202) 273–1067 

(this is not a toll-free number). 

Individuals with hearing impairments 

may call 1–866–315–6572 (TTY/TDD). 

Only comments submitted through 

http://www.regulations.gov, hand 

delivered, or mailed will be accepted; ex 

parte communications received by the 

Board will be made part of the 

rulemaking record and will be treated as 

comments only insofar as appropriate. 

Comments will be available for public 

inspection at http:// 

www.regulations.gov and during normal 

business hours (8:30 a.m. to 5 p.m. EST) 

at the above address. 

The Board will post all comments 

received on http://www.regulations.gov 

without making any change to the 

comments, including any personal 

information provided. The http:// 

www.regulations.gov Web site is the 

Federal eRulemaking portal, and all 

comments posted there are available 

and accessible to the public. The Board 

cautions commenters not to include 

their personal information such as 

Social Security numbers, personal 

addresses, telephone numbers, and email addresses in their comments, as 

such submitted information will become 

viewable by the public via the http:// 

www.regulations.gov Web site. It is the 

commenter’s responsibility to safeguard 

his or her information. Comments 

submitted through http:// 

www.regulations.gov will not include 

the commenter’s e-mail address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

FOR FURTHER INFORMATION CONTACT: 

Lester A. Heltzer, Executive Secretary, 

National Labor Relations Board, 1099 

14th Street, NW., Washington, DC 

20570, (202) 273–1067 (this is not a tollfree number), 1–866–315–6572 (TTY/ 

TDD). 

SUPPLEMENTARY INFORMATION: The 

Proposed Rule is organized as follows: 

I. Background—briefly describes the 

development of the Proposed Rule 

II. Authority—cites the legal authority 

supporting the Proposed Rule 

III. Overview of the Rule—outlines the 

proposed regulatory text 

IV. Dissenting View of Member Brian E. 

Hayes 

V. Regulatory Procedures—sets forth the 

applicable regulatory requirements and 

requests comments on specific issues 

I. Background 

The NLRA, enacted in 1935, is the 

Federal statute that regulates most 

private sector labor-management 

relations in the United States.1 Section 

7 of the NLRA, 29 U.S.C 157, guarantees 

that 

Employees shall have the right to selforganization, to form, join, or assist labor 

organizations, to bargain collectively through 

representatives of their own choosing, and to 

engage in other concerted activities for the 

purpose of collective bargaining or other 

mutual aid or protection, and shall also have 

the right to refrain from any or all such 

activities[.] 

In Section 1, 29 U.S.C. 151, Congress 

explained why it was necessary for 

those rights to be protected: 

The denial by some employers of the right 

of employees to organize and the refusal by 

some employers to accept the procedure of 

collective bargaining lead to strikes and other 

forms of industrial strife or unrest, which 

have the intent or the necessary effect of 

burdening or obstructing commerce[.] * * * 

* * * * * 

Experience has proved that protection by 

law of the right of employees to organize and 

bargain collectively safeguards commerce 

from injury, impairment, or interruption, and 

promotes the flow of commerce by removing 

certain recognized sources of industrial strife 

and unrest, by encouraging practices 

fundamental to the friendly adjustment of 

industrial disputes arising out of differences 

as to wages, hours, or other working 

conditions, and by restoring equality of 

bargaining power between employers and 

employees. 

* * * * * 

It is declared to be the policy of the United 

States to eliminate the causes of certain 

substantial obstructions to the free flow of 

commerce and to mitigate and eliminate 

these obstructions when they have occurred 

by encouraging the practice and procedure of 

collective bargaining and by protecting the 

exercise by workers of full freedom of 

association, self-organization, and 

designation of representatives of their own 

choosing, for the purpose of negotiating the 

terms and conditions of their employment or 

other mutual aid or protection. 

Thus, Congress plainly stated that, in its 

judgment, protecting the rights of 

employees to form and join unions and 

to engage in collective bargaining would 

benefit not only the employees 

themselves, but the nation as a whole. 

The Board was established to ensure 

that employers and, later, unions 

respect the exercise of employees’ rights 

under the NLRA.2

For employees to exercise their NLRA 

rights, however, they must know that 


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Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80411 

3See also Charles J. Morris, ‘‘Renaissance at the 

NLRB—Opportunity and Prospect for NonLegislative Procedural Reform at the Labor Board,’’ 

23 Stetson L. Rev. 101, 107 (1993) (‘‘Most American 

employees either have never heard of the NLRB or 

they do not know what it does, and very few know 

how to initiate Board action.’’); Morris, ‘‘NLRB 

Protection in the Nonunion Workplace: A Glimpse 

at a General Theory of Section 7 Conduct, 137 U. 

Pa. L. Rev. 1673, 1675–1676 (1989) (commenting on 

the widespread ignorance of NLRA rights on the 

part of nonunion employees). 

4 In 2009, only 8 percent of non-agricultural 

private sector employees were represented by 

unions. U.S. Department of Labor, Bureau of Labor 

Statistics, News Release USDL–10–0069, Table 3 

(January 22, 2010). Source: Department of 

Commerce, Bureau of the Census, Current 

Population Survey. 

5The Board requires that employees be notified 

of their NLRA rights in only the following narrow 

circumstances: (1) For the three working days 

before a Board-conducted representation election, 

the employer is required to post a notice of election 

including a brief description of employee rights; see 

29 CFR 103.20. (2) When an employer or a union 

has been found to have violated employee rights 

under the NLRA, it is required to post a notice 

containing a brief summary of those rights. (3) 

Before a union may seek to obligate newly hired 

nonmember employees to pay dues and fees under 

a union-security clause, it must inform them of 

their right under NLRB v. General Motors, 373 U.S. 

734 (1963), and Communications Workers v. Beck, 

487 U.S. 735 (1988), to be or remain nonmembers 

and that nonmembers have the right to object to 

paying for union activities unrelated to the union’s 

duties as the bargaining representative and to obtain 

a reduction in dues and fees for such activities. 

California Saw & Knife Works, 320 NLRB 224, 233 

(1995), enfd. sub nom. Machinists v. NLRB, 133 

F.3d 1012 (7th Cir. 1998), cert. denied sub nom. 

Strang v. NLRB, 525 U.S. 813 (1998). The same 

notice must also be given to union members if they 

did not receive it when they entered the bargaining 

unit. Paperworkers Local 1033 (Weyerhaeuser Paper 

Co.), 320 NLRB 349, 350 (1995), rev’d. on other 

grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 

(6th Cir. 1997), vacated sub nom. United 

Paperworkers Intern. Union v. Buzenius, 525 U.S. 

979 (1998). 

6 29 U.S.C. 211 (implementing regulation 29 CFR 

516.4). 

7 42 U.S.C. 2000e–10(a). 

8 29 U.S.C. 627. 

9 29 U.S.C. 651, 657(c). 

10 42 U.S.C. 12101, 12115. 

11 29 U.S.C. 2601, 2619(a). 

12 38 U.S.C. 4334. 

13 45 U.S.C. 152, Eighth. 

14 29 U.S.C. 2003. 

15 29 U.S.C. 1821 

16Professor Emeritus of Law, Southern Methodist 

University. 

17See fn. 5 above. In 1992, President George H.W. 

Bush issued Executive Order 12800, requiring 

unionized Federal contractors to post notices 

informing employees of their rights under General 

Motors and Beck. In 1993, President Clinton 

revoked that order. See E.O.12836. In 2001 

President George W. Bush issued Executive Order 

13201 containing requirements similar to those in 

Executive Order 12800. On January 30, 2009, 

President Obama revoked that order. See E.O. 

13496, Section 13. 

those rights exist. There is reason to 

think that most do not. As one 

commentator put it, 

American workers are largely ignorant of 

their rights under the NLRA, and this 

ignorance stands as an obstacle to the 

effective exercise of such rights. For example, 

during union organizing campaigns, 

employees’ ignorance of the law hinders their 

ability to assess employer anti-union 

propaganda, thus diluting their right to 

organize. In the non-union setting, 

employees’ ignorance leads to the 

underutilization of legitimate workplace 

protests, of the voicing of group grievances, 

and of requests for outside help from 

government agencies or other third parties. In 

sum, lack of notice of their rights 

disempowers employees. 

Peter D. DeChiara, ‘‘The Right to Know: 

An Argument for Informing Employees 

of Their Rights under the National 

Labor Relations Act,’’ 32 Harv. J. on 

Legis. 431, 433–434 (1995) (footnotes 

omitted).3

There are any number of reasons why 

such a knowledge gap could exist. The 

overwhelming majority of private sector 

employees are not represented by 

unions, and thus lack an important 

source of information about NLRA 

rights.4 Immigrants, who comprise an 

increasing proportion of the nation’s 

work force, are unlikely to be familiar 

with their workplace rights, including 

their rights under the NLRA. Several 

studies have suggested that high school 

students, many of whom are about to 

enter the labor force, are uninformed 

about labor law and labor relations. See 

DeChiara, above, at 436 and fn. 28 

(citing studies). 

If employees are largely unaware of 

their NLRA rights, however, one reason 

surely is that, except in very limited 

circumstances, no one is required to 

inform them of those rights.5 The NLRA 

is almost unique among major Federal 

labor laws in not including an express 

statutory provision requiring employers 

routinely to post notices at their 

workplaces informing employees of 

their statutory rights. Such postings are 

required under the Fair Labor Standards 

Act,6 Title VII of the Civil Rights Act of 

1964,7 the Age Discrimination in 

Employment Act,8 the Occupational 

Safety and Health Act,9 the Americans 

with Disabilities Act,10 the Family 

Medical Leave Act,11 the Uniformed 

Service Employment and 

Reemployment Rights Act,12 the 

Railway Labor Act,13 the Employee 

Polygraph Protection Act,14 the Migrant 

and Seasonal Agricultural Workers 

Protection Act,15 and other Federal 

statutes. 

Thus, the NLRA stands out as an 

exception to the widespread noticeposting practice that has long been 

common in the workplace, even though 

it is the basic Federal labor law 

protecting private-sector employees who 

act together to address terms and 

conditions of employment. ‘‘This 

absence of a general notice requirement 

under the NLRA is remarkable given the 

significance of the Act as the 

cornerstone of private-sector labor law 

in this country.’’ See DeChiara, ‘‘The 

Right to Know,’’ above at 433. 

Several efforts have been made to 

address this anomaly. In 1993, Charles 

J. Morris 16 petitioned the Board to issue 

a broad rule requiring employers and 

unions to post notices advising 

employees of their rights and duties 

under the NLRA and of addresses and 

telephone numbers where employees 

can contact the Board for information 

and assistance. In 1998, then-California 

Governor Pete Wilson petitioned the 

Board to require employers to inform 

employees, by either mailed or posted 

notices, of the rights of nonmembers 

under Communications Workers v. 

Beck.17 Most recently, on January 30, 

2009, President Obama issued Executive 

Order 13496, requiring Federal 

contractors and subcontractors to 

include in their Government contracts 

specific provisions requiring them to 

post notices of employees’ NLRA rights. 

On May 20, 2010, the Department of 

Labor issued a Final Rule implementing 

the order effective June 21, 2010. 75 FR 

28368, 29 CFR part 471. Both of the 

petitions and President Obama’s order 

stressed the need for employees to be 

informed of their NLRA rights. 

After due consideration, the Board 

now proposes to require that employees 

of all employers subject to the NLRA be 

informed of their NLRA rights, as they 

are of other rights at the workplace. 

Informing employees of their statutory 

rights is central to advancing the 

NLRA’s promise of ‘‘full freedom of 

association, self-organization, and 

designation of representatives of their 

own choosing.’’ NLRA Section 1, 29 

U.S.C. 151. It is fundamental to 

employees’ exercise of their rights that 

the employees know both their basic 

rights and where they can go to seek 

help in understanding those rights. 

Notice of the right of self-organization, 

to form, join, or assist labor 

organizations, to bargain collectively, to 

engage in other concerted activities, and 

to refrain from such activities, and 

information pertaining to the Board’s 

role in protecting statutory rights serves 

the public interest. 

The workplace itself is the most 

appropriate place for communicating 

with employees about their basic 

statutory rights as employees. See 

Eastex, Inc v. NLRB, 437 U.S. 556, 574 

(1978). Workplace posting informs 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80412 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

18Section 7 of the NLRA states, very generally, 

that 

Employees shall have the right to selforganization, to form, join, or assist labor 

organizations, to bargain collectively through 

representatives of their own choosing, and to 

engage in other concerted activities for the purpose 

of collective bargaining of other mutual aid or 

protection, and shall also have the right to refrain 

from any or all such activities[.] 

29 U.S.C. 157. 

19The pre-election notices and remedial notices 

that the Board requires to be posted in other 

contexts contain only summary descriptions of 

employee rights. In the pre-election context, 

however, at least one union is on the scene and 

presumably will enlighten employees about their 

NLRA rights to some extent. And the purpose of 

remedial notices is chiefly to inform employees of 

what employers and/or unions have done to violate 

their NLRA rights, and less to inform them of their 

rights in general. 

20See 75 FR 28372–28381. 

21This issue is the subject of the petition filed by 

former Governor Pete Wilson; see earlier 

discussion, above. 

employers, as well as employees, of the 

employees’ rights. Thus, some 

employers may be less likely to violate 

their employees’ NLRA rights once they 

know what those rights are; others may 

be dissuaded from violations by the 

knowledge that employees know their 

rights and may be less likely to 

acquiesce if their rights are violated. In 

any event, it seems plausible that 

‘‘employees who see the notice, instead 

of quitting or suffering in silence, would 

be more likely to exercise their right to 

act together to improve conditions such 

as low pay, undesirable work schedules, 

or uncomfortable or dangerous 

conditions in the workplace.’’ DeChiara, 

The Right to Know, above, at 462 

(footnotes omitted). Indeed, as the New 

York Times reported with respect to a 

successful Supreme Court litigant: 

One thing that inspired Ms. White in her 

struggle, curiously, was the bland, 

government-mandated flier posted by every 

employer, the one that promises a workplace 

free of discrimination on the basis of race, 

creed or sex. ‘‘I can always visualize that,’’ 

she said. ‘‘But I never thought it would 

happen to me.’’ 

Shaila Dewan, Forklift Driver’s Stand 

Leads to Broad Rule Protecting Workers 

Who Fear Retaliation, New York Times 

(June 24, 2006) (quoting plaintiff in 

Burlington Northern & Santa Fe Ry. v. 

White, 548 U.S. 53 (2006)). 

For the foregoing reasons, the Board 

proposes a new rule requiring all 

employers subject to the NLRA to post 

a copy of a notice advising employees 

of their rights under the NLRA and 

providing information pertaining to the 

enforcement of those rights. As 

explained below, the burden of 

compliance will be minimal—the 

notices will be made available by the 

Board (both electronically and in hard 

copy), and employers need only post the 

notices in places where they 

customarily post notices to employees; 

there are no reporting or recordkeeping 

requirements. 

II. Authority 

Section 6 of the NLRA, 29 U.S.C. 156, 

provides that ‘‘The Board shall have 

authority from time to time to make, 

amend, and rescind, in the manner 

prescribed by the Administrative 

Procedure Act [5 U.S.C. 553], such rules 

and regulations as may be necessary to 

carry out the provisions of this Act.’’ 

The Board interprets Section 6 as 

authorizing the proposed rule, and 

specifically invites comments on this 

issue. 

III. Overview of the Rule 

If adopted, the Board’s proposed 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 proposed 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 proposed rule. 

Subpart B sets out standards and 

procedures related to allegations of 

noncompliance and enforcement of the 

proposed 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, which 

follows. The Board invites comments on 

any issues addressed by the proposals in 

this rulemaking. 

Subpart A—Definitions, Requirements 

for Employee Notice, and Exceptions 

From Coverage Definitions 

For the most part, the definitions 

proposed in this rule are taken from 

those appearing in Section 2 of the 

NLRA, 29 U.S.C. 152. The Board invites 

comments regarding the definitions 

proposed in § 104.201 below. 

Requirements for Employee Notice 

Content requirements. The proposed 

notice contains a summary of employee 

rights established under the NLRA. The 

Board believes that requiring notice of 

employee rights effectuates the purposes 

of the NLRA. Section 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. 

In arriving at the content of the notice 

of employee rights, the Board is 

proposing 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. The Board tentatively 

agrees 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.18 Rather, the language of the 

notice should include a more detailed 

description of employee rights derived 

from Board and court decisions 

implementing those rights.19 The Board 

also sees merit in the Department of 

Labor’s judgment that including in the 

notice examples, again derived from 

Board and court decisions, of conduct 

that violates the NLRA will assist 

employees in understanding their rights. 

The Board has 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,20 and has 

tentatively concluded that that notice 

explains employee rights accurately and 

effectively without going into excessive 

or confusing detail. The Board therefore 

finds it unnecessary, for purposes of this 

proposed rulemaking, to modify the 

language of the notice in the Department 

of Labor’s final rule. 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. 

The Board also tentatively agrees 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).21 In the relatively 

small number of workplaces where 

union-security provisions exist, unions 

that seek to obligate employees to pay 

dues and fees under those provisions 

are already required to inform those 

employees of their Beck rights. See 

footnote 5 above. In other words, 

existing law already requires notice of 

this particular set of rights to all 


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Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80413 

22See fn. 4, above. 

23See J. Picini Flooring, 356 NLRB No. 9, slip op. 

at 6 (2010). 

24The 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. 

employees who may exercise them. 

Moreover, there are too few employees 

who might benefit from such specific 

notice of this one set of rights to warrant 

its inclusion in the general notice. Only 

about 8 percent of all private sector 

employees are currently represented by 

unions,22 and by no means are all of 

them subject to union-security clauses. 

Indeed, in the 22 so-called ‘‘right to 

work’’ states that prohibit union-security 

arrangements, no employees are covered 

by union-security clauses. Because Beck 

does not even 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 

does not propose to include this 

notification in the notice of employee 

rights. 

The Board invites comment on all of 

the issues raised by the statement of 

NLRA rights proposed for inclusion in 

the required notice to employees. In 

particular, the Board requests comments 

on whether the notice contains 

sufficient information about employee 

rights, whether it effectively conveys 

that information to employees, and 

whether it achieves the desired balance 

between providing an overview of 

employee rights and limiting 

unnecessary and distracting 

information. 

The proposed Appendix to Subpart A 

includes 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 confirms that 

unlawful conduct will not be permitted, 

provides information about the Board 

and about filing a charge with the 

Board, and states that the Board will 

prosecute violators of the NLRA. The 

notice also indicates that there is a 6- 

month statute of limitations for filing 

charges with the Board alleging 

violations and provides Board contact 

information. The Board invites 

suggested additions or deletions to these 

provisions that would improve the 

content of the notice of employee rights. 

Size and form requirements. The 

Board proposes 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. 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. 

Posting requirements. 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, 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.23 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 proposes 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 link must 

contain the prescribed introductory 

language from the poster, which appears 

in proposed 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. 

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. 

The Board seeks comments on its 

proposed requirements for both physical 

and electronic notice posting. In 

addition, the Board solicits 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. 

Exceptions. The proposed 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.24

Subpart B—Enforcement and Complaint 

Procedures 

Subpart B of the proposed rule 

contains procedures for enforcement of 

the employee notice-posting 

requirement and sanctions for 

noncompliance. In crafting Subpart B, 

the Board was mindful of the need to 

identify effective incentives for 

compliance. The Board gave careful 

consideration to several alternative 

approaches to achieving the highest 

degree of compliance with the rule’s 


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25The Board’s General Counsel has unreviewable 

discretion as to whether to issue a complaint in an 

unfair labor practice proceeding. This discretion 

includes dismissing any charge filed against an 

employer who is not covered by the Board’s 

jurisdictional requirements. 

notice-posting requirements. Those 

alternatives, not all of which are 

mutually exclusive, are (1) finding the 

failure to post the required notices to be 

an unfair labor practice; (2) tolling the 

statute of limitations for filing unfair 

labor practice charges against employers 

that fail to post the notices; (3) 

considering the willful failure to post 

the notices as evidence of unlawful 

motive in unfair labor practice cases; (4) 

voluntary compliance. 

The Board has considered but 

tentatively rejected relying solely on 

voluntary compliance. This option 

logically would appear to be the least 

likely to be effective, and the Board’s 

limited experience with voluntary 

posting of notices of employee rights 

seems to confirm this. When an election 

petition is filed, the Board’s Regional 

Office sends the employer Form NLRB– 

5492, Notice to Employees, together 

with a leaflet containing significant 

‘‘Rights of Employees.’’ See the Board’s 

Casehandling Manual, Part Two— 

Representation Proceedings, Section 

11008.5, found on the Board’s Web site, 

http://www.nlrb.gov. The Regional 

Office also asks employers to post the 

notice of employee rights in the 

workplace; however, the Board’s 

experience suggests that the notices are 

seldom posted. Therefore, the Board 

does not propose to rely on voluntary 

compliance alone; but voluntary 

compliance, in combination with either 

tolling the statute of limitations or 

finding a knowing failure to post 

employee notices to be evidence of 

unlawful motive, or both, may be a 

workable approach. (The Board did not 

consider imposing monetary fines for 

noncompliance, because the Board lacks 

the statutory authority to impose 

punitive remedies. See, e.g., Republic 

Steel Corp. v. NLRB, 311 U.S. 7, 10–12 

(1940).) 

Accordingly, the Board proposes the 

following sanctions for failure or refusal 

to post the required employee notices: 

(1) Finding the failure to post the 

required notices to be an unfair labor 

practice; (2) tolling the statute of 

limitations for filing unfair labor 

practice charges against employers that 

fail to post the notices; and (3) 

considering the knowing failure to post 

the notices as evidence of unlawful 

motive in unfair labor practice cases. 

The Board invites comments on any of 

the enforcement and procedural matters 

proposed in Subpart B. 

Noncompliance as an unfair labor 

practice. The proposed rule requires 

employers to inform employees of their 

NLRA rights because the Board believes 

that employees must know their rights 

in order to exercise them effectively. 

Accordingly, the Board proposes to find 

that an employer that fails or refuses to 

post the required notice of employee 

rights violates Section 8(a)(1) of the 

NLRA, 29 U.S.C. 158(a)(1) by 

‘‘interfer[ing] with, restrain[ing], or 

coerc[ing] employees in the exercise of 

the rights guaranteed in Section 7 (29 

U.S.C. 157).’’ 

The Board expects that most 

employers that fail to post the required 

notice will do so simply because they 

are unaware of the rule, and that when 

it is called to their attention, they will 

comply without the need for formal 

administrative action or litigation. 

When that is not the case, the Board’s 

customary procedures for investigating 

and adjudicating alleged unfair labor 

practices may be invoked. See NLRA 

Sections 10 and 11, 29 U.S.C. 160, 161; 

29 CFR part 102, subpart B.25 When the 

Board finds a violation, it will 

customarily order the employer to cease 

and desist and to post the notice of 

employee rights as well as a remedial 

notice. 

Consistent with precedent, it will be 

unlawful for an employer to threaten or 

retaliate against an employee for filing 

charges or testifying in a Board 

proceeding involving an alleged 

violation of the notice-posting 

requirement. NLRA Sections 8(a)(1), 

8(a)(4), 29 U.S.C. 158(a)(1), (4); Romar 

Refuse Removal, 314 NLRB 658 (1994). 

The Board also proposes the following 

options intended to induce compliance 

with the notice-posting requirement, 

either in addition to or instead of 

finding the failure to post to be an unfair 

labor practice: 

Tolling statute of limitations. Failure 

to post the notice of employee rights 

may warrant tolling the 6-month statute 

of limitations for filing unfair labor 

practice charges. NLRA Section 10(b) 

provides in part that ‘‘no complaint shall 

issue based upon any unfair labor 

practice occurring more than six months 

prior to the filing of the charge with the 

Board[.]’’ 29 U.S.C. 160(b). However, the 

6-month period does not begin to run 

until the charging party has actual or 

constructive notice of the allegedly 

unlawful conduct. See, e.g., John 

Morrell & Co., 304 NLRB 896, 899 

(1991), review denied 998 F.2d 7 (DC 

Cir. 1993) (table). 

The same should be true when an 

employee, although aware of the 

conduct in question, is excusably 

unaware that the conduct is unlawful. 

As the U.S. Court of Appeals for the 

Third Circuit has observed in another 

context, ‘‘The [ADEA] posting 

requirement was undoubtedly created 

because Congress recognized that the 

very persons protected by the Act might 

be unaware of its existence.’’ Bonham v. 

Dresser Industries, 569 F.2d 187, 193 

(1977), cert. denied 439 U.S. 821 (1978). 

Because notices of employee rights are 

intended, in part, to advise employees 

of the kinds of conduct that may violate 

their rights, courts have repeatedly 

found in cases arising under other 

Federal employment laws that the 

statutes of limitation for filing actions 

should be tolled when employers fail to 

post required notices informing 

employees of their rights, unless the 

employee has obtained knowledge of 

those rights or is represented by 

counsel. See, e.g., Mercado v. RitzCarlton San Juan Hotel, 410 F.3d 41, 

47–48, 95 FEP Cases 1464 (1st Cir. 2005) 

(Title VII); EEOC v. Kentucky State 

Police Dept., 80 F.3d 1086, 1096 (6th 

Cir. 1996), cert. denied 519 U.S. 963 

(1996); Bonham, above, 569 F.2d at 93 

(ADEA); Hammer v. Cardio Medical 

Products, Inc., 131 Fed. Appx. 829, 831– 

832 (3d Cir. 2005) (Title VII and ADEA); 

Henchy v. City of Absecon, 148 F. Supp. 

2d 435, 439 (D. N.J. 2001); Kamens v. 

Summit Stainless, Inc., 586 F. Supp. 

324, 328 (E.D. Pa. 1984) (FLSA). (But see 

Wilkerson v. Siegfried Ins. Agency, Inc., 

683 F.2d 344, 347 (10th Cir. 1982) (‘‘the 

simple failure to post [Title VII and 

ADEA] notices, without intent to 

actively mislead the plaintiff respecting 

the cause of action, does not extend the 

time within which a claimant must file 

his or her discrimination charge.’’)) The 

same reasoning would appear 

applicable to unfair labor practice 

allegations under the NLRA. 

Accordingly, if an employer fails to post 

the required notice of employee rights, 

the Board may find that the 6-month 

period for filing charges does not begin 

to run until the notice is posted or the 

employee filing the charge otherwise 

acquires actual or constructive notice 

that the conduct in question may be 

unlawful. The Board invites comments 

as to whether unions filing charges 

should be deemed to have constructive 

knowledge of illegality. 

Knowing noncompliance as evidence 

of unlawful motive. An employer that is 

aware, or should be aware, of the 

requirement to post the notice of 

employee rights and fails to do so is 

knowingly preventing employees from 

learning of their NLRA rights. Therefore, 

when it is adjudicating cases in which 

unlawful motive is an element of one or 

more alleged violations, the Board may 


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26Source: SBA Office of Advocacy estimates 

based on data from the U.S. Department of 

Commerce, Bureau of the Census, and trends from 

the U.S. Department of Labor, Bureau of Labor 

Statistics, Business Employment Dynamics. 

consider knowing noncompliance with 

the posting requirement in determining 

whether unlawful motive has been 

established. 

Subpart C—Ancillary Matters 

Several technical issues unrelated to 

those discussed in the two previous 

subparts are set out in this subpart. 

IV. Dissenting View of Member Brian E. 

Hayes 

A majority of the current Board had 

decided to grant the rule-making 

petitions herein prior to my 

confirmation as a Board Member. As a 

consequence of this timing I did not 

participate in the decision to grant the 

instant petitions, nor did I participate in 

the drafting of the proposed rule. Had I 

done so, my decision would have been 

to deny the instant petitions as I believe 

the Board lacks the statutory authority 

to promulgate or enforce the type of rule 

which the petitions contemplated and 

which the proposed rule makes explicit. 

Accordingly, I dissent from the Board’s 

actions today. 

The instant proposed rule would 

impose a requirement that all employers 

subject to the Board’s jurisdiction post 

a notice of employees’ rights identical to 

that which the Department of Labor, 

acting pursuant to clear authority under 

an Executive Order, has recently 

required federal contractors to post. 

Going well beyond that requirement, 

however, the proposed rule here would 

further impose unfair labor practice 

liability for any failure to post a notice 

and would also suspend the Section 

10(b) limitations period for any unfair 

labor practice charge against a 

noncompliant employer. 

Public comment is invited on all 

aspects of the proposed rule and its 

proposed enforcement. I believe such 

comment is plainly warranted and 

should address the Board’s authority to 

impose or enforce such a rule. In my 

view, it is essential to have a broader 

basis for enacting such a rule than the 

opinions of my colleagues and the 

treatises of the party requesting 

rulemaking, Professor Charles Morris. 

My colleagues acknowledge that the 

Act differs from several more recent 

statutes that expressly require the 

posting of individual rights notices. The 

absence of such express language in our 

Act is a strong indicator, if not 

dispositive, that the Board lacks the 

authority to impose such a requirement. 

In particular, I do not believe that the 

language of Section 6 of the Act is 

sufficient statutory authority for 

imposing such a notice requirement and 

sanctions for noncompliance. To the 

contrary, Section 10 of the Act indicates 

to me that the Board clearly lacks the 

authority to order affirmative noticeposting action in the absence of an 

unfair labor practice charge filed by an 

outside party. For that reason, without 

regard for whether a notice-posting 

requirement would further the purposes 

of the Act if the Board had the authority 

to impose it, I would have denied the 

petitions for rulemaking. 

Brian E. Hayes, Member 

V. Regulatory Procedures 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(‘‘RFA’’), 5 U.S.C. 601 et seq., requires 

agencies promulgating proposed rules to 

prepare an initial regulatory flexibility 

analysis and to develop alternatives 

wherever possible, when drafting 

regulations that will have a significant 

impact on a substantial number of small 

entities. The focus of the RFA is to 

ensure that agencies ‘‘review rules to 

assess and take appropriate account of 

the potential impact on small 

businesses, small governmental 

jurisdictions, and small organizations, 

as provided by the [RFA].’’ E.O. 13272, 

Sec. 1, 67 FR 53461 (‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking’’). However, an 

agency is not required to prepare an 

initial regulatory flexibility analysis for 

a proposed rule if the Agency head 

certifies that the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities. 5 U.S.C 605(b). 

Based on the analysis below, in which 

the Board has estimated the financial 

burdens to employers subject to the 

NLRA associated with complying with 

the requirements contained in this final 

rule, the Board has certified to the Chief 

Counsel for Advocacy of the Small 

Business Administration (‘‘SBA’’) that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

The primary goal of the proposed rule 

is the notification to employees of their 

rights with respect to collective 

bargaining and other concerted 

activities protected by Section 7 of the 

NLRA. This goal is achieved through the 

posting of notices by employers subject 

to the NLRA of the rights of employees 

under the NLRA. The Board will make 

the notices available at no cost to 

employers; there are no information 

collection or reporting requirements. 

The Board estimates that in order to 

comply with this rule, each employer 

subject to the NLRA will spend a total 

of 2 hours during the first year in which 

the rule is in effect. This includes 30 

minutes for the employer to learn where 

and how to post the required notices, 30 

minutes to acquire the notices from the 

Board or its Web site, and 60 minutes 

to post them physically and 

electronically, depending on where and 

how the employer customarily posts 

notices to employees. The Board 

assumes that these activities will be 

performed by a professional or business 

worker, who, according to Bureau of 

Labor Statistics data, earned a total 

hourly wage of $31.02 in January 2009, 

including fringe benefits. The Board 

then multiplied this figure by 2 hours to 

estimate the average costs for employers 

to comply with this rule during the first 

year in which the rule is in effect. 

Accordingly, this rule is estimated to 

impose average costs of $62.04 per 

employer subject to the NLRA (2 hours 

× $31.02) during the first year. These 

costs will decrease dramatically in 

subsequent years because the only 

employers affected will be those that 

have did not previously satisfy their 

posting requirements or that have since 

expanded their facilities or established 

new ones. 

According to the United States Census 

Bureau, there were approximately 6 

million businesses with employees in 

2007. Of those, the SBA estimates that 

all but about 18,300 were small 

businesses with fewer than 500 

employees.26 This rule does not apply to 

employers who do not meet the Board’s 

jurisdictional requirements, but the 

Board does not have the means to 

calculate the number of small 

businesses within the Board’s 

jurisdiction. Accordingly, the Board 

assumes for purposes of this analysis 

that the great majority of the nearly 6 

million small businesses will be 

affected. 

Based on the foregoing, the Board 

concludes that that the proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities. The Regulatory Flexibility Act 

does not define either ‘‘significant 

economic impact’’ or ‘‘substantial’’ as it 

relates to the number of regulated 

entities. 5 U.S.C. 601. In the absence of 

specific definitions, ‘‘what is 

‘significant’ or ‘substantial’ will vary 

depending on the problem that needs to 

be addressed, the rule’s requirements, 

and the preliminary assessment of the 

rule’s impact.’’ See A Guide for 

Government Agencies: How to Comply 

with the Regulatory Flexibility Act, 

Office of Advocacy, U.S. Small Business 

Administration at 17 (available at http:// 


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27 In reaching this conclusion, the Board 

considered the likelihood that employers who 

might otherwise be significantly affected even by 

the low cost of compliance under this rule will not 

meet the Board’s jurisdictional requirements. Thus, 

those employers will not be subject to this rule. 

28 44 U.S.C. 3501 et seq. 

www.sba.gov) (‘‘SBA Guide’’). As to 

economic impact, one important 

indicator is the cost of compliance in 

relation to revenue of the entity or the 

percentage of profits affected. SBA 

Guide, above, at 17. Here, the Board has 

determined that the average cost of 

complying with the notice-posting rule 

in the first year for all employers subject 

to the NLRA will be $62.04. The Board 

concludes that this economic impact on 

small employers is not significant.27 The 

Board assumes that the number of small 

employers that will be affected by the 

proposed rule is a substantial number 

within the meaning of 5 U.S.C. 601. 

However, because the economic impact 

on those employers is minimal, the 

Board concludes that, under 5 U.S.C. 

605, the proposed rule will not have a 

significant economic impact on any 

small employers. 

As stated above, the Board assumes 

that a substantial number of small 

businesses will be required to comply 

with this proposed rule. The Board has 

preliminarily considered and rejected 

alternatives that would minimize the 

impact of the proposed rule, including 

a tiered approach for small entities with 

only a few employees, concluding that 

a tiered approach or an exemption for 

some small entities would substantially 

undermine the purpose of the proposed 

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. Congress gave the Board 

very broad jurisdiction, with no 

suggestion that it wanted to limit 

coverage of any part of the Act to only 

larger employers. The Board also 

believes that employees of small 

employers may well be those workers 

most in need of a Board notice. Finally, 

the Board’s jurisdictional standards 

mean that very small employers will not 

be covered by the proposed rule in any 

case. A summary of the Board’s 

discretionary jurisdictional standards 

appears in § 104.204, below. 

The Board invites the public to 

comment on the above certification. 

Paperwork Reduction Act (PRA) 28

The proposed rule imposes certain 

minimal burdens associated with the 

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 exact duplicate copies 

of the notice. 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, the posting requirement is 

not subject to the PRA. 

The PRA does not cover the costs to 

the Federal government of 

administering the regulations 

established by the proposed rule. The 

regulations implementing the PRA 

define ‘‘burden,’’ in pertinent part, as 

‘‘the total time, effort, or financial 

resources expended by persons to 

generate, maintain, retain, or disclose or 

provide information to or for a Federal 

agency.’’ 5 CFR 1320.3(b)(1). The 

definition of ‘‘person’’ in the same 

regulations includes ‘‘an individual, 

partnership, association, corporation 

(including operations of governmentowned contractor-operated facilities), 

business trust, or legal representative, 

an organized group of individuals, a 

State, territorial, tribal, or local 

government or branch thereof, or a 

political subdivision of a State, territory, 

tribal, or local government or a branch 

of a political subdivision.’’ 5 CFR 

1320.3(k). It does not include the 

Federal government or any branch, 

political subdivision, or employee 

thereof. Therefore, the cost to the 

Federal government of administering 

the proposed rule need not be 

considered. 

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.). 

The Board invites the public to 

comment on whether the proposed rule 

otherwise implicates the PRA. 

Request for Comments 

The Board invites comments about 

the NPRM from interested parties, 

including, employers, employees, 

employer organizations, unions, public 

interest groups, and the public. Only 

comments submitted through http:// 

www.regulations.gov, hand delivered, or 

mailed will be accepted. These methods 

for submitting comments are intended 

to be exclusive. Any ex parte 

communications received by the Board 

will be added to the public rulemaking 

record. 

List of Subjects in 29 CFR Part 104 

Administrative practice and 

procedure, Employee rights, Labor 

unions. 

Text of Proposed Rule 

A new part 104 is proposed to be 

added to 29 CFR chapter I 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 sanctions can be imposed for 

failure to post the employee notice? 

104.214 What other sanctions may be 

imposed for noncompliance? 

Subpart C—Ancillary Matters 

104.220 What other provisions apply to this 

part? 

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 


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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, 

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). 

Related 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 

colors and type size and style as the 

Board shall prescribe. 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. 

(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, including 

all places where notices to employees 

are customarily posted. Where a 

significant portion of an employer’s 

workforce is not proficient in English, 

the employer must provide the notice in 

the language employees speak. 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 exact duplicate 

copies of the Board’s official poster. 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, color, or content 

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 distribute the required notice 

electronically, such as by e-mail, 

posting on an intranet or an internet 

site, and/or by any other electronic 

means, if the employer customarily 

communicates with its employees by 

such means. An employer that 

customarily posts notices to employees 

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, 

‘‘Important Notice about Employee 

Rights to Organize and Bargain 

Collectively with Their Employers,’’ and 

must contain the prescribed 

introductory language from the poster, 

which appears in the Appendix to 

Subpart A of this part. An employer that 

customarily communicates with its 

employees by e-mail will satisfy the 

electronic notice posting requirement by 

sending employees an e-mail message 

containing the link described above. 

(2) Where a significant portion of an 

employer’s workforce is not proficient 

in English, the employer must provide 

the notice required in paragraph (f)(1) of 

this section in the language the 

employees speak, in the manner set 

forth in that paragraph. The Board will 

provide translations of the link to the 

Board’s Web site for any employer that 

wishes to display the link on its Web 

site. 

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. 


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§ 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: 

(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) Finally, 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. 

TABLE TO § 104.204 

Employer category Jurisdictional standard 

Amusement industry .............................................................................................................................................. $500,000. 

Apartment houses, condominiums, cooperatives .................................................................................................. $500,000. 

Architects ............................................................................................................................................................... Nonretail 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. 

(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, www.nlrb.gov. 

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 


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Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80419 

and bargain collectively with their 

employers, and to engage in other protected 

concerted 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 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 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. 

‘‘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. 

‘‘If you and your co-workers select a union 

to act as your collective bargaining 

representative, your employer and the union 

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. 

‘‘* 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? 

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 Section 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. 

§ 104.213 What sanctions can be imposed 

for 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 


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80420 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

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 What other sanctions may be 

imposed for noncompliance? 

(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) Knowing noncompliance as 

evidence of unlawful motive. If an 

employer has actual or constructive 

knowledge of the requirement to post 

the employee notice and fails or refuses 

to do so, the Board may consider such 

a willful refusal 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 

officers, employees, or agents, or any 

other person. 

Signed in Washington, DC, December 16, 

2010. 

Wilma B. Liebman, 

Chairman. 

[FR Doc. 2010–32019 Filed 12–21–10; 8:45 am] 

BILLING CODE 7545–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2010–0891, FRL–9241–9] 

RIN 2060–AQ65 

Reasonable Further Progress 

Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rulemaking. 

SUMMARY: The EPA is proposing to 

revise the Agency’s earlier 

interpretation of its rule regarding 

requirements for Reasonable Further 

Progress (RFP) that allowed certain 

emissions reductions from outside the 

nonattainment area to be credited 

toward meeting the RFP requirements 

for the 1997 8-hour ozone national 

ambient air quality standards (NAAQS). 

Specifically, EPA is proposing that 

States may not take credit for emission 

reductions from outside the 

nonattainment area to meet the area’s 

RFP obligations. EPA is also taking 

comment on whether it would be 

appropriate for States to rely on 

emission reductions credit from outside 

the nonattainment area for RFP 

obligations. 

DATES: Comments. Comments must be 

received on or before February 7, 2011. 

Public Hearings. If anyone contacts us 

requesting a public hearing on or before 

January 6, 2011, we will hold a public 

hearing. Please refer to SUPPLEMENTARY

INFORMATION for additional information 

on the comment period and the public 

hearing. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0891, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket and 

Information Center, Attention Docket ID 

No. EPA–HQ–OAR–2010–0891, 

Environmental Protection Agency, 1301 

Constitution Ave., NW., Washington, 

DC 20460. Mail Code: 2822T. Please 

include two copies if possible. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, 

Attention Docket ID No. EPA–HQ– 

OAR–2010–0891, Environmental 

Protection Agency in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave., NW., 

Washington, DC. The EPA/DC Public 

Reading Room hours of operation will 

be 8:30 a.m. to 4:30 p.m. Eastern 

Standard Time (EST), Monday through 

Friday, Air and Radiation Docket and 

Information Center. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0891. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available on-line at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be confidential 

business information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 


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