[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80410-80420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32019]



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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.

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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 e-mail 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 toll-free 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
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    \1\ Labor-management relations in the railroad and airline 
industries are governed by the Railway Labor Act, 45 U.S.C. 151 et 
seq.

    Employees shall have the right to self-organization, 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 
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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\
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    \2\ The original NLRA did not include restrictions on the 
actions of unions; those were added in the Labor-Management 
Relations (Taft-Hartley) Act of 1947, 29 U.S.C. 141 et seq., Title 
I.
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    For employees to exercise their NLRA rights, however, they must 
know that

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those rights exist. There is reason to think that most do not. As one 
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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\
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    \3\ See also Charles J. Morris, ``Renaissance at the NLRB--
Opportunity and Prospect for Non-Legislative 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).
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    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).
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    \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.
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    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.
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    \5\ The Board requires that employees be notified of their NLRA 
rights in only the following narrow circumstances: (1) For the three 
working days before a Board-conducted representation election, the 
employer is required to post a notice of election including a brief 
description of employee rights; see 29 CFR 103.20. (2) When an 
employer or a union has been found to have violated employee rights 
under the NLRA, it is required to post a notice containing a brief 
summary of those rights. (3) Before a union may seek to obligate 
newly hired nonmember employees to pay dues and fees under a union-
security clause, it must inform them of their right under NLRB v. 
General Motors, 373 U.S. 734 (1963), and Communications Workers v. 
Beck, 487 U.S. 735 (1988), to be or remain nonmembers and that 
nonmembers have the right to object to paying for union activities 
unrelated to the union's duties as the bargaining representative and 
to obtain a reduction in dues and fees 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
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    Thus, the NLRA stands out as an exception to the widespread notice-
posting 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.
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    \16\ Professor Emeritus of Law, Southern Methodist University.
    \17\ See 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.
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    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

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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 Sec.  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.
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    \18\ Section 7 of the NLRA states, very generally, that
    Employees shall have the right to self-organization, 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.
    \19\ The 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.
    \20\ See 75 FR 28372-28381.
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    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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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.
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    \21\ This issue is the subject of the petition filed by former 
Governor Pete Wilson; see earlier discussion, above.
    \22\ See fn. 4, above.
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    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 Sec.  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 Sec.  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 Sec.  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.
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    \23\ See J. Picini Flooring, 356 NLRB No. 9, slip op. at 6 
(2010).
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    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 Sec.  
104.202(f), the translated version of the notice supplied by the Board, 
or by prominently displaying, as required in Sec.  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\
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    \24\ The proposed rule excludes small businesses whose impact on 
interstate commerce is de minimis or so slight that they do not meet 
the Board's discretionary jurisdiction requirements. See generally 
An Outline of Law and Procedure in Representation Cases, Chapter 1, 
found on the Board's Web site, http://www.nlrb.gov, and cases cited 
therein.
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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

[[Page 80414]]

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.
---------------------------------------------------------------------------

    \25\ The 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.
---------------------------------------------------------------------------

    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. Ritz-Carlton 
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

[[Page 80415]]

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 notice-posting 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 x $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.
---------------------------------------------------------------------------

    \26\ Source: 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.
---------------------------------------------------------------------------

    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://

[[Page 80416]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Sec.  104.204, below.
    The Board invites the public to comment on the above certification.

Paperwork Reduction Act (PRA) <SUP>28</SUP>

    The proposed rule imposes certain minimal burdens associated with 
the posting of the employee notice required by Sec.  104.202. As noted 
in Sec.  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.
---------------------------------------------------------------------------

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

    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 
government-owned 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


Sec.  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

[[Page 80417]]

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 Sec.  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.


Sec.  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.

[[Page 80418]]

Sec.  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 Sec.  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 Sec.   104.204
------------------------------------------------------------------------
      Employer category                 Jurisdictional standard
------------------------------------------------------------------------
Amusement industry...........  $500,000.
Apartment houses,              $500,000.
 condominiums, cooperatives.
Architects...................  Nonretail standard.
Art museums, cultural          $1 million.
 centers, libraries.
Bandleaders..................  Retail/nonretail (depends on customer).
Cemeteries...................  $500,000.
Colleges, universities, other  $1 million.
 private schools.
Communications (radio, TV,     $100,000.
 cable, telephone, telegraph).
Credit unions................  Either retail or nonretail standard.
Day care centers.............  $250,000.
Gaming industry..............  $500,000.
Health care institutions:
    Nursing homes, visiting    $100,000.
     nurses associations.
    Hospitals, blood banks,    $250,000.
     other health care
     facilities (including
     doctors' and dentists'
     offices).
Hotels and motels............  $500,000.
Instrumentalities of           $50,000.
 interstate commerce.
Labor organizations (as        Nonretail standard.
 employers).
Law firms; legal service       $250,000.
 organizations.
Newspapers (with interstate    $200,000.
 contacts).
Nonprofit charitable           Depends on the entity's substantive
 institutions.                  purpose.
Office buildings; shopping     $100,000.
 centers.
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

[[Page 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:
    <bullet> Organize a union to negotiate with your employer 
concerning your wages, hours, and other terms and conditions of 
employment.
    <bullet> Form, join or assist a union.
    <bullet> Bargain collectively through representatives of 
employees' own choosing for a contract with your employer setting 
your wages, benefits, hours, and other working conditions.
    <bullet> Discuss your terms and conditions of employment or 
union organizing with your co-workers or a union.
    <bullet> 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.
    <bullet> Strike and picket, depending on the purpose or means of 
the strike or the picketing.
    <bullet> 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:
    <bullet> 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.
    <bullet> Question you about your union support or activities in 
a manner that discourages you from engaging in that activity.
    <bullet> 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.
    <bullet> Threaten to close your workplace if workers choose a 
union to represent them.
    <bullet> Promise or grant promotions, pay raises, or other 
benefits to discourage or encourage union support.
    <bullet> Prohibit you from wearing union hats, buttons, t-
shirts, and pins in the workplace except under special 
circumstances.
    <bullet> 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:
    <bullet> Threaten you that you will lose your job unless you 
support the union.
    <bullet> Refuse to process a grievance because you have 
criticized union officials or because you are not a member of the 
union.
    <bullet> Use or maintain discriminatory standards or procedures 
in making job referrals from a hiring hall.
    <bullet> Cause or attempt to cause an employer to discriminate 
against you because of your union-related activity.
    <bullet> 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 public-sector 
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


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 80420]]

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).


Sec.  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


Sec.  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