[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Rules and Regulations]
[Pages 54006-54050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21724]



[[Page 54005]]

Vol. 76

Tuesday,

No. 168

August 30, 2011

Part II





 National Labor Relations Board





-----------------------------------------------------------------------





29 CFR Part 104





Notification of Employee Rights Under the National Labor Relations Act; 
Final Rule

  Federal Register / Vol. 76 , No. 168 / Tuesday, August 30, 2011 / 
Rules and Regulations  

[[Page 54006]]


-----------------------------------------------------------------------

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 104

RIN 3142-AA07


Notification of Employee Rights Under the National Labor 
Relations Act

AGENCY: National Labor Relations Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On December 22, 2010, the National Labor Relations Board 
(Board) issued a proposed rule requiring employers, including labor 
organizations in their capacity as employers, subject to the National 
Labor Relations Act (NLRA) to post notices informing their employees of 
their rights as employees under the NLRA. This final rule sets forth 
the Board's review of and responses to comments on the proposal and 
incorporates any changes made to the rule in response to those 
comments.
    The Board believes that many employees protected by the NLRA are 
unaware of their rights under the statute and that the rule will 
increase knowledge of the NLRA among employees, in order to better 
enable the exercise of rights under the statute. A beneficial side 
effect may well be the promotion of statutory compliance by employers 
and unions.
    The final rule establishes the size, form, and content of the 
notice, and sets forth provisions regarding the enforcement of the 
rule.

DATES: This rule will be effective on November 14, 2011.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, 1099 14th Street, NW., 
Washington, DC 20570, (202) 273-1067 (this is not a toll-free number), 
1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Background on the Rulemaking

    The NLRA, enacted in 1935, is the Federal statute that regulates 
most private sector labor-management relations in the United States.\1\ 
Section 7 of the NLRA, 29 U.S.C. 157, guarantees that
---------------------------------------------------------------------------

    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------

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

    For employees to fully exercise their NLRA rights, however, they 
must know that those rights exist and that the Board protects those 
rights. As the Board explained in its Notice of Proposed Rulemaking 
(NPRM), 75 FR 80410, it has reason to think that most do not.\3\ The 
Board suggested a number of reasons why such a knowledge gap could 
exist--the low percentage of employees who are represented by unions, 
and thus lack an important source of information about NLRA rights; the 
increasing proportion of immigrants in the work force, who are unlikely 
to be familiar with their workplace rights; and lack of information 
about labor law and labor relations on the part of high school students 
who are about to enter the labor force.\4\
---------------------------------------------------------------------------

    \3\ The Board cited three law review articles in which the 
authors contended that American workers are largely unaware of their 
NLRA rights, that the Board can take action to vindicate those 
rights, and that this lack of knowledge stands in the way of 
employees' effectively exercising their rights. Peter D. DeChiara, 
``The Right to Know: An Argument for Informing Employees of Their 
Rights under the National Labor Relations Act,'' 32 Harv. J. on 
Legis. 431, 433-434 (1995); Charles J. Morris, ``Renaissance at the 
NLRB--Opportunity and Prospect for Non-Legislative Procedural Reform 
at the Labor Board,'' 23 Stetson L. Rev. 101, 107 (1993); Morris, 
``NLRB Protection in the Nonunion Workplace: A Glimpse at a General 
Theory of Section 7 Conduct,'' 137 U. Pa. L. Rev. 1673, 1675-1676 
(1989). 75 FR at 80411.
    \4\ Id.
---------------------------------------------------------------------------

    Of greatest concern to the Board, however, is the fact that, except 
in very limited circumstances, no one is required to inform employees 
of their NLRA rights.\5\ The Board is almost unique among agencies and 
departments administering major

[[Page 54007]]

Federal labor and employment laws in not requiring employers routinely 
to post notices at their workplaces informing employees of their 
statutory rights.\6\ Given this common practice of workplace notice-
posting, it is reasonable for the Board to infer that a posting 
requirement will increase employees' awareness of their rights under 
the NLRA.\7\ Further support for that position is President Obama's 
recent Executive Order 13496, issued on January 30, 2009, which 
stressed the need for employees to be informed of their NLRA rights. 
Executive Order 13496 requires Federal contractors and subcontractors 
to include in their Government contracts specific provisions requiring 
them to post notices of employees' NLRA rights. On May 20, 2010, the 
Department of Labor issued a Final Rule implementing the order 
effective June 21, 2010. 75 FR 28368, 29 CFR part 471.
---------------------------------------------------------------------------

    \5\ The Board requires that employees be notified of their NLRA 
rights in only the following narrow circumstances: (1) For the three 
working days before a Board-conducted representation election, the 
employer is required to post a notice of election including a brief 
description of employee rights; see 29 CFR 103.20. (2) When an 
employer or a union has been found to have violated employee rights 
under the NLRA, it is required to post a notice containing a brief 
summary of those rights. (3) Before a union may seek to obligate 
newly hired nonmember employees to pay dues and fees under a union-
security clause, it must inform them of their right under NLRB v. 
General Motors, 373 U.S. 734 (1963), and Communications Workers v. 
Beck, 487 U.S. 735 (1988), to be or remain nonmembers and that 
nonmembers have the right to object to paying for union activities 
unrelated to the union's duties as the bargaining representative and 
to obtain a reduction in dues and fees of such activities. 
California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub 
nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied 
sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The same notice must 
also be given to union members if they did not receive it when they 
entered the bargaining unit. Paperworkers Local 1033 (Weyerhaeuser 
Paper Co.), 320 NLRB 349, 350 (1995), rev'd. on other grounds sub 
nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated sub 
nom. United Paperworkers Intern. Union v. Buzenius, 525 U.S. 979 
(1998). (4) When an employer voluntarily recognizes a union, the 
Board has required that the employer must post a notice informing 
employees: (i) That the employer recognized the union on the basis 
of evidence that it was designated by a majority of the unit 
employees; (ii) the date of recognition; (iii) that all employees, 
including those who previously signed cards for the recognized 
union, have the right to be represented by a labor organization of 
their choice, or no union at all; (iv) that within 45 days of the 
date of the notice a decertification or rival petition, supported by 
30 percent or more of the unit employees, may be filed with the 
Board and will be processed to an election; and, (v) that if no 
petition is filed within 45 days, the recognition will not be 
subject to challenge for a reasonable period to allow the employer 
and union to negotiate a collective-bargaining agreement. Dana 
Corp., 351 NLRB 434 (2007).
    \6\ See, e.g., Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e-10(a); Age Discrimination in Employment Act, 29 U.S.C. 
627; Family and Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair 
Labor Standards Act, 29 CFR 516.4 (implementing 29 U.S.C. 211). 75 
FR 80411.
    \7\ As set forth in the NPRM, two petitions were filed to 
address this anomaly. 75 FR 80411.
---------------------------------------------------------------------------

    After due consideration, the Board has decided to require that 
employees of all employers subject to the NLRA be informed of their 
NLRA rights. Informing employees of their statutory rights is central 
to advancing the NLRA's promise of ``full freedom of association, self-
organization, and designation of representatives of their own 
choosing.'' NLRA Section 1, 29 U.S.C. 151. It is fundamental to 
employees' exercise of their rights that the employees know both their 
basic rights and where they can go to seek help in understanding those 
rights. Notice of the right of self-organization, to form, join, or 
assist labor organizations, to bargain collectively, to engage in other 
concerted activities, and to refrain from such activities, and of the 
Board's role in protecting those statutory rights is necessary to 
effectuate the provisions of the NLRA.
    The Board believes that the workplace itself is the most 
appropriate place for communicating with employees about their basic 
statutory rights as employees. Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, 
574 (1978) (``[T]he plant is a particularly appropriate place for the 
distribution of [NLRA] material.'').
    Accordingly, and pursuant to its rulemaking authority under Section 
6 of the NLRA, the Board proposed a new rule requiring all employers 
subject to the NLRA to post a copy of a notice advising employees of 
their rights under the NLRA and providing information pertaining to the 
enforcement of those rights. 75 FR 80411. For the reasons discussed 
more fully below, the Board tentatively determined that the content of 
the notice should be the same as that of the notice required under the 
Department of Labor's notice posting rule, 29 CFR part 471. Id. at 
80412. Also, as discussed at length below, the Board proposed that 
failure to post the notice would be found to be an unfair labor 
practice--i.e., to interfere with, restrain, or coerce employees in the 
exercise of their NLRA rights, in violation of Section 8(a)(1) of the 
NLRA. Id. at 80414. The Board also proposed that failure to post the 
notice could lead to tolling of the 6-month statute of limitations for 
filing unfair labor practice charges, and that knowing and willful 
failure to post the notice could be considered as evidence of unlawful 
motive in unfair labor practice cases. Id. The Board explained that the 
burden of compliance would be minimal--the notices would be made 
available at no charge by the Board (both electronically and in hard 
copy), and employers would only be required to post the notices in 
places where they customarily post notices to employees; the rule would 
contain no reporting or recordkeeping requirements. Id. at 80412. 
Finally, the Board expressed its position that it was not required to 
prepare an initial regulatory flexibility analysis of the proposed rule 
under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and that 
the notice posting requirement was not subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. Id. at 80415-80416.
    The Board invited comments on its legal authority to issue the 
rule, the content of the notice, the requirements for posting the 
notice, the proposed enforcement scheme, the definitions of terms in 
the proposed rule, and on its positions concerning the Regulatory 
Flexibility Act and the Paperwork Reduction Act. The Board stated that 
comments would be accepted for 60 days following the publication of the 
NPRM in the Federal Register, or until February 22, 2011. The Board 
received 6,560 comments by February 22. However, many late-filed 
comments were also submitted, and the Board decided to accept all 
comments that it received on or before March 23.\8\
---------------------------------------------------------------------------

    \8\ March 23, 2011 was the date that the Board downloaded all of 
the electronic and (pdf. versions of) hard copy comments it had 
received from http://www.regulations.gov and subsequently uploaded 
into a text analytics tool for coding and review.
    A few commenters submitted their comments in both electronic and 
hard copy form. Because all comments received are included in the 
numbers cited in text above, those numbers overstate somewhat the 
number of individuals, organizations, etc. that submitted comments.
---------------------------------------------------------------------------

    In all, 7,034 comments were received from employers, employees, 
unions, employer organizations, worker assistance organizations, and 
other concerned organizations and individuals, including two members of 
Congress. The majority of comments, as well as Board Member Hayes' 
dissent, oppose the rule or aspects of it; many opposing comments 
contain suggestions for improvement in the event the Board issues a 
final rule. Many comments, however, support the rule; a few of those 
suggest changes to clarify or strengthen the rule. The Board wishes to 
express its appreciation to all those who took the time to submit 
thoughtful and helpful comments and suggestions concerning the proposed 
rule.\9\
---------------------------------------------------------------------------

    \9\ Many comments charge that the Board is issuing the rule for 
political reasons, to encourage and spread unionism, to discourage 
employers and employees from engaging in direct communication and 
problem solving, to drive up union membership in order to retain 
agency staff, and even to ``line [its] pockets.'' The Board responds 
that its reasons for issuing the rule are set forth in this 
preamble.
---------------------------------------------------------------------------

    After careful consideration of the comments received, the Board has 
decided to issue a final rule that is similar to that proposed in the 
NPRM, but with some changes suggested by commenters. The most 
significant change in the final rule is the deletion of the requirement 
that employers distribute the notice via email, voice mail, text 
messaging or related electronic communications if they customarily 
communicate with their employees in that manner. Other significant 
changes include clarifications of the employee notice detailing 
employee rights protected by the NLRA and unlawful conduct on the part 
of unions; clarification of the rule's requirements for posting notices 
in foreign languages; allowing employers to post notices in black and 
white as well as in color; and exemption of the U.S. Postal Service 
from coverage of the rule. The Board's responses to the comments, and 
the changes in the rule and in the wording of the required notice of 
employee rights occasioned by the comments, are explained below. (In 
his dissent, Board Member Hayes raises a number of points that are also 
made in some of the comments. The Board's responses to those comments 
should be understood as responding to the dissent as well.) \10\
---------------------------------------------------------------------------

    \10\ The Board majority's reasoning stands on its own. By its 
silence, the majority does not adopt any characterization made by 
the dissent of the majority's rationale or motives.

---------------------------------------------------------------------------

[[Page 54008]]

II. Authority

    Section 6 of the NLRA, 29 U.S.C. 156, provides that ``The Board 
shall have authority from time to time to make, amend, and rescind, in 
the manner prescribed by the Administrative Procedure Act [5 U.S.C. 
553], such rules and regulations as may be necessary to carry out the 
provisions of this Act.'' As discussed in detail below, the Board 
interprets Section 6 as authorizing the rule.

A. The Board's Section 6 Rulemaking Authority

    Numerous comments dispute the Board's statutory authority to enact 
the proposed rule. Many note the fact that the Board's rulemaking is 
constrained by Congressional intent as evidenced in its enabling 
statute. For instance, the American Trucking Association quotes a Ninth 
Circuit case explaining that Section 6 ``does not authorize the Board 
to promulgate rules and regulations which have the effect of enlarging 
its authority beyond the scope intended by Congress,'' \11\ and 
similarly, the Motor & Equipment Manufacturers Association asserts, ``A 
regulation cannot stand if it is contrary to the statute.'' \12\ The 
Board agrees that it may not exercise its rulemaking authority in a way 
contrary to that intended by Congress, but for the reasons discussed 
below it also does not believe that it has done so in this rule.
---------------------------------------------------------------------------

    \11\ Gen. Eng'g, Inc. v. NLRB, 341 F.2d 367, 374 (1965).
    \12\ Citing United States v. O'Hagan, 521 U.S. 642, 673 (1997). 
However, the Supreme Court actually held there that an agency's 
interpretation of its enabling statute must be given ``controlling 
weight unless it is arbitrary, capricious, or manifestly contrary to 
the statute.'' (quoting Chevron U.S.A. Inc. v. Natural Res. Def. 
Council, Inc., 467 U.S. 837, 844 (1984)). There, the Court upheld 
the rule and found it was not arbitrary, capricious, or manifestly 
contrary to the statute.
---------------------------------------------------------------------------

    Several comments assert that because NLRA Section 6 is written in 
general, rather than specific, terms, the Board is not empowered to 
enact the proposed rule. For example, Associated Builders and 
Contractors argues that ``the lack of express statutory language under 
Section 6 of the NLRA to require the posting of a notice of any kind 
`is a strong indicator, if not dispositive, that the Board lacks the 
authority to impose such a requirement * * *.' '' \13\ And the Heritage 
Foundation likewise argues that the Board's reliance upon its general 
Section 6 rulemaking authority does not suffice to meet the 
Administrative Procedure Act's requirement that the NPRM must 
``reference the legal authority under which the rule is proposed.'' 
\14\
---------------------------------------------------------------------------

    \13\ Quoting Member Hayes' dissent, 75 FR 80415.
    \14\ See 5 USC 553(b)(2). For this conclusion, the Heritage 
Foundation cites Global Van Lines, Inc., v. ICC, 714 F.2d 1290, 
1297-98 (5th Cir. 1983). But Global Van Lines did not find that a 
general statement of authority can never meet the APA's requirements 
to specify the legal authority for the rule. Instead, the Fifth 
Circuit held that that portion of the APA is violated when an agency 
chooses to rely on additional statutory provisions in support of its 
rule for the first time on appeal, and those grounds do not appear 
elsewhere in the administrative record. See id. at 1298-99. Here, in 
contrast, the grounds for the Board's rule are clearly laid out in 
subsection B, Statutory Authority, below.
---------------------------------------------------------------------------

    The Board believes that these comments are in error because the 
courts' construction of other statutes' general rulemaking authority, 
as well as Section 6 in particular, fully support its reading of this 
statutory provision. In fact, earlier this year, the Supreme Court 
issued a decision in Mayo Foundation for Medical Education and Research 
v. United States \15\ (discussed more fully below), unanimously 
reaffirming the principle that a general grant of rulemaking authority 
fully suffices to confer legislative (or binding) rulemaking authority 
upon an agency.
---------------------------------------------------------------------------

    \15\ 131 S.Ct. 704, 713-14 (2011).
---------------------------------------------------------------------------

    Even prior to Mayo, a long line of both non-NLRA and NLRA cases 
supported reading Section 6 in the manner suggested by the Board. Over 
forty years ago, in Thorpe v. Housing Authority,\16\ the Supreme Court 
found that the expansive grant of rulemaking authority in Section 8 of 
the Housing Act was sufficient to grant legislative rulemaking power to 
the Department of Housing and Urban Development. The Court further 
noted that ``[s]uch broad rule-making powers have been granted to 
numerous other federal administrative bodies in substantially the same 
language.'' \17\ A few years later, in Mourning v. Family Publication 
Services,\18\ the Court reaffirmed its stance in Thorpe:
---------------------------------------------------------------------------

    \16\ 393 U.S. 268 (1969).
    \17\ Id. at 277 n. 28 (citations omitted). The rulemaking grant 
there at issue provided that HUD may, ``from time to time * * * 
make, amend, and rescind such rules and regulations as may be 
necessary to carry out the provisions of this Act,'' id. at 277, 
quite similar to Section 6 of the NLRA.
    \18\ 411 U.S. 356 (1973).

    Where the empowering provision of a statute states simply that 
the agency may `make * * * such rules and regulations as may be 
necessary to carry out the provisions of this Act,' we have held 
that the validity of a regulation promulgated thereunder will be 
sustained so long as it is `reasonably related to the purposes of 
the enabling legislation.' \19\
---------------------------------------------------------------------------

    \19\ Id. at 369 (quoting Thorpe, 393 U.S. at 280-81).

    Following the Supreme Court's lead, key circuit decisions then 
extended the notion that broad grants of rulemaking authority conveyed 
legislative rulemaking power.\20\ Although the Board had historically 
chosen to make policy by adjudications, the Supreme Court, consistent 
with the non-NLRA case law, used a pair of Board enforcement cases to 
unanimously emphasize the existence of the Board's legislative 
rulemaking authority, NLRB v. Wyman-Gordon Co.\21\ and NLRB v. Bell 
Aerospace.\22\
---------------------------------------------------------------------------

    \20\ Nat'l Ass'n. of Pharm. Mfrs. v. FTC, 637 F.2d 877, 880 (2d 
Cir. 1981) (``this generous construction of agency rulemaking 
authority has become firmly entrenched''); Nat'l Petroleum Refiners 
Ass'n v. FTC, 482 F.2d 672, 686 (D.C. Cir. 1973) (``plain, expansive 
language'' of the rulemaking grant at issue, together with the 
``broad, undisputed policies'' meant to be furthered by Congress's 
enactment of the Federal Trade Commission Act of 1914, sufficed to 
grant the FTC substantive rulemaking authority).
    \21\ 394 U.S. 759, 764 (1969) (plurality opinion of Fortas, J., 
joined by Warren, C.J., Stewart, J., and White, J.), 770 (Black, J., 
Marshall, J., and Brennan, J), 777, 779 (Douglas, J.), 783 n. 2 
(Harlan, J.).
    \22\ 416 U.S. 267, 295 (1974) (majority opinion of Powell, J., 
and dissenting opinion of White, J. (and three other justices)).
---------------------------------------------------------------------------

    In 1991, after the Board enacted a rule involving health care 
units, the Supreme Court unanimously upheld that rule in American 
Hospital Association v. NLRB.\23\ The Supreme Court found that that the 
general grant of rulemaking authority contained in Section 6 of the Act 
``was unquestionably sufficient to authorize the rule at issue in this 
case unless limited by some other provision in the Act.'' \24\ As in 
AHA, there is no such limitation here on the Board's authority to enact 
the proposed Rule, as explained further below. As Senator Tom Harkin 
and Representative George Miller \25\ emphasized in their comment, the 
Supreme Court in AHA examined ``the structure and the policy of the 
NLRA,'' in order to conclude:
---------------------------------------------------------------------------

    \23\ 499 U.S. 606 (1991) (AHA).
    \24\ Id. at 609-10 (emphasis added).
    \25\ (Hereafter, Harkin and Miller.) Senator Harkin is the 
Chairman of the Senate Committee on Health, Education, Labor, and 
Pensions. Representative Miller is Ranking Member on the House 
Committee on Education and the Workforce.

    As a matter of statutory drafting, if Congress had intended to 
curtail in a particular area the broad rulemaking authority granted 
in Sec.  6, we would have expected it to do so in language expressly 
describing an exception from that section or at least referring 
---------------------------------------------------------------------------
specifically to the section.\26\

    \26\ Id. at 613 (emphasis added).
---------------------------------------------------------------------------

    Thus, the Court could not have been clearer that unless the Board 
is ``expressly'' limited in some manner, Section 6 empowers the Board 
to make ``such rules and regulations as may be necessary to carry out 
the provisions of this Act.'' This point was underscored

[[Page 54009]]

in a Wagner Act-era Senate hearing, as cited by Americans for Limited 
Government (ALG), in which it was acknowledged that the language of 
Section 6 indeed grants ``broad powers'' to the Board.\27\
---------------------------------------------------------------------------

    \27\ Statement of Donald A. Callahan, U.S. Senate Committee on 
Education and Labor, March 29, 1935, Legislative History of the 
National Labor Relations Act, U.S. Government Printing Office, 1949, 
p. 2002.
---------------------------------------------------------------------------

    And in January of this year, a unanimous Supreme Court, in Mayo 
Foundation for Medical Education and Research v. United States, 
affirmed this key principle that a broad grant of statutory rulemaking 
authority conveys authority to adopt legislative rules.\28\ Mayo 
concerned in part the question of how much deference a Treasury 
Department tax regulation should receive. In Mayo, an amicus argued 
that the Treasury Department's interpretation should receive less 
deference because it was issued under a general grant of rulemaking 
authority, as opposed to an interpretation issued under a specific 
grant of authority.\29\ The Court responded by first explaining its 
earlier holding in U.S. v. Mead, that Chevron deference is appropriate 
``when it appears that Congress delegated authority to the agency 
generally to make rules carrying the force of law, and that the agency 
interpretation claiming deference was promulgated in the exercise of 
that authority.'' \30\ Then, in significant part, the Court observed:
---------------------------------------------------------------------------

    \28\ 131 S. Ct. 704, 713-14 (2011).
    \29\ Id. at 713.
    \30\ Id. (quoting United States v. Mead, 533 U.S. 218, 226-27 
(2001)); see also Chevron, 467 U.S. at 842-43 (announcing two-part 
framework for determining whether courts should grant deference to 
agency interpretations of enabling statutes).

    Our inquiry in that regard does not turn on whether Congress's 
delegation of authority was general or specific.
* * * * *
The Department issued the full-time employee rule pursuant to the 
explicit authorization to ``prescribe all needful rules and 
regulations for the enforcement'' of the Internal Revenue Code. 26 
U.S.C. 7805(a). We have found such ``express congressional 
authorizations to engage in the process of rulemaking'' to be ``a 
very good indicator of delegation meriting Chevron treatment.'' \31\
---------------------------------------------------------------------------

    \31\ Mayo, 131 S. Ct. at 713-14 (emphasis added and citations 
omitted).

    And so, all nine members of the Supreme Court agreed on the 
following key principle: an express, albeit general, grant of 
rulemaking authority is fully sufficient for an agency to receive 
Chevron deference for its rulemaking. It follows that a broad grant of 
rulemaking authority will suffice for the agency to engage in 
legislative rulemaking in the first place. Thus, the Supreme Court's 
rulings continue to fully support a broad construction of Section 6.
    Disputing this conclusion, ALG asserts that Section 6 was intended 
to be used ``primarily'' for procedural rulemaking, and cites a Senate 
report from the Wagner Act's legislative history. That Senate report 
explains: ``[i]n no case do the rules have the force of law in the 
sense that criminal penalties or fines accrue for their violation, and 
it seems sufficient that the rules prescribed must be `necessary to 
carry out the provisions' of the act.'' \32\ The Board disagrees. The 
cited language merely proclaims the obvious, that no criminal penalties 
or fines accrue for violating the Board's rules. However, laws such as 
the NLRA that do not impose criminal penalties or fines for their 
violation can also have the ``force of law'' (which is perhaps why the 
Senate report used the limiting phrase ``in the sense of''). The 
Supreme Court has previously recognized that final Agency orders under 
Sections 10 (e) and (f) of the Act, despite their non-self enforcing 
nature, have ``the force and effect of law.'' \33\ So too, do the 
Board's rules have the force and effect of law, as held by the Supreme 
Court in AHA.\34\
---------------------------------------------------------------------------

    \32\ See Comparison of S. 2926 (73d Congress) and S. 1958 (74th 
Congress) 24 (Comm. Print 1935), reprinted in 1 Legislative History 
of the National Labor Relations Act, 1935, (1949) at 1349.
    \33\ NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54 (1975) 
(ordering disclosure of such Agency opinions under the FOIA, and 
quoting legislative history of the FOIA to that effect, H.R. Rep. 
No. 1497, p. 7, U.S. Code Cong. & Admin. News, 1966, p. 2424).
    \34\ 499 U.S. at 609-10. But even if one were to construe the 
report in the way advocated by the comment, such reports themselves 
do not have the force and effect of law, see Lincoln v. Vigil, 508 
U.S. 182, 192 (1993); AHA, 499 U.S. at 616, and thus at best are 
only potential evidence of legislative intent.
---------------------------------------------------------------------------

    Several comments discuss whether Board Rule 103.20, which mandates 
the posting of an election notice in a workplace three working days 
prior to a representation election, should be considered analogous to 
the proposed rule. The United Food and Commercial Workers International 
Union (UFCW) comments that the election rule is, like the proposed 
rule, only minimally burdensome and further noted that it has never 
been challenged.\35\ ALG disagrees that the election rule should be 
considered analogous here, because although in the election context a 
notice posting is the most feasible means to inform employees about an 
upcoming election that is occurring at a specific place and time, that 
is not the case in the NLRA rights context, in which employees can just 
search the Internet to find out more information. The Board agrees with 
the UFCW that posting a notice is a minimally burdensome way to ensure 
that employees receive certain information, although obviously, the 
proposed notice will reach many more employers over a much longer 
period of time than do election notices. And ALG's acknowledgment that 
a notice posting in the workplace is in fact sometimes the most 
feasible means to inform employees of important information supports 
the Board's belief, explained below, that workplace notice posting is a 
more efficient way of informing employees of their NLRA rights than 
relying on information available on the Internet.
---------------------------------------------------------------------------

    \35\ However, it is incorrect that the rule has never been 
challenged; it has been challenged and upheld. See Pannier Corp. v. 
NLRB, 120 F.3d 603, 606-07 (6th Cir. 1997) (rejecting an as-applied 
challenge to Rule 103.20).
---------------------------------------------------------------------------

    A few comments argue that the Board is a law enforcement agency 
only, and should not be engaging in rulemaking for that reason. One 
comment asserts that ``Congress did not intend to ``empower the NLRB to 
be a rulemaking body, but rather an investigatory/enforcement agent of 
the NLRA.'' \36\ The Board responds that by enacting Section 6, 
Congress plainly and explicitly intended to, and did, ``empower the 
NLRB to be a rulemaking body.'' And, as shown above, AHA conclusively 
found that the Board is empowered to use its rulemaking powers, as the 
Court had previously indicated in Wyman-Gordon and Bell Aerospace.\37\
---------------------------------------------------------------------------

    \36\ Comment of Manufacturers' Association of South Central 
Pennsylvania.
    \37\ In National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 
(D.C. Cir. 1973), the court rejected the argument that the FTC's 
prosecutorial functions rendered it unsuitable for issuing rules. By 
way of example, it noted that the NLRB is similar to the FTC in its 
methods of adjudication and enforcement, but the Supreme Court had 
repeatedly encouraged the Board to utilize its rulemaking powers. 
Id. at 684.
---------------------------------------------------------------------------

    A joint comment submitted by Douglas Holtz-Eakin and Sam Batkins 
argues against the Board's assertion of Section 6 authority here by 
asserting that ``the Supreme Court has circumscribed NLRB rulemaking in 
the past: `The deference owed to an expert tribunal cannot be allowed 
to slip into a judicial inertia which results in the unauthorized 
assumption by an agency of major policy decisions properly made by 
Congress.' '' However, that comment neglects to provide the citation 
for that quotation, American Ship Building Co. v. NLRB,\38\ which was 
not a rulemaking case but an adjudication. In any event, the Board does 
not agree that this rule presumes to make a major policy decision 
properly made by Congress alone. As explained in subsection B,

[[Page 54010]]

Statutory Authority, below, the Board believes that it has been 
Congressionally authorized to make this regulatory decision in the 
interests of carrying out the provisions of the Act.
---------------------------------------------------------------------------

    \38\ 380 U.S. 300, 318 (1965).
---------------------------------------------------------------------------

    Many comments argue that the Board should heed the use of the word 
``necessary'' in Section 6. For instance, the Portland Cement 
Association comments that Section 6 requires the Board to demonstrate 
that: (1) The specific rule being proposed is, in fact, necessary, and 
(2) the adoption of the proposed rule will carry out one or more 
specific provisions of the Act.\39\ The Board believes, for the reasons 
expressed in subsection C, Factual Support, below, that the requisite 
showing of necessity has been made. And, as explained below, the 
adoption of the proposed rule is consistent with Section 1 and will 
help effectuate Sections 7, 8, 9 and 10 of the NLRA.
---------------------------------------------------------------------------

    \39\ See also comment of Americans for Limited Government, 
citing to AFL-CIO v. Chao, 409 F.3d 377, 391 (D.C. Cir. 2005) for 
the same principle.
---------------------------------------------------------------------------

    The Board, however, disagrees with the Motor & Equipment 
Manufacturers Association's assertion based upon the case of West 
Virginia State Board of Education v. Barnette \40\ that the Board needs 
to show ``a grave and immediate danger'' before enacting a rule. First, 
that case held that that very rigorous standard of review is required 
only where a First Amendment freedom is alleged to have been infringed. 
The Court further noted that where the First Amendment is not 
implicated, the government may regulate an area so long as it has a 
``rational basis'' for doing so. As explained in subsection B, 
Statutory Authority, below, this rule infringes upon no First Amendment 
interests, and consequently, the rule should be judged on a standard 
similar to the ``rational basis'' test laid out in Barnette. It was in 
fact just such a deferential standard which the Supreme Court used to 
examine the Board's health care rule in AHA. There, the Court found 
that even if it read Section 9 to find any ambiguity, it still would 
have deferred to the Board's ``reasonable interpretation of the 
statutory text,'' and found the Board authorized under Sections 6 and 9 
to enact the health care bargaining unit rule at issue.\41\ No ``grave 
and immediate danger'' was found to be required prior to the Board 
enacting that rule. This ruling was also consistent with the Supreme 
Court's earlier holdings in Thorpe and Mourning, in which regulations 
promulgated under broadly phrased grants of authority needed to be only 
``reasonably related to the purposes of the enabling legislation.'' 
\42\ For the reasons shown below, that standard is more than met in the 
present rule.
---------------------------------------------------------------------------

    \40\ 319 U.S. 624, 639 (1943).
    \41\ 499 U.S. at 614.
    \42\ Mourning, 411 U.S. at 369 (quoting Thorpe, 393 U.S. at 280-
81).
---------------------------------------------------------------------------

B. The Board's Statutory Authority To Issue This Rule

    The National Labor Relations Act does not directly address an 
employer's obligation to post a notice of its employees' rights arising 
under the Act or the consequences an employer may face for failing to 
do so. However, as stated, NLRA Section 6 empowers the Board to 
promulgate legislative rules ``as may be necessary to carry out the 
provisions'' of the Act. 29 U.S.C. 156. A determination of necessity 
under Section 6 made by the Board, as administrator of the NLRA, is 
entitled to deference. See Ragsdale v. Wolverine World Wide, Inc., 535 
U.S. 81, 86 (2002).
    Furthermore, even in the absence of express rulemaking authority, 
``the power of an administrative agency to administer a congressionally 
created * * * program necessarily requires the formulation of policy 
and the making of rules to fill any gap left, implicitly or explicitly, 
by Congress.'' Morton v. Ruiz, 415 U.S. 199, 231 (1974). Under the 
well-known test articulated by the Supreme Court in Chevron U.S.A. Inc. 
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), courts 
will defer to the Board's reasonable interpretation of a gap left by 
Congress in the NLRA.
    An examination of the provisions of the whole law demonstrate how 
the notice-posting rule is a legitimate exercise of both legislative 
rulemaking authority under Section 6 and implied gap-filling authority 
under Chevron, 467 U.S. at 843. Section 1 of the NLRA explains that 
Congress deliberately chose the means of ``encouraging the practice and 
procedure of collective bargaining'' and ``protecting the exercise of 
workers of full freedom of association, self-organization, and 
designation of representatives of their own choosing'' in order to 
combat the substantial burdens on commerce caused by certain employer 
and labor union practices as well as by the inherent ``inequality of 
bargaining power between employees * * * and employers.'' 29 U.S.C. 
151.\43\ Section 7 therefore sets forth the core rights of employees 
``to self-organization''; ``to form, join, or assist labor 
organizations''; ``to bargain collectively''; and ``to engage in other 
concerted activities''; as well as the right ``to refrain from any or 
all such activities.'' Id. Sec.  157. Section 8 defines and prohibits 
union and employer ``unfair labor practices'' that infringe on 
employees' Section 7 rights, id. Sec.  158, and Section 10 authorizes 
the Board to adjudicate unfair labor practice claims, id. Sec.  160, 
subject to the NLRA's procedural six-month statute of limitations, see 
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11 (1982). 
Finally, Section 9 authorizes the Board to conduct representation 
elections and issue certifications. 29 U.S.C. 159.
---------------------------------------------------------------------------

    \43\ These regulations are entirely compatible with the national 
labor policy, as expressed in Section 1, ``to eliminate the causes 
of certain substantial obstructions to the free flow of commerce and 
to mitigate and eliminate these obstructions when they have 
occurred.'' 29 U.S.C. 151 (fifth paragraph). As explained below, the 
Board's ability to ``eliminate'' the causes of labor strife and 
depressed wage rates, ``which have the intent or necessary effect of 
burdening or obstructing commerce,'' id., depends on workers' 
knowledge of their rights and the protections provided by the NLRB. 
The Board therefore rejects the argument of the Manufacturer's 
Association of South Central Pennsylvania that both the notice-
posting rule and the Board's general assertion of rulemaking 
authority are inconsistent with Section 1.
---------------------------------------------------------------------------

    Notably, the NLRA does not give the Board or its General Counsel 
roving investigatory powers. Although the Board is specifically 
empowered to ``prevent'' unfair labor practices, id. Sec.  160(a), 
``[t]he Board may not act until an unfair labor practice charge is 
filed * * * alleging a violation of the Act.'' 2 The Developing Labor 
Law 2683 (John E. Higgins, Jr. ed., 5th ed. 2006). In addition, 
certification ``procedures are set in motion with the filing of a 
representation petition.'' Id. at 2662. In both instances, the 
initiating document is filed by a private party. Id. at 2683 (citing 29 
CFR 102.9); id. at 2662-63 (citing 29 U.S.C. 159(c)(1)(A), (B), and 
(e)(1)).
    Enforcement of the NLRA and effectuation of Congress's national 
labor policy therefore depend on the existence of outside actors who 
are not only aware of their rights but also know where they may seek to 
vindicate them within appropriate timeframes. The Department of Labor 
made a similar finding in an analogous rulemaking proceeding under the 
Fair Labor Standards Act: ``effective enforcement of the [FLSA] depends 
to a great extent upon knowledge on the part of covered employees of 
the provisions of the act and the applicability of such provisions to 
them, and a greater degree of compliance with the act has been effected 
in situations where employees are aware of their rights under the 
law.'' 14 FR 7516, 7516 (Dec. 16, 1949). Given the direct relationship 
between employees' timely awareness of their rights under the NLRA and 
the Board's

[[Page 54011]]

ability to protect and enforce those rights, this rule is ``necessary'' 
for purposes of Section 6.
    Aside from the rule's manifest necessity, the notice posting 
requirement fills a Chevron-type gap in the NLRA's statutory scheme. 
Thus, as discussed, the purpose of Section 1, as implemented in 
Sections 7 and 8, is to encourage the free exercise and enforcement of 
the Act's provisions, and fulfillment of that purpose depends on the 
private initiative of employees and employers to commence Board 
representation proceedings pursuant to Section 9 and Board unfair labor 
practice proceedings pursuant to Section 10. The effective working of 
the NLRA's administrative machinery therefore presupposes that workers 
and their employers have knowledge of the rights afforded by the 
statute and the means for their timely enforcement. The statute, 
however, has no provision with respect to making that knowledge 
available, a subject about which the statute is completely silent.
    This statutory gap has always been present but was of less 
significance in earlier years when the density of union organization 
was greater, since, as is widely recognized, unions have been a 
traditional source of information about the NLRA's provisions. See 
Lechmere, Inc. v. NLRB, 502 U.S. 527, 531-32 (1992) (reaffirming that 
the Section 7 rights of employees interested in union organization 
depend to some extent on their having access to unions); Harlan Fuel 
Co., 8 N.L.R.B. 25, 32 (1938) (holding that the rights guaranteed to 
employees by Section 7 include ``full freedom to receive aid, advice 
and information from others concerning [their self-organization] 
rights''); cf. Chamber of Commerce of the United States v. Brown, 554 
U.S. 60, 68 (2008) (observing that Section 7 ``implies an underlying 
right to receive information''). Moreover, as rates of unionization 
have declined, employees are less likely to have experience with 
collective bargaining or to be in contact with other employees who have 
had such experience. The statutory gap is thus now important to the 
Board's administration of the NLRA and its role in enforcing employees' 
rights.
    As the Supreme Court has observed,

    The responsibility to adapt the Act to changing patterns of 
industrial life is entrusted to the Board. * * * It is the province 
of the Board, not the courts, to determine whether or not the 
``need'' [for a Board rule] exists in light of changing industrial 
practices and the Board's cumulative experience in dealing with 
labor-management relations. For the Board has the ``special function 
of applying the general provisions of the Act to the complexities of 
industrial life,'' and its special competence in this field is the 
justification for the deference accorded its determination.

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (citations 
omitted). Consistent with this understanding of the Board's role, the 
notice-posting regulations represent an attempt to ``adapt the Act'' in 
light of recent realities and ``the Board's cumulative experience.'' 
Id. The rule is wholly consistent with the aims of the NLRA, and the 
``need'' for it now is heightened given the ``changing patterns of 
industrial life.'' Id.
    For all these reasons, this rule is entitled to deference 
regardless of how it is characterized because it is ``reasonably 
related to the purposes of the enabling legislation,'' Thorpe, 393 U.S. 
at 280-81, and constitutes a `` `reasonable interpretation' of the 
enacted text,'' Mayo, 131 S. Ct. at 714 (quoting Chevron, 467 U.S. at 
844).
    In response to the NPRM, a number of arguments have been made 
challenging the Board's statutory authority to promulgate the notice 
posting rule. As explained below, the Board does not find merit in any 
of these arguments.
1. Limitations on the Board's Rulemaking Authority Implied by Sections 
9 and 10 of the Act
    Of the comments that address the Board's statutory authority to 
issue this rule, many express agreement with the dissenting views of 
Member Hayes that were published in the NPRM. Member Hayes criticized 
the basis for the rule and questioned the Board's statutory authority 
to promulgate and enforce it. See 75 FR 80415. He specifically referred 
to Section 10 as an obstacle to the proposed rule, because it 
``indicate[d] to [him] that the Board clearly lacks the authority to 
order affirmative notice-posting action in the absence of an unfair 
labor practice charge filed by an outside party.'' Id.
    Many comments submitted in response to the NPRM, such as those of 
the Texas Association for Home Care & Hospice and those of the 
Independent Bakers Association, interpret Section 10 to prohibit the 
Board from ordering any affirmative act that does not address the 
consequences of an unfair labor practice. Although this proposition may 
be true when the Board acts through adjudication--the administrative 
function to which Section 10 directly applies--it does not perforce 
apply when the Board specifies affirmative requirements via rulemaking 
under Section 6. See Clifton v. FEC, 114 F.3d 1309, 1312 (1st Cir. 
1997) (``Agencies are often allowed through rulemaking to regulate 
beyond the express substantive directives of the statute, so long as 
the statute is not contradicted.'') (citing Mourning). If it did, then 
the Board's longstanding rule mandating that employers post an election 
notice three days before a representation election would be subject to 
challenge on that ground. See 29 CFR 103.20; see also Pannier Corp., 
Graphics Div. v. NLRB, 120 F.3d 603, 606-07 (6th Cir. 1997) (rejecting 
an as-applied challenge to Sec.  103.20). Furthermore, under American 
Hospital Association, the Board's exercise of its broad rulemaking 
authority under Section 6 is presumed to be authorized unless elsewhere 
in the Act there is ``language expressly describing an exception from 
that section or at least referring specifically to the section.'' 499 
U.S. at 613. Section 10 does not refer to the Board's Section 6 
authority.
    Some comments, such as those of the Council on Labor Law Equality 
(COLLE), contend that the Board has no authority whatsoever to 
administer the NLRA unless a representation petition or unfair labor 
practice charge has been filed under Sections 9 or 10, respectively. 
The Board declines to adopt such a narrow view of its own authority. 
Certainly, the Board cannot issue certifications or unfair labor 
practice orders via rulemaking proceedings. But that is not what this 
rule does. As explained above, by promulgating the notice-posting rule, 
the Board is taking a modest step that is ``necessary to carry out the 
provisions'' of the Act, 29 U.S.C. 156, and that also fills a statutory 
gap left by Congress in the NLRA.
    Moreover, the argument advanced by COLLE and others fails to 
appreciate that the Board's authority to administer the Act is not 
strictly limited to those means specifically set forth in the NLRA. 
Rather, as the Supreme Court has recognized, the NLRA impliedly 
authorizes the Board to take appropriate measures ``to prevent 
frustration of the purposes of the Act.'' NLRB v. Nash-Finch Co., 404 
U.S. 138, 142 (1971). By way of example, the Supreme Court pointed out 
that its decisions had recognized the Board's implied authority to 
petition for writs of prohibition against premature invocation of the 
review jurisdiction of the courts of appeals, see In re NLRB, 304 U.S. 
486, 496 (1938); to institute contempt proceedings for violation of 
enforced Board orders, see Amalgamated Util. Workers v. Con. Edison 
Co., 309 U.S. 261 (1940); and to file claims in bankruptcy for Board-
awarded backpay, see Nathanson v. NLRB, 344 U.S. 25 (1952). Relying on

[[Page 54012]]

that precedent in Nash-Finch Co., the Supreme Court concluded that the 
Board also had implied authority ``to enjoin state action where [the 
Board's] federal power preempts the field.'' 404 U.S. at 144. Like 
these judicially recognized powers, the notice-posting requirement that 
is the subject of this rulemaking has not been specifically provided 
for by Congress. But the cited cases demonstrate that Congress need not 
expressly list a power for the Board to legitimately exercise it. 
Indeed, the notice-posting requirement is not even an implied power of 
the Board in the same sense as those previously mentioned. Rather, it 
is the product of the Board's exercise of express rulemaking authority 
and inherent gap-filling authority, both of which have been delegated 
to the Board by Congress.
2. The First Amendment and Section 8(c) of the NLRA
    A handful of commenters argue that the notice-posting requirement 
violates the First Amendment to the Constitution, Section 8(c) of the 
NLRA, or both. For example, the Center on National Labor Policy, Inc. 
maintains that ``compelling an employer to post its property with a 
Notice that asserts the statutory `rights' and employer obligations, 
runs counter to constitutional views long protected by the Supreme 
Court.'' The Center also argues that the ``proposed poster would impede 
the employer's statutory right to express itself on its own property.'' 
Along these same lines, the National Right to Work Legal Defense 
Foundation, Inc. and others on whose behalf it writes contend that 
``the Board's proposal for forced speech favoring unionization directly 
conflicts with the First Amendment and longstanding federal labor 
policy under Section 8(c) that employers and unions should be able to 
choose themselves what to say about unionization.'' These concerns were 
echoed by the National Association of Wholesaler-Distributors. In 
addition, two attorneys affiliated with Pilchak Cohen & Tice, P.C., 
which they describe as ``a management-side labor and employment law 
firm,'' argue that the notice-posting requirement ``tramples upon 
employers' Free Speech rights by regulating the content of information 
that employers are required to tell employees and by compelling them to 
post the Notice containing pro-union NLRA rights, when it is almost 
assuredly not the employers' prerogative to do so.'' The Independent 
Association of Bakers goes further and characterizes the regulation as 
an unconstitutional ``gag order'' that ``prohibits the employer from 
telling the truth about the impact a union might pose to his 
business.'' The Board rejects these arguments.
    As an initial matter, requiring a notice of employee rights to be 
posted does not violate the First Amendment, which protects the freedom 
of speech. Indeed, this rule does not involve employer speech at all. 
The government, not the employer, will produce and supply posters 
informing employees of their legal rights. The government has sole 
responsibility for the content of those posters, and the poster 
explicitly states that it is an ``official Government Notice''; nothing 
in the poster is attributed to the employer. In fact, an employer has 
no obligation beyond putting up this government poster. These same 
considerations were present in Lake Butler Apparel Co. v. Secretary of 
Labor, 519 F.2d 84, 89 (5th Cir. 1975), where the Fifth Circuit 
rejected as ``nonsensical'' an employer's First Amendment challenge to 
the Occupational Safety and Health Act requirement that it post an 
``information sign'' similar to the one at issue here. As in Lake 
Butler, an employer subject to the Board's rule retains the right to 
``differ with the wisdom of * * * this requirement even to the point * 
* * of challenging its validity. * * * But the First Amendment which 
gives him the full right to contest validity to the bitter end cannot 
justify his refusal to post a notice * * * thought to be essential.'' 
Id.; see also Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309-10 (10th 
Cir. 1976) (dicta) (rejecting a constitutional challenge to a 
requirement that an employer post a copy of an OSHA citation).
    But even if the Board's notice-posting requirement is construed to 
compel employer speech, the Supreme Court has recognized that 
governments have ``substantial leeway in determining appropriate 
information disclosure requirements for business corporations.'' Pac. 
Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 15 n.12 (1985). This 
discretion is particularly wide when the government requires 
information disclosures relevant to the employment relationship. Thus, 
as the D.C. Circuit has observed, ``an employer's right to silence is 
sharply constrained in the labor context, and leaves it subject to a 
variety of burdens to post notices of rights and risks.'' UAW-Labor 
Employment & Training Corp. v. Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) 
(UAW v. Chao) (citing Lake Butler, 519 F.2d at 89). Accordingly, the 
Board's notice-posting requirement is not susceptible to a First 
Amendment challenge.\44\
---------------------------------------------------------------------------

    \44\ The decision of the intermediate state court in Smith v. 
Fair Employment & Housing Commission, 30 Cal. Rptr. 2d 395 (Cal. Ct. 
App. 1994), rev'd on other grounds, 913 P.2d 909 (Cal. 1996), lends 
no support to arguments challenging these regulations on First 
Amendment grounds. There, the California Court of Appeal held that a 
landlord's right to freedom of speech was ``implicate[d],'' id. at 
401-02, by a state fair housing agency's remedial order requiring 
her to sign, post, and distribute notices ``setting out the 
provisions of [the fair housing statute], the outcome of th[e] case, 
and the statement that [she] practices equal housing opportunity.'' 
913 P.2d at 914. The Smith case is not persuasive here because the 
notice at issue in Smith would not merely have set forth the rights 
of prospective buyers or renters but also would have contained a 
signed statement from the landlord which would have given the false 
appearance that she agreed with the state's fair housing ``concepts 
and rules,'' despite her religious beliefs to the contrary. 30 Cal. 
Rptr. 2d at 401. That feature of the case has no parallel here. 
Here, by contrast, employers are not required to sign the 
informational notice, and as noted, nothing in the poster is 
attributed to them. The Board further notes that the Smith decision 
is not authoritative because it was superseded by the California 
Supreme Court's grant of review in that case. See 913 P.2d at 916 
n.*.
---------------------------------------------------------------------------

    The Board is equally satisfied that the rule does not violate NLRA 
Section 8(c), 29 U.S.C. 158(c), which creates a safe harbor for 
noncoercive speech in the unfair labor practice area. Specifically, 
Section 8(c) shields from unfair labor practice liability ``[t]he 
expressing of any views, argument or opinion,'' provided that ``such 
expression contains no threat of reprisal or force or promise of 
benefit.'' Id. (emphasis added). A government poster containing 
accurate, factual information about employees' legal rights ``merely 
states what the law requires.'' Lake Butler, 519 F.2d at 89. For that 
reason, ``[t]he posting of the notice does not by any stretch of the 
imagination reflect one way or the other on the views of the 
employer.'' Id.\45\
---------------------------------------------------------------------------

    \45\ The Employers Association of New Jersey is therefore off 
the mark when it argues that the notice-posting requirement is 
preempted under the principles of Lodge 76, International Ass'n of 
Machinists & Aerospace Workers v. Wisconsin Employment Relations 
Commission, 427 U.S. 132 (1976), as an attempt to regulate employer 
speech ``about unionization and collective bargaining.'' As 
explained above, the employer's choice whether to express its own 
views, arguments, or opinions is wholly unaffected by a requirement 
to post a government-provided notice summarizing what the law 
requires. Indeed, consistent with both Machinists and the policy of 
Section 8(c) ```to encourage free debate on issues dividing labor 
and management,''' Brown, 554 U.S. at 67 (quoting Linn v. United 
Plant Guard Workers, Local 114, 383 U.S. 53, 62 (1966)), employers 
remain free under this rule--as they have in the past--to express 
noncoercive views regarding the exercise of these rights as well as 
others. See, e.g., United Techs. Corp., 274 N.L.R.B. 609, 609, 618-
20, 624-26 (1985), enforced sub nom. NLRB v. Pratt & Whitney Air 
Craft Div.v., United Techs. Corp., 789 F.2d 121 (2d Cir. 1986); 
Warrensburg Bd. & Paper Corp., 143 N.L.R.B. 398, 398-99 (1963), 
enforced, 340 F.2d 920 (2d Cir. 1965). For this reason, the Board 
finds it unnecessary to adopt the proposal made by the Pilchak 
attorneys to revise the rule to specify that employers ``may post a 
notice of equal dignity which advises employees of * * * additional 
rights and realities.'' Alternatively, the Pilchak attorneys propose 
that the Board amend the rule to permit employers to ``alter the 
Poster and include additional rights.'' Adopting this suggestion 
would compromise the integrity of the notice as a communication from 
the government. It, too, is therefore rejected.

---------------------------------------------------------------------------

[[Page 54013]]

    But even if the new rule is understood to compel employer speech, 
Section 8(c) ```merely implements the First Amendment.''' Brown, 554 
U.S. at 67 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617 
(1969)). Thus, if a First Amendment challenge to the rule must fail, so 
too must a challenge based on Section 8(c). Such was the holding of the 
D.C. Circuit in UAW v. Chao. There, the court was presented with a 
preemption argument, grounded in Section 8(c), challenging a Federal 
procurement regulation that required contractors to post a notice 
informing their employees of certain NLRA rights. The D.C. Circuit 
interpreted Section 8(c) as coextensive with the scope of free speech 
rights protected by the First Amendment and upheld the procurement 
regulation in light of well-established free speech jurisprudence in 
the labor context. See 325 F.3d at 365.
3. Lack of Contemporaneity With the Enactment of the NLRA
    Several comments attack the notice-posting regulation for its lack 
of contemporaneity with the enactment of the NLRA. For example, many 
comments criticize the regulation by noting that ``this is a new rule 
interpreted into the Act 75 years after its passage.'' The Board 
rejects these contentions for two reasons.
    First, the Supreme Court has repeatedly ``instructed that `neither 
antiquity nor contemporaneity with [a] statute is a condition of [a 
regulation's] validity.''' Mayo, 131 S. Ct. at 712 (alterations in 
original) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740 
(1996)); see also Smiley, 517 U.S. at 740 (deferring to a regulation 
``issued more than 100 years after the enactment'' of the statutory 
provision that the regulation construed). Second, the argument fails to 
consider that much has changed since 1935, the year the NLRA was 
enacted. Unionization rates are one example. As pointed out in the NPRM 
and as confirmed by comments submitted by the Association of Corporate 
Counsel's Employment and Labor Law Committee, unionization rates 
increased during the early years of the Act, peaking at around 35 
percent of the workforce in the mid-1950s. But since then, the share of 
the workforce represented by labor unions has plummeted to 
approximately 8 percent. As a result, fewer employees today have 
direct, everyday access to an important source of information regarding 
NLRA rights and the Board's ability to enforce those rights.
    As noted above, ``[t]he responsibility to adapt the Act to changing 
patterns of industrial life is entrusted to the Board.'' J. Weingarten, 
Inc., 420 U.S. at 266. It would therefore be an abdication of that 
responsibility for the Board to decline to adopt this rule simply 
because of its recent vintage. Accordingly, the Board finds such 
arguments unpersuasive.
4. Comparison With Other Statutes That Contain Notice-Posting 
Requirements
    Many comments note, as the Board did in the NPRM, that several 
other labor and employment statutes enacted by Congress contain express 
notice-posting provisions. See 75 FR 80411 (listing such statutes). 
Though a few such comments, such as those of the International 
Brotherhood of Teamsters, applaud the Board for ``fill[ing] this 
glaring and indefensible gap,'' the bulk of these comments instead 
argue that the lack of a parallel statutory provision in the NLRA 
negates the existence of Board authority to issue this rule.
    The Board notes that inferences gleaned from side-by-side 
comparisons to other statutes have diminished force when an agency uses 
its gap-filling authority under Chevron. There are many possible 
reasons why Congress did not include an express notice-posting 
provision in the NLRA. ``Perhaps that body consciously desired the 
[agency] to strike the balance at this level * * *; perhaps it simply 
did not consider the question at this level; and perhaps Congress was 
unable to forge a coalition on either side of the question * * *.'' 
Chevron, 467 U.S. at 865. But, ``[f]or judicial purposes, it matters 
not which of these things occurred.'' Id. Indeed, the central premise 
behind Chevron and its progeny is that agencies should be allowed 
reasonable latitude to fill gaps arising from congressional silence or 
ambiguity. Accordingly, ``the contrast between Congress's mandate in 
one context with its silence in another suggests not a prohibition but 
simply a decision not to mandate any solution in the second context, 
i.e., to leave the question to agency discretion.'' Cheney R.R. Co. v. 
ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (labeling the expressio unius est 
exclusio alterius canon ``an especially feeble helper'' in Chevron 
cases).
    Arguments contrasting the NLRA with other federal enactments that 
contain notice-posting requirements might have some persuasive force if 
there were evidence that Congress had considered and rejected inserting 
such a requirement into the Act. However, nothing in the legislative 
history of the Act so indicates. Indeed, there is not the slightest 
hint that the omission of a notice-posting requirement was the product 
of legislative compromise and therefore implies congressional rejection 
of the idea. Cf. Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. 
Servs. Admin., 603 F.3d 365, 384-85 (7th Cir. 2010) (en banc) (Posner, 
J., concurring) (inferring a private right of action from statutory 
silence in a case where such silence was not the product of 
``legislative compromise''). For these reasons, the Board rejects the 
Motor and Equipment Manufacturers Association's unsupported suggestion 
that there has been an affirmative ``legislative determination not to 
include a posting requirement by employers that have not violated the 
Act.''
    A number of comments point out that Congress included a general 
notice-posting provision in the Railway Labor Act (RLA), which predates 
the NLRA. Given the relative proximity of these two enactments, some 
comments regard the absence of a notice-posting provision in the NLRA 
as strong evidence that Congress did not intend for there to be one. 
For reasons just explained, the Board does not find a side-by-side 
comparison with the RLA availing. In addition, the Board notes that 
although the NLRA and the RLA share several common features, the NLRA 
was not perfectly modeled after the RLA. See Bhd. of R.R. Trainmen v. 
Chi. River & Ind. R.R. Co., 353 U.S. 30, 31 n.2 (1957) (``The 
relationship of labor and management in the railroad industry has 
developed on a pattern different from other industries. The fundamental 
premises and principles of the Railway Labor Act are not the same as 
those which form the basis of the National Labor Relations Act * * 
*.'').
    Finally, the Board notes that other federal departments and 
agencies have not understood Congress's failure to include an express 
provision containing a notice-posting requirement in a federal labor or 
employment statute as a bar to such a regulatory requirement. Like the 
NLRA, the Fair Labor Standards Act (FLSA), which was passed in 1938, 
does not contain a provision requiring employers to post a notice of 
pertinent employee rights. Yet the Department of Labor adopted a notice 
requirement now codified at 29 CFR 516.4. Furthermore, the Board is 
unaware of any challenge to the Labor Department's authority to 
promulgate or enforce the FLSA notice requirement, which has been in 
effect for over 60 years. See 14 FR 7516 (Dec.

[[Page 54014]]

16, 1949), promulgating 29 CFR 516.18, the predecessor to 29 CFR 516.4.
5. The Teamsters 357 Decision
    In response to the NPRM, the U.S. Chamber of Commerce submitted a 
comment that questions ``how the proposal can be said to be consistent 
with'' the Supreme Court's decision in Local 357, International 
Brotherhood of Teamsters v. NLRB, 365 U.S. 667 (1961). Specifically, 
the Chamber accuses the Board of ignoring the Court's admonition in 
that case warning that ``[w]here * * * Congress has aimed its sanctions 
only at specific discriminatory practices, the Board cannot go farther 
and establish a broader, more pervasive regulatory scheme.'' Id. at 
675. The Chamber reads this statement out of context.
    To understand why the Board disagrees with the Chamber's view, 
further explanation of Teamsters 357 is necessary. In that case, the 
Supreme Court rejected the Board's conclusion that a union had 
committed an unfair labor practice by operating an exclusive hiring 
hall pursuant to an agreement that contained a nondiscrimination clause 
but not three additional clauses that the Board had previously declared 
in its Mountain Pacific decision to be necessary to prevent `` 
`unlawful encouragement of union membership.' '' Id. at 671 (quoting 
Mountain Pacific Chapter, 119 NLRB 883, 897 (1958)). The Court first 
noted that Congress had examined the operation of hiring halls and had 
decided not to ban them. Id. at 673-74. Next, the Court observed that 
NLRA Section 8(a)(3) `` `does not outlaw all encouragement or 
discouragement of membership in labor organizations; only such as is 
accomplished by discrimination is prohibited.' '' Id. at 674-75 
(emphasis added) (quoting Radio Officers' Union v. NLRB, 347 U.S. 17, 
42-43 (1954)). Since the hiring hall agreement at issue in Teamsters 
357 ``specifically provide[d] that there will be no discrimination * * 
* because of the presence or absence of union membership,'' the Court 
determined that the Board was attempting to protect against 
nondiscriminatory encouragement of union membership. Id. at 675. This 
was impermissible because ``[w]here * * * Congress has aimed its 
sanctions only at specific discriminatory practices, the Board cannot 
go farther and establish a broader, more pervasive regulatory scheme.'' 
Id. at 676.
    Properly understood, Teamsters 357 does not preclude the Board from 
issuing the notice posting rule. The union had not committed an unfair 
labor practice in that case because its hiring hall agreement did not 
encourage or discourage union membership by ``discrimination.'' See id. 
at 674-75. By faulting the union for not including in its agreement 
clauses that the Board's Mountain Pacific rule had declared necessary 
to prevent `` `unlawful encouragement of union membership,' '' id. at 
671 (quoting Mountain Pacific Chapter, 119 NLRB at 897), the Board had 
attempted to regulate hiring halls in a manner that was facially 
inconsistent with the discrimination requirement embedded in NLRA 
Section 8(a)(3) and (b)(2). Accordingly, the Chamber makes too much of 
the Court's statement prohibiting the Board from ``establish[ing] a 
broader, more pervasive regulatory scheme'' when ``specific 
discriminatory practices'' have already been outlawed. Id. at 676. By 
that, the Court simply meant to remind the Board that it may not 
administratively amend Section 8(a)(3) and (b)(2) to prohibit 
nondiscriminatory activity that might be viewed as undesirable because 
those statutory sections are clearly aimed only at ``specific 
discriminatory practices.'' Id.\46\
---------------------------------------------------------------------------

    \46\ To the extent that the Board espoused a contrary view of 
Teamsters 357 in a prior rulemaking proceeding, that view is 
abandoned. See Union Dues Regulation, 57 FR 43635, 43637-38 (Sept. 
22, 1992), withdrawn, 61 FR 11167 (Mar. 19, 1996).
---------------------------------------------------------------------------

    This rulemaking does not involve those provisions of the NLRA that 
Teamsters 357 addressed. Accordingly, the Board does not view that case 
as controlling the outcome of this proceeding.
6. Miscellaneous Matters
    The Center on National Labor Policy, Inc., argues that the Board 
``must be mindful of the Supreme Court's admonition in Lechmere[, Inc.] 
v. NLRB, 502 U.S. 527, 534 (1992), that an employer possesses First 
Amendment rights to its property.'' The Board disagrees that the 
property rights discussed in Lechmere emanate from the First Amendment, 
see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21 (1994) 
(``The right of employers to exclude union organizers from their 
private property emanates from state common law * * *.''), and to the 
extent that the Center's reference to the First Amendment asserts a 
conflict between these regulations and employers' right to free speech, 
that argument is rejected for reasons explained above. After quoting 
extensively from Lechmere, the Center next contends that ``if a union 
has no access to company property to communicate with employees, 
neither does the Board without Section 10(c) authority.'' The Board 
rejects this argument because it fails to recognize the important 
substantive difference between the conduct at issue in Lechmere, which 
involved `` `trespassory organizational activity' '' by nonemployees on 
the employer's grounds, id. at 535 (quoting Sears, Roebuck & Co. v. San 
Diego Dist. Council of Carpenters, 436 U.S. 180, 205 (1978)), and the 
regulations here which involve nothing more than the employer's 
responsibility to post an official notice of legal rights.
    The Portland Cement Association (PCA) comments that the Board's 
failure to place the three law review articles that the Board cited to 
the NPRM \47\ in the administrative docket is arbitrary and capricious. 
Although the Board provided the legal citations for these articles, PCA 
believes that it should not have to pay an electronic legal reporting 
service to access the material. The Board has placed these articles in 
the hard copy docket, but has not uploaded these articles to the 
electronic docket at http://www.regulations.gov, because such an action 
could violate copyright laws.\48\
---------------------------------------------------------------------------

    \47\ See NPRM, 75 FR 80411 and fn. 3 above.
    \48\ The Board has also placed the other non-case materials 
cited to in this final rule into the hard copy docket.
---------------------------------------------------------------------------

    Finally, one comment contends that requiring employers to set aside 
wall space for posting the notices violates the Takings Clause of the 
Fifth Amendment to the U.S. Constitution. The comment cites no 
authority for this proposition, which would seem to invalidate the 
notice-posting requirements under all other Federal and state workplace 
statutes. Accordingly, the Board rejects this contention.
    In conclusion, the Board believe that it has fully demonstrated 
that it possesses sufficient statutory authority to enact the final 
rule, and therefore that it is not ``in excess of statutory 
jurisdiction'' or ``short of statutory right'' within the meaning of 
the Administrative Procedure Act, Section 706(2)(C), 5 U.S.C. 
706(2)(C).

C. Factual Support for the Rule

    As stated above, the Board found that the notice posting rule is 
needed because it believes that many employees are unaware of their 
NLRA rights and therefore cannot effectively exercise those rights. The 
Board based this finding on several factors: the comparatively small 
percentage of private sector employees who are represented by unions 
and thus have ready access to information about the

[[Page 54015]]

NLRA; the high percentage of immigrants in the labor force, who are 
likely to be unfamiliar with workplace rights in the United States; 
studies indicating that employees and high school students about to 
enter the work force are generally uninformed about labor law; and the 
absence of a requirement that, except in very limited circumstances, 
employers or anyone else inform employees about their NLRA rights. 75 
FR 80411.
    A large number of comments contend that the Board failed to 
demonstrate the necessity of the notice posting rule. They challenge 
each of the premises (except the last) underlying the Board's belief 
that employees are generally unaware of their NLRA rights.
    Many comments assert that, contrary to the Board's belief, the 
right to join a union is widely known and understood by employees. For 
example:

--I believe the majority of employees know about labor unions and 
how to form a union, and this poster is unnecessary.\49\
---------------------------------------------------------------------------

    \49\ Comment of the Employers Association.
---------------------------------------------------------------------------

--[I]t is hard to imagine that there are many in the US who do not 
know that they can try to join a union.
--The fact of the matter is that if a group of employees are upset 
enough with their current management that they feel they need union 
representation, they already know what they need to do as a 
recourse. And if they do not immediately know how to respond, there 
are plenty of resources for them.\50\
---------------------------------------------------------------------------

    \50\ Comment of Malt-O-Meal Company (Malt-O-Meal).
---------------------------------------------------------------------------

--We, the employees, know the unions exist, * * * If the employees 
want to know about unions, they should research it themselves. It is 
not as though the information is not readily available.

    Some posit that comparatively few private sector employees are 
represented by unions not because employees do not know that they can 
join unions, but because they have consciously rejected union 
representation for any number of reasons (e.g., they do not believe 
that unions can help them; they do not want to pay union dues; they 
deem union representation unnecessary in light of other workplace 
protection statutes). For example:

--Is it not just as probable that people clearly understand unions, 
and they have decided they want no part of them?
--Labor unions charge approximately 1.3% of pre-tax earnings for 
monthly dues. Many workers, especially those who lost their good 
paying jobs during this recession and have found new jobs at $10.00-
$11.00 per hour wages, need the dues money themselves, in order to 
support their families.
--Membership is down because so many of the good things unions 
fought for a long time ago have been legislated, at either the 
Federal or State level, and so the need for unions has declined.\51\
---------------------------------------------------------------------------

    \51\ Comment of Tecton Products.
---------------------------------------------------------------------------

--[M]ost employees are very aware of their rights to unionize and 
many employees choose not to do so because of the rights they 
already have under our federal and state laws.
--In fact, one could say that the NLRA and other employment laws 
have succeeded to the degree that unions are NOT necessary in 
today's work environment.\52\
---------------------------------------------------------------------------

    \52\ Comment of Printing and Imaging Association of MidAmerica 
(Printing and Imaging Ass'n).

    A few comments question the Board's belief that immigrant workers 
are unfamiliar with their workplace rights.\53\ Several comments argue 
that the NLRA has been in effect for nearly 76 years, which is 
sufficient time for employees to learn about its provisions.\54\
---------------------------------------------------------------------------

    \53\ See, e.g., comment of the Printing and Imaging Ass'n.
    \54\ See, e.g., comment of Coalition for a Democratic Workplace.
---------------------------------------------------------------------------

    A number of comments argue that the studies cited in the NPRM are 
from the late 1980s and early 1990s and are therefore out of date \55\ 
(and also, some say, poorly supported).\56\ Moreover, those studies, 
whatever their value when published, predate the wide use of the 
internet. Now there are many online sources of information concerning 
unions and union organizing, including the Board's own Web site. 
According to these comments, it should not be necessary to require 
employers to post notices of NLRA rights because employees who are 
interested in learning about unions can quickly and easily find such 
information online.\57\ One comment, like some others, argues that ``If 
it is so important that employees know their rights under the NLRB it 
should be the government or union whose responsibility it is to inform 
them.'' \58\ Two comments suggest that the Board conduct a mass media 
informational campaign to that end, and one notes that the Board has in 
fact recently increased its public information efforts.\59\ One comment 
urges the Board to conduct a study to ascertain current employees' 
level of NLRA knowledge before imposing a notice posting requirement.
---------------------------------------------------------------------------

    \55\ See, e.g., comments of Printing Industries of America and 
the Portland Cement Association.
    \56\ See, e.g., comments of Cass County Electric Cooperative and 
Pilchak Cohen & Tice, P.C.
    \57\ As one person states, ``The internet has long ago replaced 
lunch room bulletin board postings as the means by which employees 
learn of and exercise their rights.''
    \58\ Such comments appear to misunderstand that by this rule, 
the Board is indeed seeking to inform employees of the provisions of 
the NLRA, using the most accessible venues to reach them, their 
workplaces.
    Other comments question why this rule does not mandate notice 
posting by governmental employers. The NLRA does not cover such 
employers. See Section 2(2), 29 U.S.C. 152(2).
    \59\ Comment of Fisher & Phillips, LLP.
---------------------------------------------------------------------------

    In contrast, as discussed in more detail below, numerous comments 
from individuals, union organizers, attorneys representing unions, and 
worker assistance organizations agree with the Board that most 
employees are unfamiliar with their NLRA rights. Immigrant rights 
organizations state that immigrant workers largely do not know about 
their rights.
    After careful consideration of the comments on both sides of this 
issue, the Board believes that many employees are unaware of their NLRA 
rights and that a notice posting requirement is a reasonable means of 
promoting greater knowledge among employees. To the extent that 
employees' general level of knowledge is uncertain, the Board believes 
that the potential benefit of a notice posting requirement outweighs 
the modest cost to employers. Certainly, the Board has been presented 
with no evidence persuasively demonstrating that knowledge of NLRA 
rights is widespread among employees.
    The comments asserting that the right to join a union is widely 
known cite little, if any, support for that assertion. By contrast, 
many of the comments contending that employees are unfamiliar with 
their NLRA rights base their statements on personal experience or on 
extensive experience representing or otherwise assisting employees. 
Many individual workers, commenting on the rule, indicate their 
personal experiences with the lack of NLRA knowledge and concurrent 
strong support for the rule. For example:

--Even though most of my coworkers and supervisors were highly 
intelligent people, it is my experience that most workers are almost 
totally unaware of their rights under the NLRA.
--Knowing that there is a federal agency out there that will protect 
the rights of working people to organize is essential to the 
exercise of those rights.
--I had no idea that I had the right to join a union, and was often 
told by my employer that I could not do so. * * * I think employers 
should be required to post notices so that all employees may make an 
informed decision about their rights to join a union.\60\
---------------------------------------------------------------------------

    \60\ Comment of Member, Local 150, Operating Engineers.
---------------------------------------------------------------------------

--Workers have rights and they have the right to know them.\61\
---------------------------------------------------------------------------

    \61\ Comment of Organizer, IBEW.
---------------------------------------------------------------------------

--[T]here is a lot of ignorance among young workers and veteran 
workers alike with regard to knowledge of their right to

[[Page 54016]]

organize. This is not a cure for employer intimidation, * * * but it 
is a step in the right direction.
--As an employee at will, I was not aware of my rights to form a 
union or any rights that I may have had under the NLRA.\62\
---------------------------------------------------------------------------

    \62\ Comment of International Staff Representative, 
Steelworkers.
---------------------------------------------------------------------------

--I worked in the construction materials testing industry for about 
eight years. During that time I had no idea I had the right to join 
a union.\63\
---------------------------------------------------------------------------

    \63\ Comment of Member, Local 150, Operating Engineers.
---------------------------------------------------------------------------

--As a working class citizen, I am well aware of just how rare it is 
for my fellow workers to know their rights. For that reason, this is 
a rule that is extremely overdue. * * *.

    A sampling of comments from labor attorneys, workers' 
organizations, and labor organizations is consistent with these 
employees' comments:

--It is my experience that upwards of 95% of employees have no idea 
what their rights are with respect to labor unions.\64\
---------------------------------------------------------------------------

    \64\ Comment of Organizer, Local 150, Operating Engineers.
---------------------------------------------------------------------------

--In fact, I have had many employees over the years tell me that 
their employers have told them that they do not allow unions at 
their workplace.\65\
---------------------------------------------------------------------------

    \65\ Comment of Strokoff and Cowden.
---------------------------------------------------------------------------

--Workers today do not know what their rights are under the NLRA. As 
a Union organizer with more than 20 years of experience, without 
exception, every worker I encounter thinks that it is perfectly 
legal for their employer to fire them simply for saying the word 
union, or even to speak with other employees at work about general 
working conditions. The protections afforded workers to engage in 
protected concerted activity around workplace issues is unknown to 
the majority of workers today.\66\
---------------------------------------------------------------------------

    \66\ Comment of Organizer, Teamsters, Local 117.
---------------------------------------------------------------------------

--It is the experience of [Service Employees International Union 
(SEIU) Local 615] that many employees are woefully unaware of their 
rights under the NLRA and that that lack of knowledge makes 
employees vulnerable when they desire to address their wages and 
working conditions with the employers.\67\
---------------------------------------------------------------------------

    \67\ Comment of SEIU Local 615.
---------------------------------------------------------------------------

--I have participated in hundreds of organizing campaigns involving 
thousands of employees. In my experience, most people had no idea 
what their rights were to organize or join unions.\68\
---------------------------------------------------------------------------

    \68\ Comment of Financial Secretary, Local 150, Operating 
Engineers.

    Some unions also assert that even unionized employees often do not 
have a clear understanding of the NLRA. One union staff representative 
writes that ``there seems to be a disconnect, most of our membership 
does not know a thing about NLRA.'' \69\ Another union steward comments 
similarly:
---------------------------------------------------------------------------

    \69\ Comment of Staff Representative, Steelworkers.

    I saw how union members were often unaware of their rights 
unless the union specifically did outreach and member education, or 
unless the employee ran into a problem and came to a steward for 
assistance. * * *
    Notice to employees, however, could provide a starting point for 
those employees to try to assert rights that they currently have on 
paper but often do not have in practice.

    Several immigrant workers' organizations comment on the difficulty 
that this population has in understanding their rights and accessing 
the proper help when needed.\70\ These organizations note that laws in 
the immigrants' home countries may be quite different from those of the 
United States, and the high barrier that lack of fluency in English 
creates in making these persons aware of their rights under the 
NLRA.\71\ These organizations also contend that because guestworkers in 
particular can work only for the employer that requested their visa, 
they are extremely vulnerable to labor violations, and that these 
employers routinely misrepresent the existence of NLRA rights.\72\ The 
National Day Laborers Organizing Network claims that ``most workers are 
not aware of their right to organize.''
---------------------------------------------------------------------------

    \70\ See e.g., comments of National Immigration Law Center and 
Latino Justice.
    \71\ See, e.g., comment of Friends of Farmworkers, Inc.
    \72\ Comment of Alliance of Guestworkers for Dignity.
---------------------------------------------------------------------------

    One immigrant construction worker, commenting favorably on the 
proposed rule, explains that she learned English after coming to the 
United States from Poland: ``While working as a testing technician, I 
had no idea I had the right to join a union.'' She writes:

    I think a government written notice posted in the workplace 
would be a critical source of information for employees who want to 
join a union. Especially in this industry where many people like 
myself are foreign born, there is a language barrier that adds to 
the difficulty in understanding our legal rights. I take government 
posted notices seriously and believe other people do as well.\73\
---------------------------------------------------------------------------

    \73\ Comment of Instructor, Apprenticeship and Skill Improvement 
Program, Local 150, Operating Engineers.

    Significantly, the Board received numerous comments opposing the 
rule precisely because the commenters believe that the notice will 
increase the level of knowledge about the NLRA on the part of 
employees. Specifically, they predict that the rule will lead to 
increased unionization and create alleged adverse effects on employers 
and the economy generally. For example, Baker and Daniels LLP comments 
that as more employees become aware of their NLRA rights, they will 
file more unfair labor practice charges and elect unions to serve as 
their collective-bargaining representatives. But fear that employees 
may exercise their statutory rights is not a valid reason for not 
informing them of their rights.
    Moreover, the NLRA protects the right to join a union and to 
refrain from doing so and the notice so states. In addition, the NLRA 
confers and protects other rights besides the right to join or refrain 
from joining unions. Section 7 provides that employees have the right 
``to engage in other concerted activities for the purpose of collective 
bargaining or other mutual aid or protection[.]'' Such protected 
concerted activities include concertedly complaining or petitioning to 
management concerning their terms and conditions of employment; \74\ 
concertedly petitioning government concerning matters of mutual 
interest in the workplace; \75\ and concertedly refusing to work under 
poor working conditions.\76\ Few if any of the comments contending that 
employees know about their NLRA rights assert that employees are aware 
of the right to engage in such protected concerted activities in the 
nonunion setting. By contrast, as shown above, many comments favoring 
the rule report that nonunion employees are especially unlikely to be 
aware of their NLRA rights.
---------------------------------------------------------------------------

    \74\ North Carolina License Plate Agency #18, 346 NLRB 293 
(2006), enf'd. 243 F. Appx. 771 (4th Cir. 2007) (unpublished).
    \75\ Eastex, Inc. v. NLRB, above, 437 U.S. at 565-567.
    \76\ NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962).
---------------------------------------------------------------------------

    Although some comments contend that the articles cited by the Board 
in support of its belief that employees are largely unaware of the NLRA 
rights are old and inadequately supported,\77\ they cite no more recent 
or better supported studies to the contrary. In addition, the 
percentage of the private sector workforce represented by unions has 
declined from about 12 percent in 1989, about the time the articles 
cited in the NPRM were published, to 8 percent presently; \78\ thus, to 
the extent that lack of contact with unions contributed to lack of 
knowledge of NLRA rights 20 years ago, it probably is even more of a 
factor today.\79\
---------------------------------------------------------------------------

    \77\ See comment of Cass County Electric Cooperative. For 
example, Professor Morris, author of two of the articles cited by 
the Board (as ``see also'') listed no authority to support his 
assertion that employees lack knowledge about the NLRA. See Charles 
J. Morris, ``Renaissance at the NLRB,'' above at fn. 3; Morris, 
``NLRB Protection in the Nonunion Workplace,'' above at fn. 3.
    \78\ See DeChiara, ``The Right to Know,'' above at fn. 1; 75 FR 
80411 fn. 4.
    \79\ The Printing and Imaging Association discussed these 
declining rates of unionization, and cited Professor Kate 
Bronfenbrenner's doctoral dissertation, ``Seeds of Resurgence: 
Successful Union Strategies for Winning Certification Elections and 
First Contracts in the 1980s and Beyond,'' (available at http://
digitalcommons.ilr.cornell.edu/cgi/
viewcontent.cgi?article=1002&context=reports&sei-
redir=1#search=``Kate+Bronfenbrenner,+Uneasy+terrain:+The+impact+of+c
apital+mobility+on+workers,+wages,+and+union'') to argue that the 
higher win rates for unions in elections involving both immigrant 
and older workers argued against the need for the proposed rule.
    The Board is not addressing the many debated causes of the 
declining rates of private sector unionization in the United States. 
This rule simply accepts those rates as given, and seeks to increase 
the knowledge of NLRA provisions among those without readily 
available sources of reliable information on these provisions.

---------------------------------------------------------------------------

[[Page 54017]]

    In support of their contention that NLRA rights are widely known 
among employees, several comments observe that the Board's processes 
for holding representation elections and investigating and remedying 
unfair labor practices are invoked tens of thousands of time a 
year.\80\ That is true. However, the civilian work force includes some 
108 million workers potentially subject to the NLRA.\81\ Thus, the 
number of employees who invoke the Board's processes make up only a 
small percentage of the covered workforce. Accordingly, the Board does 
not consider the number of times the Board's processes are invoked to 
be persuasive evidence that workers generally are aware of their NLRA 
rights.
---------------------------------------------------------------------------

    \80\ See, e.g., comment of Desert Terrace Healthcare Center.
    \81\ See Bureau of Labor Statistics, Economic News Release, 
Table B-1, ``Employees on nonfarm payrolls by industry sector and 
selected industry detail,'' May 3, 2011 (seasonally adjusted data 
for March 2011) http://data.bls.gov/timeseriesLNS11300000?years_option=specific_years&include_graphs=true&to_year=2010&from_year=1948 (last visited June 6, 2011).
---------------------------------------------------------------------------

    Finally, remarks in multiple opposing comments strongly suggest 
that the commenters themselves do not understand the basic provisions 
of the NLRA:

--If my employees want to join a union they need to look for a job 
in a union company.\82\
---------------------------------------------------------------------------

    \82\ Comment of P & L Fire Protection, Inc.
---------------------------------------------------------------------------

--[a]nytime one of our independent tradesmen would like to join the 
union they are free to apply and be hired by a union contractor.
--If a person so desires to be employed by a union company, they 
should take their ass to a union company and apply for a union job.
--Belonging to a union is a privilege and a preference--not a 
right.\83\
---------------------------------------------------------------------------

    \83\ Comment of OKC Tea Party.
---------------------------------------------------------------------------

--If they don't like the way I treat them, then go get another job. 
That is what capitalism is about.\84\
---------------------------------------------------------------------------

    \84\ Comment of Montana Records Management, LLP.
---------------------------------------------------------------------------

--We are not anti-union; but feel as Americans, we must protect our 
right not to be signatory to a third party in our business.\85\
---------------------------------------------------------------------------

    \85\ Comment of Humphrey & Associates, Inc.
---------------------------------------------------------------------------

--If one desires to be a part of a union, he or she is free to apply 
to those companies that operate with that form of relationship.\86\
---------------------------------------------------------------------------

    \86\ Comment of Medina Excavating, Inc.
---------------------------------------------------------------------------

--I also believe employees already have such notice by understanding 
they retain the right to change employers whenever they so 
choose.\87\
---------------------------------------------------------------------------

    \87\ Comment of Olsen Tool & Plastics, Co.

These comments reinforce the Board's belief that, in addition to 
informing employees of their NLRA rights so that they may better 
exercise those rights, posting the notice may have the beneficial side 
effect of informing employers concerning the NLRA's requirements.\88\
---------------------------------------------------------------------------

    \88\ And as one union official writes:
    Having been active in labor relations for 30 years I can assure 
you that both employees and employers are confused about their 
respective rights under the NLRA. Even union officers often do not 
understand their rights. Members and non-members rarely understand 
their rights. Often labor management disputes arise because one or 
both sides are mis-informed about their rights. Often the employer 
takes an action it truly believes is within its rights when it is 
not.
    Comment of Civil Service Employees Association.
---------------------------------------------------------------------------

    As to the contention that information concerning unions is widely 
available on the internet, including on the Board's Web site, the Board 
responds that not all employees have ready access to the internet. 
Moreover, it is reasonable to assume that an employee who has no idea 
that he or she has a right to join a union, attempt to organize his 
employer's workforce, or engage in other protected concerted 
activities, would be less likely to seek such information than one who 
is aware of such rights and wants to learn more about them.\89\ The 
Board is pleased that it has received a large number of inquiries at 
its Web site seeking information concerning NLRA rights, but it is 
under no illusion that that information will reach more than a small 
fraction of the workforce in the foreseeable future.
---------------------------------------------------------------------------

    \89\ Thus, the many comments that assert that employees can just 
use Internet search engines to find out about unions (see, e.g., 
comments of Winseda Corp. Homestead Village, Inc.), misapprehend the 
breadth of the rights of which the Board seeks to apprise all 
employees. As stated above, Section 7 is not merely about the right 
to join or refrain from joining a labor organization, but more 
broadly protects the right of employees to engage in ``concerted 
activities'' for the purpose of ``mutual aid or protection.'' It is 
this right that is the most misunderstood and simply not subject to 
an easy Internet search by employees who may have no idea of what 
terms to use, or even that such a right might be protected at all.
---------------------------------------------------------------------------

    Several comments assert that, in any event, requiring the posting 
of notices will not be effective in informing employees of their 
rights, because employees will simply ignore the notices, as the 
comments contend they ignore other workplace postings. ``Posters are an 
ineffective means of educating workers and are rarely read by 
employees.'' \90\ Other comments argue that adding one more notice to 
the many that are already mandated under other statutes will simply 
create more ``visual clutter'' that contributes to employees' 
disinclination to pay attention to posted notices. As one employer 
stated, ``My bulletin boards are filled with required notifications 
that nobody reads. In the past 15 years, not one of our 200 employees 
has ever asked about any of these required postings. I have never seen 
anyone ever read one of them.'' \91\ Another wrote, ``Employers are 
already required to post so many notices that these notices have lost 
any semblance of effectiveness as a governmental communication 
channel.''
---------------------------------------------------------------------------

    \90\ Comment of Riverbend Community Mental Health.
    \91\ Comment of Farmers Cooperative Compress.
---------------------------------------------------------------------------

    To these comments, the Board responds that the experiences of the 
commenters is apparently not universal; other comments cited above 
contend that employees are more knowledgeable about their rights under 
statutes requiring the posting of notices summarizing those rights than 
about their NLRA rights. Moreover, not every employee has to read 
workplace notices for those notices to be effective. If only one 
employee of a particular employer reads the Board's notice and conveys 
what he or she has read to the other employees, that may be enough to 
pique their interest in learning more about their NLRA rights. In 
addition, the Board is mandating electronic notice to employees on an 
internet or intranet site, when the employer customarily communicates 
with its employees about personnel rules or policies in that way, in 
order to reach those who read paper notices and those who read 
electronic postings. As for the comment that argues that the Board can 
use public service announcements or advertising to reach employees, the 
Board believes that it makes much more sense to seek to reach directly 
the persons to whom the Act applies, in the location where they are 
most likely to hear about their other employment rights, the 
workplace.\92\
---------------------------------------------------------------------------

    \92\ Printing Industries of America uses election data to argue 
that the Labor Department's notice posting rule for Federal 
contractors has not been effective because the rate of elections has 
not increased. It is unclear whether any meaningful conclusion can 
be drawn from election data for only a few months, especially since 
the number of contractors covered by the Labor Department's rule is 
only a small fraction of the number of employers subject to the 
NLRA. In any event, the Board does not believe that that is the 
proper criterion by which to measure the rule's effectiveness. The 
purpose of requiring the posting of such notices is to inform 
employees of their rights so that they may exercise them more 
effectively, not to obtain any particular result such as the filing 
of more election petitions.
    The same comment also cites a couple of textbooks which it 
asserts are popularly used in high schools today to argue that labor 
history is being taught to today's students. The Board is unable to 
assess the truth of that assertion, but regardless, it is unclear 
whether students necessarily connect this history to their future 
rights as employees.

---------------------------------------------------------------------------

[[Page 54018]]

    Some comments argue that the Board's notice posting rule does not 
go far enough to effectuate the NLRA. One labor attorney argues that 
the Board should require annual trainings for supervisors and captive 
audience meetings where employees are read their rights by supervisors 
and Board agents and the employees would have to acknowledge receiving 
those notices.\93\ The same comment suggests banning captive audience 
meetings by employers. The comment concludes that the NPRM ``doesn't go 
anywhere near far enough. It is, however, an important and worthwhile 
advancement.'' \94\ Another comment also suggests that annual, 
mandatory training classes for employees would be desirable.\95\ The 
Board believes that this Rule strikes the proper balance in 
communicating necessary information about the NLRA to employees.
---------------------------------------------------------------------------

    \93\ Comment of Weinberg, Roger & Rosenfeld.
    \94\ Id.
    \95\ Comment of Staff Representative, Steelworkers.
---------------------------------------------------------------------------

    For all the foregoing reasons, the Board is persuaded that many 
private sector employees are unaware of their NLRA rights.\96\
---------------------------------------------------------------------------

    \96\ Accordingly, the Board finds it unnecessary to conduct a 
study to determine the extent of employees' knowledge of NLRA 
rights. The Board further observes that even if only 10 percent of 
workers were unaware of those rights, that would still mean that 
more than 10 million workers lacked knowledge of one of their most 
basic workplace rights. The Board believes that there is no question 
that at least a similar percentage of employees are unaware of the 
rights explained in the notice. In the Board's view, that justifies 
issuing the rule.
---------------------------------------------------------------------------

III. Summary of Final Rule and Discussion of Related Comments

    The Board's rule, which requires employers subject to the NLRA to 
post notices of employee rights under the NLRA, will be set forth in 
Chapter 1, Part 104 of Volume 29 of the Code of Federal Regulations 
(CFR). Subpart A of the rule sets out definitions; prescribes the size, 
form, and content of the employee notice; and lists the categories of 
employers that are not covered by the rule. Subpart B sets out 
standards and procedures related to allegations of noncompliance and 
enforcement of the rule. The discussion below is organized in the same 
manner and explains the Board's reasoning in adopting the standards and 
procedures contained in the regulatory text, including the Board's 
responses to the comments received.

Subpart A--Definitions, Requirements for Employee Notice, and 
Exceptions From Coverage Definitions

A. The Definitions

    For the most part, the definitions proposed in the rule are taken 
from those appearing in Section 2 of the NLRA, 29 U.S.C. 152. No 
comments were received concerning those definitions, and they are 
unchanged in the final rule. A number of comments were received 
concerning the definition of other terms appearing in the rule. Those 
comments are addressed below.

B. Requirements for Employee Notice

1. Content Requirements
    The notice contains a summary of employee rights established under 
the NLRA. As explained above, the Board believes that requiring notice 
of employee rights is necessary to carry out the provisions of the 
NLRA. Accordingly, Sec.  104.202 of the proposed rule requires 
employers subject to the NLRA to post and maintain the notice in 
conspicuous places, including all places where notices to employees are 
customarily posted, and to take reasonable steps to ensure that the 
notices are not altered, defaced, or covered by any other material, or 
otherwise rendered unreadable.
    As stated in the NPRM, the Board considered the substantive content 
and level of detail the notice should contain regarding NLRA rights. In 
arriving at the content of the notice of employee rights, the Board 
proposed to adopt the language of the Department of Labor's final rule 
requiring Federal contractors to post notices of employees' NLRA 
rights. 29 CFR part 471. In the NPRM, the Board explained that it 
tentatively agreed with the Department of Labor that neither quoting 
the statement of employee rights contained in Section 7 of the NLRA nor 
briefly summarizing those rights in the notice would be likely to 
effectively inform employees of their rights. Rather, the language of 
the notice should include a more detailed description of employee 
rights derived from Board and court decisions implementing those 
rights. The Board also stated that it saw merit in the Department of 
Labor's judgment that including in the notice examples, again derived 
from Board and court decisions, of conduct that violates the NLRA will 
assist employees in understanding their rights. 75 FR 80412.
    Prior to issuing the NPRM, the Board carefully reviewed the content 
of the notice required under the Department of Labor's final rule, 
which was modified in response to comments from numerous sources, and 
tentatively concluded that that notice explains employee rights 
accurately and effectively without going into excessive or confusing 
detail. The Board therefore found it unnecessary, for purposes of the 
proposed rulemaking, to modify the language of the notice in the 
Department of Labor's final rule. Moreover, the Board reasoned that 
because the notice of employee rights would be the same under the 
Board's proposed rule as under the Department of Labor's rule, Federal 
contractors that have posted the Department of Labor's required notice 
would have complied with the Board's rule and, so long as that notice 
is posted, would not have to post a second notice. Id.
    The proposed notice contained examples of general circumstances 
that constitute violations of employee rights under the NLRA. Thus, the 
Board proposed a notice that provided employees with more than a 
rudimentary overview of their rights under the NLRA, in a user-friendly 
format, while simultaneously not overwhelming employees with 
information that is unnecessary and distracting in the limited format 
of a notice. As explained below, the Board also tentatively agreed with 
the Department of Labor that it is unnecessary for the notice to 
include specifically the right of employees who are not union members 
and who are covered by a contractual union-security clause to refuse to 
pay union dues and fees for any purpose other than collective 
bargaining, contract administration, or grievance adjustment. See 
Communications Workers v. Beck, 487 U.S. 735 (1988). Id. at 80412-
80413.
    The Board specifically invited comment on the statement of employee 
rights proposed for inclusion in the required notice to employees. In 
particular, the Board requested comment on whether the notice contains 
sufficient information of employee rights under the NLRA; whether it 
effectively conveys that information to employees; and whether it 
achieves the desired balance between providing an overview of employee 
rights under the Act and limiting unnecessary and distracting 
information. Id. at 80413.

[[Page 54019]]

    The proposed Appendix to Subpart A included Board contact 
information and basic enforcement procedures to enable employees to 
learn more about their NLRA rights and how to enforce them. Thus, the 
required notice confirmed that unlawful conduct will not be permitted, 
provided information about the Board and about filing a charge with the 
Board, and stated that the Board will prosecute violators of the NLRA. 
The notice also indicated that there is a 6-month statute of 
limitations for filing charges with the Board alleging violations and 
provided Board contact information. The Board invited suggested 
additions or deletions to these provisions that would improve the 
content of the notice of employee rights. Id.
    The content of the proposed notice received more comments than any 
other single topic in the proposed rule. But of the thousands of 
comments that address the content of the notice, the majority are 
either very general, or identical or nearly identical form letters or 
``postcard'' comments sent in response to comment initiatives by 
various interest groups, including those representing employers, 
unions, and employee rights organizations. Many comments from both 
individuals and organizations offer general support for the content of 
the proposed notice, stating that employee awareness of basic legal 
rights will promote a fair and just workplace, improve employee morale, 
and foster workforce stability, among other benefits.\97\ More 
specifically, one comment asserts that the proposed notice ``contains 
an accurate, understandable and balanced presentation of rights.'' \98\ 
The United Transportation Union contends that the ``notice presents an 
understandable, concise and extremely informative recitation of 
workers' rights, without getting bogged down in extraneous language, 
incomprehensible legalese or innumerable caveats and exceptions.''
---------------------------------------------------------------------------

    \97\ See comments of the National Immigration Law Center, 
Service Employees International Union, and Weinberg, Roger & 
Rosenfeld.
    \98\ Comment of David Fusco, a labor and employment attorney.
---------------------------------------------------------------------------

    Other comments were less supportive of the content of the proposed 
notice and the notice-posting requirement in general. A significant 
number of comments, including those from many individuals, employers, 
and employer industry and interest groups, argue that the content of 
the notice is not balanced, and appears to promote unionization instead 
of employee freedom of association. In particular, many comments state 
that Section 7 of the NLRA includes the right to refrain from union 
activity, but claim that this right is given little attention in 
comparison to other rights in the proposed notice. Several comments 
also argue that the proposed notice excludes rights associated with an 
anti-union position, including the right to seek decertification of a 
bargaining representative, the right to abstain from union membership 
in ``right-to-work'' states, and rights associated with the Supreme 
Court's decision in Communications Workers v. Beck.\99\ Comments also 
suggest that the notice should include a warning to employees that 
unionizing will result in a loss of the right to negotiate directly 
with their employer.\100\ Many of these comments argue that a neutral 
government position on unionization would be more inclusive of anti-
union rights.\101\
---------------------------------------------------------------------------

    \99\ See comments of Pilchak, Cohen & Tice, American Trucking 
Association, and Electrical and Mechanical Systems Inc.
    \100\ See, e.g. comment of the Heritage Foundation.
    \101\ See, e.g., comment of the National Right to Work 
Committee.
---------------------------------------------------------------------------

    A number of comments address the issue of complexity, and argue 
that the Board's attempt to summarize the law is flawed because the 
Board's decisional law is too complex to condense into a single 
workplace notice.\102\ Some of the comments addressing this issue note 
that NLRA law has been developed over 75 years, and involves 
interpretations by both the NLRB and the Federal courts, sometimes with 
conflicting results. The Chamber of Commerce cites the ``NLRB's Basic 
Guide to the National Labor Relations Act: General Principles of Law 
Under the Statute and Procedures of the National Labor Relations 
Board'' (Basic Guide to the NLRA) (1997), available at http://www.nlrb.gov/publications/brochures, to make their point about legal 
complexity. In the Foreword to the Basic Guide to the NLRA, the Board's 
General Counsel states that ``[a]ny effort to state basic principles of 
law in a simple way is a challenging and unenviable task. This is 
especially true about labor law, a relatively complex field of law.'' 
The thrust of these comments about legal complexity was that the NLRA 
is complex, dynamic, and nuanced, and any attempt to summarize it in a 
workplace notice will result in an oversimplification of the law and 
lead to confusion, misunderstanding, inconsistencies, and some say, 
heightened labor-management antagonism. Moreover, some comments express 
concern that Board member turnover could result in changes to the law, 
which may require frequent updates to the notice.\103\
---------------------------------------------------------------------------

    \102\ See, e.g., comment of COLLE, Retail Industry Leaders 
Association.
    \103\ See comment of Capital Associated Industries, Inc. and 
National Association of Manufacturers.
---------------------------------------------------------------------------

    Many comments suggest that the required notice should include only 
the specific rights contained in Section 7 of the NLRA or, at most, the 
rights and obligations stated in employee advisories on the NLRB's Web 
site. The comments favoring a more general notice suggest that the 
detailed list of rights far exceeds the ``short and plain'' description 
of rights that the Board has found sufficient to ``clearly and 
effectively inform employees of their rights under the Act'' in unfair 
labor practice cases.\104\ See Ishikawa Gasket America, Inc., 337 NLRB 
175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). A comment from Fisher & 
Phillips LLP argues that, under the Board's current remedial practices, 
only an employer that egregiously violates the Act on numerous 
occasions is required to post such an inclusive list of rights.
---------------------------------------------------------------------------

    \104\ See e.g. comments of COLLE and Coalition for a Democratic 
Workplace.
---------------------------------------------------------------------------

    Finally, a number of comments suggest that the notice should 
include a list of employer rights, namely the right to distribute anti-
union literature and the right to discuss the company's position 
regarding unions.
    In addition to the general comments about the proposed notice, many 
comments offer suggestions for specific revisions to individual 
provisions within the five sections of the proposed notice: the 
introduction, the statement of affirmative rights, the examples of 
unlawful conduct, the collective-bargaining provision, and the coverage 
information. The following discussion presents the comments related to 
individual provisions of the notice, followed by the Board's decisions 
regarding the content of the final notice made in response to those 
comments.

a. Comments Regarding the Introduction

    The introduction to the notice of rights in the proposed rule 
stated:

    The National Labor Relations Act (NLRA) guarantees the right of 
employees to organize and bargain collectively with their employers, 
and to engage in other protected concerted activity. Employees 
covered by the NLRB are protected from certain types of employer and 
union misconduct. This Notice gives you general information about 
your rights, and about the obligations of employers under the NLRA. 
Contact the National Labor Relations Board (NLRB), the Federal 
agency that investigates and resolves complaints under the NLRA, 
using the contact information supplied below, if you have any 
questions about specific rights that may apply in your particular 
workplace.


[[Page 54020]]


75 FR 80418-80419 (footnote omitted).

    The Board received a few suggestions for changes to the 
introduction of the notice. The first comment suggests including 
language stating that employees are required to contact their 
``executive manager'' or ``administrative team'' before contacting the 
NLRB and suggests that the NLRB refuse to process employees' complaints 
until the employees first raise the issue with his or her ``management 
team.'' The second comment, from COLLE, urges the Board to add language 
in the introduction alerting employees that they also have the right to 
refrain from engaging in union activity. The comment suggests that by 
not including the right to refrain from union activity in the 
introduction, the Board is showing a bias toward union organizing. The 
comment argues that a more neutral notice would include both the right 
to engage and not engage in union activity at the beginning of the 
document, rather than wait to first mention the right to refrain in the 
affirmative rights section.
    The Board does not agree with the proposal that employees be 
required to contact management officials as a prerequisite to 
contacting the Board. Such a procedural requirement is not contemplated 
in the NLRA and could discourage employees from exercising or 
vindicating their rights.
    The Board agrees, however, that the introduction should include 
both the rights to engage in union and other concerted activity and the 
right to refrain from doing so. The Board believes that adding the 
right to refrain to the introduction will aid in the Board's approach 
to present a balanced and neutral statement of rights. Accordingly, the 
first sentence in the introduction to the notice in the final rule will 
state:

    The National Labor Relations Act (NLRA) guarantees the right of 
employees to organize and bargain collectively with their employers, 
and to engage in other protected concerted activity or to refrain 
from engaging in any of the above activity.

b. Comments Regarding Affirmative Statement of Rights
    The proposed notice contains the following statement of affirmative 
rights: Under the NLRA, you have the right to:

    Organize a union to negotiate with your employer concerning your 
wages, hours, and other terms and conditions of employment.
    Form, join or assist a union.
    Bargain collectively through representatives of employees' own 
choosing for a contract with your employer setting your wages, 
benefits, hours, and other working conditions.
    Discuss your terms and conditions of employment or union 
organizing with your co-workers or a union.
    Take action with one or more co-workers to improve your working 
conditions by, among other means, raising work-related complaints 
directly with your employer or with a government agency, and seeking 
help from a union.
    Strike and picket, depending on the purpose or means of the 
strike or the picketing.
    Choose not to do any of these activities, including joining or 
remaining a member of a union.

75 FR 80419.

    The majority of comments addressing the affirmative rights section 
were general and did not specifically address the language of the 
individual provisions. Generally, labor organizations and employee 
advocate groups favor the Board's language. A comment from the United 
Food and Commercial Workers International Union asserts that the 
approach ``achieves an appropriate balance between providing 
sufficiently clear information about employee's basic statutory rights 
and limiting unnecessary and confusing information about peripheral 
rights.'' On the other hand, comments from employer groups do not favor 
the Board's language. More specifically, employer groups argue that the 
notice is biased toward union organizing. Generally, the comments argue 
that the right to refrain from engaging in union activity should have a 
more prominent place on the notice, rather than being the last of the 
rights listed on the poster. Many of these comments contend that the 
notice should include the right not to engage in specific union-related 
activities.
    Other comments about the notice's statement of affirmative rights 
are directed at individual provisions of the notice. A discussion of 
those comments is set out in more detail below.
i. The Right To Organize and the Right To Form, Join and Assist a Union
    A few comments generally state that the notice should include the 
consequences of exercising the right to organize, join or form a 
union.\105\ For example, several comments argue that employees should 
be informed that if they join a union they give up the right to deal 
directly with their employers. Another comment argues that employees 
should be informed of the cost of organizing a union, including the 
cost of dues and the potential for the company to shut down because of 
increased labor costs associated with a unionized workforce. Other 
comments suggest including language informing employees that they can 
be fired for not paying their union dues.
---------------------------------------------------------------------------

    \105\ See, e.g., comment of Pilchak Cohen & Tice.
---------------------------------------------------------------------------

    The Board rejects those suggestions. The notice is intended to 
inform employees of the rights that they have under the NLRA and does 
not include the benefits or consequences of exercising any of the 
enumerated rights. Adding the consequences of one right would require 
revising the entire notice to include potential consequences--both 
positive and negative--of all the protected rights. For example, the 
notice would need to include the consequences of refraining from 
joining a union, such as not being permitted to vote on contract 
ratifications or attend union membership meetings. The necessary 
additions to the notice would create a notice that is not a concise 
list of rights, but more likely a pamphlet-sized list of rights and 
explanations. In addition, the consequences of unionization are unique 
to each unionized workplace, so it would be impossible to include a 
list of general consequences that could apply uniformly to all 
unionized workplaces. If employees have questions about the 
implications of any of their rights, they can contact an NLRB regional 
office.
    Assisted Living Federation of America (ALFA) suggests that the 
affirmative rights section should be revised to reflect the anti-union 
position. For example, rather than the current provision that states 
that employees have a right to ``[o]rganize a union to negotiate with 
your employer concerning your wages, hours, and other terms and 
conditions of employment,'' the comment suggests the following 
provision: ``you have the right to organize with other employees in 
opposition to a particular union or unions.'' And ``you have the right 
to: refuse to form, join, or assist a union, including the right to 
refuse to sign a union card, attend a union meeting or supply a union 
with information concerning you, your co-worker or your job,'' rather 
than ``[you have the right to] [f]orm, join or assist a union.'' The 
Board disagrees. The Board's proposed notice language reflects the 
language of the NLRA itself, which specifically grants affirmative 
rights, including nearly all of those listed in the notice. Also, the 
notice, like the NLRA, states that employees have the right to refrain 
from engaging in all of the listed activities. The Board therefore sees 
no need to recast the notice to further emphasize the right to oppose 
unions.
ii. The Right To Bargain Collectively
    Two comments suggest that the collective-bargaining provision is

[[Page 54021]]

misleading and vague. The first comment, from COLLE, argues that the 
provision is misleading because it fails to acknowledge that an 
employer does not have an obligation under the NLRA to consent to the 
establishment of a collective-bargaining agreement, but instead only 
has the statutory duty to ``meet at reasonable times and confer in good 
faith with respect to wages, hours, and other terms and conditions of 
employment.'' 29 U.S.C. 158(d). The comment also argues that the 
failure to reach an agreement is not per se unlawful, and the finding 
of an unfair labor practice depends on whether the parties engaged in 
good-faith bargaining. This comment suggests that the notice should 
instead note that the NLRA requires parties to bargain in good faith 
but does not compel agreement or the making of concessions, and that, 
in some instances, a bargaining impasse will result, permitting the 
parties to exercise their economic weapons, such as strikes or 
lockouts. The second comment, made generally by more than a few 
organizations and individuals, suggests that the notice add a statement 
indicating that employers and unions have an obligation to bargain in 
good faith.
    The Board finds it unnecessary to add the suggested amplifications. 
For one thing, the notice does state that employers and unions have a 
duty to bargain in good faith, ``in a genuine effort to reach a 
written, binding agreement setting your terms and conditions of 
employment.'' In the Board's view, the statement that the parties must 
make a ``genuine effort'' to reach agreement necessarily implies that 
they are not, in the end, required to reach one. The Board deems the 
notice language to be adequate on this point. Finally, for the reasons 
already discussed, the Board rejects the contention that the notice 
should discuss the implications or consequences of unsuccessful 
bargaining.
iii. The Right To Discuss With Co-Workers or Union
    A comment from the National Immigration Law Center suggests that 
the use of the phrase ``terms and conditions of employment'' is unclear 
especially to employees who are unaware of their rights under the NLRA. 
The comment recommends that, in order to clarify, the Board add the 
phrase ``including wages and benefits.'' The suggested language would 
read, ``you have the right to: discuss your terms and conditions of 
employment, including wages and benefits, or union organizing with your 
co-workers or a union.''
    The Board agrees that adding the suggested language would clarify 
the provision. The list of affirmative rights uses the terms ``wages, 
hours, and other terms and conditions of employment'' to describe what 
unions may negotiate. The notice then uses the terms ``wages, benefits, 
hours, and other working conditions'' to describe the right to bargain 
collectively for a contract. Those statements make it clear that 
``terms and conditions of employment'' includes wages and benefits. But 
then immediately following those two statements, the notice states that 
employees may discuss ``terms and conditions of employment,'' but does 
not include any clarifying language. In order, to create a more uniform 
notice and clarify the extent to which employees may discuss their 
terms and conditions of employment the final notice will read, ``Under 
the NLRA, you have a right to: Discuss your wages and benefits and 
other terms and conditions of employment or union organizing with your 
co-workers or a union.''
iv. The Right To Strike and Picket
    The notice's reference to the right to strike and picket received a 
few comments from law firms and other organizations representing 
employers' interests. The comments suggest that the provision is flawed 
because of the absence of further limitations, exceptions, and 
distinctions.\106\ Generally, the comments argue that not all strikes 
and pickets are protected. COLLE argues that the notice should inform 
employees of the limitations of strikes encompassed by ``depending on 
the purpose or means of the strike or pickets''--for example, whether 
the strike is for recognition or bargaining, whether the strike has a 
secondary purpose, whether picketing involves a reserved gate, whether 
the strike is a sit-down or minority strike, whether the conduct is a 
slowdown and not a full withholding of work, whether the strike is 
partial or intermittent, whether the strike involves violence, and 
whether the strike is an unfair labor practice strike or an economic 
strike. ALFA argues that employees should be informed that if the 
employer is a healthcare institution, ``employees do not have the right 
to participate in a union-initiated strike or picket unless the union 
has provided the employer and federal and state mediation agencies with 
the required 10 days notice.''
---------------------------------------------------------------------------

    \106\ See comments of ALFA, Carrollton Health and Rehabilitation 
Center, and COLLE.
---------------------------------------------------------------------------

    The Board disagrees. By necessity, an 11x17-inch notice cannot 
contain an exhaustive list of limitations on and exceptions to the 
rights to strike and picket, as suggested by employers. However, 
because exercising the right to strike can significantly affect the 
livelihood of employees, the Board considers it important to alert 
employees that there are some limitations to exercising this right. The 
Board is satisfied that the general caveat, ``depending on the purpose 
or means of the strike or the picketing,'' together with the 
instruction to contact the NLRB with specific questions about the 
application of rights in certain situations, provides sufficient 
guidance to employees about the exercise of their rights while still 
staying within the constraints set by a necessarily brief employee 
notice.
v. The Right To Refrain From Union or Other Protected Concerted 
Activity
    All the comments that discuss the right to refrain from engaging in 
union activity criticize what they contend to be its lack of 
prominence. ALFA accuses the Board of ``burying'' the provision by 
placing it last, below the other rights to engage in union and other 
concerted activity. The U.S. Chamber of Commerce suggests that the 
notice include ``or not'' after each of the enumerated rights. For 
example, ``you have the right to: form join or assist a union, or 
not.'' (Emphasis added.) Other suggested revisions to amplify the 
prominence of the provision include stating that employees have the 
right to refrain from protected, concerted activities and/or union 
activities; stating that employees' right to refrain includes the right 
to actively oppose unionization, to not sign union authorization cards, 
to request a secret ballot election, to not be a member of a union or 
pay dues or fees (addressed further below), or to decertify a union 
(also addressed below); and stating that employees have the right to be 
fairly represented even if not a member of the union. One employer 
suggests that if the notice retains its current emphasis favoring union 
activity and disfavoring the freedom to refrain from such activity, 
employers will need to post their own notices that emphasize and 
elaborate on the right to refrain.
    The Board received at least four comments that argue that the 
notice, as written, may make employees believe that the employer is 
encouraging unionization. Two of those comments suggest that an 
employer is protected from compelled speech by Section 8(c) of the 
NLRA. (The Board has already rejected the latter argument; see section

[[Page 54022]]

II, subsection B, ``Statutory Authority,'' above.)
    The contention that the right to refrain from engaging in union 
activity is ``buried'' in the list of other affirmative rights or that 
the Board is biased in favor of unionization because of the choice of 
placement is without merit. The list of rights in the proposed notice 
is patterned after the list of rights in Section 7 of the NLRA, 29 
U.S.C. 157. Section 7 lists the right to refrain last, after stating 
several other affirmative rights before it. In addition, the Board's 
remedial notices list the right to refrain last. See Ishikawa Gasket 
America, Inc., above. So does the Board's Notice of Election. In 
addition, the notice required by this rule states that it is illegal 
for an employer to take adverse action against an employee ``because 
[the employee] choose[s] not to engage in any such [union-related] 
activity.'' The Board has revised the introduction of the notice to 
include the right to refrain--this addition further highlights an 
employee's right to refrain from union activity. Finally, the Board 
believes that people understand a right as different from an obligation 
and thus will, for example, understand that the right to organize a 
union includes the right not to do so. Accordingly, the Board concludes 
that the notice sufficiently addresses the right to refrain among the 
list of statutory rights. In addressing the numerous comments 
questioning the Board's neutrality, the Board points out that in 
Section 1 of the NLRA, Congress declared that it is the policy of the 
United States to mitigate or eliminate obstructions to the free flow of 
commerce ``by encouraging the practice and procedure of collective 
bargaining and by protecting the exercise by workers of full freedom of 
association, self-organization, and designation of representatives of 
their own choosing, for the purpose of negotiating the terms and 
conditions of their employment or other mutual aid or protection.'' 29 
U.S.C. 151. Thus, by its own terms, the NLRA encourages collective 
bargaining and the exercise of the other affirmative rights guaranteed 
by the statute. In doing so, however, the NLRA seeks to ensure employee 
choice both to participate in union or other protected concerted 
activity and to refrain from doing so.
    Turning to the issues of whether the notice creates the impression 
that the employer is encouraging unionization and whether an employer 
can be compelled to post the notice which contains information the 
employer would otherwise not share with employees, the Board disagrees 
with both arguments. First, the notice clearly states that it is from 
the government. Second, in light of the other workplace notice 
employees are accustomed to seeing, employees will understand that the 
notice is a communication to workers from the government, not from the 
employer. Finally, as discussed above, NLRA Section 8(c) protects 
employers' right to express any ``views, argument, or opinion'' ``if 
such expression contains no threat of reprisal or force or promise of 
benefit.'' The rule does not affect this right. Therefore, if an 
employer is concerned that employees will get the wrong impression, it 
may legally express its opinion regarding unionization as long as it 
does so in a noncoercive manner.
    Critics of the notice contend that the notice should contain a 
number of additional rights and also explanations of when and how an 
employee may opt out of paying union dues. Thus, most employer groups 
argue that the notice should contain a statement regarding the right to 
decertify a union. A number of those comments state that the notice 
should provide detailed guidance on the process for decertifying a 
union. Others suggest that the notice should contain instructions for 
deauthorizing a union security clause. A majority of employers and 
individuals who filed comments on the content of the notice urge the 
Board to include a notice of employee rights under Communications 
Workers v. Beck. Baker & McKenzie suggests adding a provision informing 
employees that for religious purposes an employee may opt out of paying 
dues to a union.\107\ A few comments also suggest that the notice add 
any rights that employees may have in ``right-to-work'' states. As 
indicated previously, numerous comments suggest the inclusion of other 
rights of employees who do not desire union representation. Baker & 
McKenzie suggests a list of 26 additional affirmative rights, most of 
which only affect employees in a unionized setting and are derived from 
the Labor-Management Reporting and Disclosure Act, the Labor-Management 
Relations Act, or other Federal labor statutes enforced by the 
Department of Labor. The proposed list also includes some rights 
covered by the NLRA such as ``the right to sign or refuse to sign an 
authorization card,'' ``the right to discuss the advantages and 
disadvantages of union representation or membership with the 
employer,'' and ``the right to receive information from the employer 
regarding the advantages and disadvantages of union representation.''
---------------------------------------------------------------------------

    \107\ NLRA Section 19 provides that ``Any employee who is a 
member of and adheres to established and traditional tenets or 
teachings of a bona fide religion, body, or sect which has 
historically held conscientious objections to joining or financially 
supporting labor organizations shall not be required to join or 
financially support any labor organization as a condition of 
employment; except that such employee may be required in a contract 
between such employee's employer and a labor organization in lieu of 
periodic dues and initiation fees, to pay sums equal to such dues 
and initiation fees to a nonreligious, nonlabor organization 
charitable fund exempt from taxation[.]'' 29 U.S.C. 169.
---------------------------------------------------------------------------

    The Board has determined that the inclusion of these additional 
items is unnecessary. As discussed above, the NLRA itself contains only 
a general statement that employees have the right not to participate in 
union and/or other protected concerted activities. Section 19 does 
specifically set forth the right of certain religious objectors to pay 
the equivalent of union dues to a tax-exempt charity; however, this 
right is implicated only when an employer and union have entered into a 
union-security arrangement. Because the notice does not mention or 
explain such arrangements, the Board finds no reason to list this 
narrow exception to union-security requirements. In sum, the Board is 
not persuaded that the notice needs to expand further on the right to 
refrain by including a list of specific ways in which employees can 
elect not to participate or opt out of paying union dues. Employees who 
desire more information regarding the right not to participate can 
contact the Board.
    The Board does not believe that further explication of this point 
is necessary. However, because so many comments argue that the notice 
should include the right to decertify a union and rights under 
Communication Workers v. Beck, the Board has decided to explain 
specifically why it disagrees with each contention.
    Concerning the right to decertify, the notice states that employees 
have the right not to engage in union activity, ``including joining or 
remaining a member of a union.'' Moreover, the notice does not mention 
the right to seek Board certification of a union. Indeed, contrary to 
the numerous comments suggesting that the proposed notice is a 
``roadmap'' for union organizing, the notice does not even mention the 
right to petition for a union representation election, possibly leading 
to union certification; rather, it merely states that employees have 
the right to ``organize a union'' and ``form, join or assist a union.'' 
The notice does not give any further instructions on how an employee 
can exercise those rights. Similarly, the notice states that employees 
may choose not to remain a member of a union without further 
instructions on how to exercise that right. To include instructions for

[[Page 54023]]

exercising one right and not the other would upset the balanced 
recitation of rights. If employees have questions concerning how they 
can exercise their rights, the notice encourages them to contact the 
Board.
    The Board has also determined that the addition of Beck rights in 
the final notice is unnecessary. Those rights apply only to employees 
who are represented by unions under collective-bargaining agreements 
containing union-security provisions. As stated in the NPRM, unions 
that seek to obligate employees to pay dues and fees under those 
provisions are required to inform those employees of their Beck rights. 
See California Saw & Knife Works, above, 320 NLRB at 233. See 75 FR at 
80412-80413. The Board was presented with no evidence during this 
rulemaking that suggests that unions are not generally complying with 
their notice obligations. In addition, the Notice of Election, which is 
posted days before employees vote on whether to be represented by a 
union, contains an explanation of Beck rights. Moreover, as the Board 
stated in the NPRM, only about 8 percent of all private sector 
employees are represented by unions, and by no means are all of them 
subject to union-security clauses. Accordingly, the number of employees 
to whom Beck applies is significantly smaller than the number of 
employees in the private sector covered by the NLRA. Id. at 80413. 
Indeed, in the ``right-to-work'' states, where union-security clauses 
are prohibited, no employees are covered by union security clauses, 
with the possible exception of employees who work in a Federal enclave 
where state laws do not apply. Accordingly, because Beck does not apply 
to the overwhelming majority of employees in today's private sector 
workplace, and because unions already are obliged to inform the 
employees to whom it does apply of their Beck rights, the Board is not 
including Beck notification in the final notice.
    The Board also disagrees with the comment from Baker & McKenzie 
contending that an exhaustive list of additional rights should be 
included in the notice. In addition to the reasons discussed above, the 
Board finds that it would not be appropriate to include those rights, 
most of which are rights of union members vis-[agrave]-vis their 
unions. For example, the comment suggests including the ``right for 
each union member to insist that his/her dues and initiation fees not 
be increased * * * except by a majority vote by secret ballot * * *,'' 
the ``right of each employee in a bargaining unit to receive a copy of 
the collective bargaining agreement,'' and the ``right to nominate 
candidates, to vote in elections of the labor organization, to attend 
membership meetings, and to participate in the deliberations and voting 
upon business properly before the meeting.'' Those rights are not found 
in the NLRA, but instead arise from other Federal labor laws not 
administered by the NLRB. See Labor-Management Reporting and Disclosure 
Act of 1959, 29 U.S.C. 401 et seq (LMRDA). The Board finds that it 
would be inappropriate to include those additional rights in a notice 
informing employees of their rights under the NLRA.
vi. Other Comments
    The Board has also considered, but rejected, the contention that 
the notice contain simply a ``short and plain'' description of rights 
such as that used in remedial notices. See Ishikawa Gasket America, 
Inc., above. The two notices have different purposes: one looks back; 
the other, forward. As explained in the NPRM, the principal purpose of 
a remedial notice is to inform employees of unlawful conduct that has 
taken place and what is being done to remedy that conduct. Accordingly, 
although a remedial notice contains only a brief summary of NLRA 
rights, it also contains examples of unlawful actions that have been 
committed. To the extent that such a notice generally increases 
employees' awareness of their rights, the unlawful conduct detailed 
adds to that awareness. The proposed notice, by contrast, is a notice 
intended to make employees aware of their NLRA rights generally. It 
normally will not be posted against a background of already-committed 
unfair labor practices; it therefore needs to contain a summary both of 
NLRA rights and examples of unlawful conduct in order to inform 
employees effectively of the extent of their NLRA rights and of the 
availability of remedies for violations of those rights. Moreover, as 
the Board explained in the NPRM, the general notice of rights posted in 
the pre-election notice is sufficient because at least one union along 
with the employer is on the scene to enlighten employees of their 
rights under the NLRA. 75 FR 80412 fn.19.
    The fundamental rights described in the notice are well established 
and have been unchanged for much of the Board's history. Accordingly, 
the Board does not share the concern expressed in some comments that a 
new notice will have to be posted each time the composition of the 
Board changes.
    Finally, the Board rejects the contention that the notice should 
address certain rights of employers. The notice is intended to inform 
employees of their rights, not those of their employers.
    For all the foregoing reasons, the Board finds it unnecessary to 
modify the section of the notice summarizing employees' NLRA rights.
c. The Examples of Unlawful Employer Conduct in the Notice
    The proposed notice contained the following examples of unlawful 
conduct:
    Under the NLRA, it is illegal for your employer to:

    Prohibit you from soliciting for a union during non-work time, 
such as before or after work or during break times; or from 
distributing union literature during non-work time, in non-work 
areas, such as parking lots or break rooms.
    Question you about your union support or activities in a manner 
that discourages you from engaging in that activity.
    Fire, demote, or transfer you, or reduce your hours or change 
your shift, or otherwise take adverse action against you, or 
threaten to take any of these actions, because you join or support a 
union, or because you engage in concerted activity for mutual aid 
and protection, or because you choose not to engage in any such 
activity.
    Threaten to close your workplace if workers choose a union to 
represent them.
    Promise or grant promotions, pay raises, or other benefits to 
discourage or encourage union support.
    Prohibit you from wearing union hats, buttons, t-shirts, and 
pins in the workplace except under special circumstances.
    Spy on or videotape peaceful union activities and gatherings or 
pretend to do so. 75 FR 80419.

    The Board received limited comments on six of the seven examples of 
unlawful employer conduct. As a general matter, some comments contend 
that the number of examples of employer misconduct is disproportionate 
compared to the examples of union misconduct.\108\ Most of the comments 
refer to the number of paragraphs devoted to illegal employer conduct 
(7) and the number of paragraphs devoted to illegal union conduct (5). 
Several comments indicate that when one compares the employer 
misconduct listed in Section 8(a) of the NLRA with union misconduct 
listed in Section 8(b), no such imbalance appears in the text of the 
statute. Several comments provide additional examples of union 
misconduct that they say should be included.
---------------------------------------------------------------------------

    \108\ See, e.g., comments of COLLE, Baker & McKenzie, National 
Association of Manufacturers, and American Trucking Association.
---------------------------------------------------------------------------

    As with the notice's statement of affirmative rights, some of the

[[Page 54024]]

individual provisions in this section of the notice received numerous 
comments and suggestions for improvement. The vast majority of the 
comments about the specific provisions are from representatives of 
employers. Those comments generally contend that the provisions are 
overgeneralizations and do not articulate the legal standard for 
evaluating allegations of unlawful conduct or indicate factual 
scenarios in which certain employer conduct may be lawful.
    After reviewing all of the comments, the Board has decided to 
revise one of the examples of unlawful employer conduct contained in 
the NPRM. The Board concludes that the other provisions, as proposed, 
are accurate and informative and, as with the notice as a whole, strike 
an appropriate balance between being simultaneously instructive and 
succinct.
    Furthermore, the Board sees no reason to add or subtract from the 
employer or union illegal activity to make the two sections contain an 
equal number of paragraphs. The comment that argues that no imbalance 
exists in the statute is correct, but the majority of violations under 
Section 8(b) concern union conduct vis-[agrave]-vis employers, not 
conduct that impairs employees' rights. The notice of rights is 
intended to summarize employer and union violations against employees; 
accordingly, there is no need to alter the list to include unlawful 
union activity against employers.
i. No-Solicitation and No-Distribution Rules
    The Board received a few comments that were critical of the 
proposed notice language stating that an employer cannot lawfully 
prohibit employees from ``soliciting for the union during non-work time 
or distributing union literature during non-work time, in non-work 
areas.'' The Service Employees International Union comments that 
``solicitation'' has a narrow meaning and involves asking someone to 
join the union by signing an authorization card, which is subject to 
the restrictions suggested in the notice. The comment submits that the 
notice should state that an employer cannot prohibit employees from 
``talking'' about a union. The comment suggests that ``talking'' is 
both more accurate and is easier for employees to understand than 
``soliciting.''
    The remaining comments criticize the provision for failing to note 
any limitations on employees' rights to solicit and distribute, such as 
the limited rights of off-duty employees, and limitations in retail and 
health care establishments. One comment, in particular, suggests the 
notice should advise healthcare employees that they do not enjoy a 
protected right to solicit in immediate patient care areas or where 
their activity might disturb patients. See Beth Israel Hosp. v. NLRB, 
437 U.S. 483 (1978). The comment proposes to include a qualification 
that a hospital or other health care employer may prohibit all 
solicitation in immediate patient care areas or outside those areas 
when necessary to avoid disrupting health care operations or disturbing 
patients. Another comment suggests that the law in this area is so 
complex that no meaningful but succinct provision can be constructed, 
and therefore recommends deleting it entirely.
    The Board disagrees with those comments. The Board appreciates that 
under case law, employees' right to engage in solicitation and 
distribution of literature is qualified in certain settings and 
accordingly that employers may, in some situations, legally prohibit 
solicitation or distribution of literature even during employees' 
nonworking time. Given the variety of circumstances in which the right 
to solicit and distribute may be limited, however, the Board has 
determined that limitations on the size and format of the notice 
preclude the inclusion of factual situations in which an employer may 
lawfully limit such activity. As stated above, employees may contact 
the NLRB with specific questions about the lawfulness of their 
employers' rules governing solicitation and literature distribution.
    Turning to the suggestion that the notice should be modified to 
remove the reference to union solicitation in favor of a reference only 
to the right to engage in union talk, the Board agrees in part. The 
Board distinguishes between soliciting for a union, which generally 
means encouraging a co-worker to participate in supporting a union, and 
union talk, which generally refers to discussions about the advantages 
and disadvantages of unionization. Scripps Memorial Hosp., 347 NLRB 52 
(2006). The right to talk about terms and conditions of employment, 
which would necessarily include union talk, is encompassed more 
specifically by the ``discussion'' provision in the affirmative rights 
section of the notice. That provision indicates that employees have the 
right to ``discuss your terms and conditions of employment or union 
organizing with your co-workers or a union.'' In order to maintain 
consistency and clarity throughout the notice, the Board agrees that 
some change is necessary to the solicitation provision. Accordingly, 
the final notice will state that it is illegal for an employer to 
``prohibit you from talking about or soliciting for a union during non-
work time, such as before or after work or during break times; or from 
distributing union literature during non-work time, in non-work areas, 
such as parking lots or break rooms.''
ii. Questioning Employees About Union Activity
    The Board received one comment concerning this provision, 
suggesting that it was confusing. The Board believes the existing 
language is sufficiently clear.
iii. Taking Adverse Action Against Employees for Engaging in Union-
Related Activity
    The Board did not receive any specific comments regarding this 
provision.
iv. Threats To Close
    A few comments from employer groups criticize the perceived 
overgeneralization of this provision. Those comments note that, as with 
unlawful interrogation, a threat to close is evaluated under a totality 
of circumstances, and that an employer is permitted to state the 
effects of unionization on the company so long as the statement is 
based on demonstrably probable consequences of unionization.
    The Board agrees that the law in this general area is complex and 
that predictions of plant closure based on demonstrably probable 
consequences of unionization may be lawful. NLRB v. Gissel Packing Co., 
395 U.S. 575, 618 (1969). However, the example in the proposed notice 
is not such a prediction; rather, the notice states that it is unlawful 
for an employer to ``threaten to close your workplace if workers choose 
a union to represent them.'' Such a statement, which clearly indicates 
that the employer will close the plant in retaliation against the 
employees for choosing union representation, is unlawful. Id. at 618-
619. Thus, the Board finds it unnecessary to modify or delete this 
provision of the notice.
v. Promising Benefits
    The Board received one comment addressing this provision. The 
comment argues that the provision is ``troubling'' because it may be 
interpreted by a reader to mean ``anytime their employer seeks to make 
such improvements it discourages union support because improved wages 
and benefits may reduce employee's interest in a union.'' The Board 
does not think such an

[[Page 54025]]

interpretation would be reasonable, because it is contrary to the plain 
language of the notice. The notice states that promises or grants of 
benefits ``to discourage or encourage union support'' are unlawful. It 
would make little sense to use such language if the Board had meant 
that any promises or grants of benefits were unlawful, rather than only 
those with the unlawful stated purposes. And stating that such promises 
or grants to * * * encourage union support are unlawful necessarily 
implies that not all promises and grants of benefits discourage union 
support.
vi. Prohibitions on Union Insignia
    A few comments suggest that the provision fails to illuminate the 
conditions under which ``special circumstances'' may exist, including 
in hotels or retail establishments where the insignia may interfere 
with the employer's public image, or when the insignia is profane or 
vulgar. Another comment indicates that the provision is overly broad 
because it does not reflect that a violation depends on the work 
environment and the content of the insignia. All the comments 
addressing this provision suggest either adding more detail to the 
provision to narrow its meaning, or striking the provision entirely.
    Again, the Board disagrees. Employees have a statutorily protected 
right to wear union insignia unless the employer is able to demonstrate 
``special circumstances'' that justify a prohibition. Republic Aviation 
Corp. v. NLRB, 324 U.S. 793 (1945). For reasons of format, the notice 
cannot accommodate those comments suggesting that this provision 
specify cases in which the Board has found ``special circumstances,'' 
such as where insignia might interfere with production or safety; where 
it conveys a message that is obscene or disparages a company's product 
or service; where it interferes with an employer's attempts to have its 
employees project a specific image to customers; where it hinders 
production; where it causes disciplinary problems in the plant; where 
it is in an immediate patient care areas; or where it would have any 
other consequences that would constitute special circumstances under 
settled precedent. NLRB v. Mead Corp., 73 F.3d 74, 79 (6th Cir. 1996), 
enfg. Escanaba Paper Co., 314 NLRB 732 (1994).
    Given the lengthy list of potential special circumstances, the 
addition of one or two examples of special circumstances might mislead 
or confuse employees into thinking that the right to wear union 
insignia in all other circumstances was absolute. And including an 
entire list of special circumstances, concerning both the wearing of 
union insignia and other matters (e.g., striking and picketing, 
soliciting and distributing union literature), would make it impossible 
to summarize NLRA rights on an 11x17 inch poster. In any event, the 
Board finds that the general caveat that special circumstances may 
defeat the application of the general rule, coupled with the advice to 
employees to contact the NLRB with specific questions about particular 
issues, achieves the balance required for an employee notice of rights 
about wearing union insignia in the workplace.
vii. Spying or Videotaping
    Aside from the few comments that suggest the provision be stricken, 
only one comment specifically addresses the content of this provision. 
The comment states that the language is confusing because a 
``supervisor might believe it would be permissible to photograph or 
tape record a union meeting. Another might say that their video camera 
doesn't use tape so it's okay to use.'' The Board has determined that 
no change is necessary. In the Board's view, it is unlikely that a 
reasonable supervisor would construe this notice language (which also 
says that it is unlawful to ``spy on'' employees' peaceful union 
activities) as indicating that it is unlawful to videotape, but lawful 
to tape record or photograph, such activities. Supervisors are free to 
contact the Board if they are unsure whether a contemplated response to 
union activity might be unlawful.
viii. Other Suggested Additions to Illegal Employer Conduct
    The Heritage Foundation suggests that the Board add language to the 
notice informing employees that if they choose to be represented by a 
union, their employer may not give them raises or bonuses for good 
performance without first bargaining with the union. The comment 
suggests that the Board add the following provision ``if a union 
represents you and your co-workers, give you a pay raise or a bonus, or 
reduce or dock your pay, without negotiating with the union.'' The 
Board rejects this suggestion for the same reason it rejects other 
comments contending that the notice should include the consequences of 
unionization in the summary of NLRA rights, above.
    The National Immigration Law Center suggests that the Board add the 
following to the notice poster:

    Under the NLRA, it is illegal for your employer to: Report you 
or threaten to report you to Immigration and Customs Enforcement 
(ICE) or to other law enforcement authorities in order to intimidate 
or retaliate against you because you join or support a union, or 
because you engage in concerted activity for mutual aid and 
protection.

The Board finds it unnecessary to add this statement. The notice states 
that it is unlawful for an employer to ``fire, demote, or transfer you, 
or reduce your hours or change your shift, or otherwise take adverse 
action against you, or threaten to take any of these actions, because 
you join or support a union, or because you engage in concerted 
activity for mutual aid and protection (emphasis added) [.]'' Reporting 
or threatening to report an employee in the manner described in the 
comment would be a form of adverse action or threat thereof, and the 
Board believes that it would be understood as such.
d. Examples of Illegal Union Activity
    The proposed notice contained the following examples of unlawful 
union conduct:
    Under the NLRA, it is illegal for a union or for the union that 
represents you in bargaining with your employer to:

    Threaten you that you will lose your job unless you support the 
union.
    Refuse to process a grievance because you have criticized union 
officials or because you are not a member of the union.
    Use or maintain discriminatory standards or procedures in making 
job referrals from a hiring hall.
    Cause or attempt to cause an employer to discriminate against 
you because of your union-related activity.
    Take other adverse action against you based on whether you have 
joined or support the union.

75 FR 80419.

    There were only a few comments addressing specific changes to the 
language in this section of the notice. ALFA criticizes the provision 
that states that a union may not ``threaten you that you will lose your 
job unless you support the union,'' because the proposed language 
``fails to capture Section 8(b)(1)(A)'s broader prohibition against 
restraint and coercion.'' The comment suggests revising the language to 
state that a union may not ``[r]estrain or coerce you in the exercise 
of your right to refrain from joining a union by threatening to inflict 
bodily harm or following you to your home and refusing to leave unless 
you sign a union card.'' That comment also suggests adding a provision 
stating that it is unlawful for a union to ``promise to waive your 
union initiation fee if you agree to sign a union card before a vote is 
taken.''

[[Page 54026]]

    Another comment argues that the illegal union conduct portion of 
the notice fails to fully inform employees of their rights as union 
members.\109\ In contrast, another comment states a different 
position--that the list of illegal union conduct ``ostensibly relates 
only to restraint or coercion by a union in a unionized environment.'' 
\110\ The comment further states that the Board should have included 
examples of ``union restraint or coercion in an organizing setting'' 
but gives no specific examples.
---------------------------------------------------------------------------

    \109\ See comment of National Association of Manufacturers.
    \110\ See comment of ALFA.
---------------------------------------------------------------------------

    ALFA suggests three changes to the unlawful union activity section. 
First, rather than say that the union may not ``threaten you that you 
will lose your job,'' a more comprehensive statement would be 
``threaten, harass, or coerce you in order to gain your support for the 
union.'' The Board agrees, except as regards ``harass,'' which is 
sometimes used to characterize almost any sort of union solicitation. 
Accordingly, the statement will be modified to read ``threaten or 
coerce you in order to gain your support for the union.'' Second, the 
comment suggests changing ``cause or attempt to cause an employer to 
discriminate against you'' to ``discriminate or attempt to discriminate 
against you because you don't support a union.'' The Board disagrees, 
because the suggested change would shift the focus of the provision 
away from the sort of conduct contemplated in the rule. See NLRA 
Section 8(b)(2), 29 U.S.C. 158(b)(2). Third, the comment suggests 
changing ``take other adverse action against you based on whether you 
have joined or support the union'' to ``take adverse action against you 
because you have not joined or do not support the union.'' The Board 
agrees and will modify this provision of the notice accordingly.
    Baker & McKenzie urges that a variety of other examples of unlawful 
union conduct be added to the notice, including requiring nonmembers to 
pay a fee to receive contract benefits, disciplining members for 
engaging in activity adverse to a union-represented grievant, 
disciplining members for refusing to engage in unprotected activity, 
engaging in careless grievance handling, failing to notify employees of 
their Beck rights, requiring employees to agree to dues checkoff 
instead of direct payment, discriminatorily applying hiring hall rules, 
and conditioning continued employment on the payment of a fine or dues 
in ``right-to-work'' states.
    As with the examples of unlawful employer activity, the Board 
concludes that the provisions concerning unlawful union activity, as 
proposed, are accurate and informative, and, as with the notice as a 
whole, strike an appropriate balance between being simultaneously 
instructive and succinct. Moreover, the Board finds it unnecessary to 
include additional examples of unlawful conduct so that the lists of 
employer and union activity are the same length because the notice 
describes the central forms of unlawful conduct engaged in by each type 
of entity. Still less is it necessary to add a host of additional 
examples of unlawful union conduct, with the result that the list of 
such conduct would be much longer than the list of unlawful employer 
conduct. In the Board's view, the list of unlawful union conduct in the 
proposed notice fairly informs employees of the types of conduct that a 
union is prohibited from engaging in without providing unnecessary or 
confusing examples. Employees may contact the NLRB if they believe a 
union has violated the NLRA.
e. Collective-Bargaining Provision
    The collective-bargaining provision of the NPRM states that ``if 
you and your co-workers select a union to act as your collective 
bargaining representatives, your employer and the union are required to 
bargain in good faith and in a genuine effort to reach a written, 
binding agreement setting your terms and conditions of employment. The 
union is required to fairly represent you in bargaining and enforcing 
the agreement.'' 75 FR 80419.
    The Board received only a few comments on this provision of the 
notice. Notably, COLLE requests the inclusion of a limitation on the 
provision that employees have the right to bargain collectively, in 
order to clarify that the employer's obligation is only to bargain in 
good faith and not necessarily to reach an agreement. A second comment 
suggests that the notice inform employees that they have the right to 
``sue a union for unfairly representing the employee in bargaining, 
contract administration, or a discrimination matter.''
    The Board has decided that no changes are necessary to the duty to 
bargain paragraph. The Board is satisfied that the proposed collective-
bargaining provision provides sufficient guidance to employees about 
the exercise of these rights while still staying within the constraints 
set by a necessarily brief employee notice. As to the first comment, 
the notice states that an employer and union have a duty to ``bargain 
in good faith and in a genuine effort to reach a written, binding 
agreement.'' As discussed above, by referring to a ``genuine effort'' 
to reach agreement, the notice necessarily implies that the parties are 
not obliged to actually reach one. The duty to bargain in good faith 
has many components. See NLRB v. Katz, 369 U.S. 736 (1962). And the 
suggestion that employers do not have to agree to certain proposals, 
although correct, does not account for the line of cases that suggest 
that an important ingredient in good faith bargaining is a willingness 
to compromise. See Phelps Dodge, 337 NLRB 455 (2002).
    Turning to the suggestion that the notice include language 
informing employees of their right to ``sue'' the union if it fails to 
represent them fairly, the Board has concluded that the notice 
sufficiently apprises employees of their right to fair representation 
and of their right to file unfair labor practice charges with the Board 
should a union fail to fulfill that duty. The rights that employees 
have to sue unions directly in court without coming to the Board are 
beyond the scope of this rulemaking.
f. Coverage Provision
    In regard to coverage under the NLRA, the proposed notice states:

    The National Labor Relations Act covers most private-sector 
employers. Excluded from coverage under the NLRA are 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). 75 FR 
80419.

    A comment from the National Immigration Law Center suggests adding 
the following language: ``The NLRA protects the above-enumerated rights 
of all employees, irrespective of their immigration status. That 
protection extends to employees without work authorization, though 
certain remedies in those circumstances may be limited. Employers 
cannot threaten you or intimidate you on the basis of you immigration 
status to prevent you from joining or supporting a union, or engaging 
in concerted activity for mutual aid and protection.''
    The Board has decided not to amend the coverage provision in the 
final notice. Although the Board understands that many immigrant 
employees may be unsure whether they are covered by the NLRA, the 
notice does not include a list of covered employees. Including specific 
coverage of immigrants, but not other classes of employees, may cause

[[Page 54027]]

confusion for many employees. Currently, the language in the notice 
tracks statutory language and provides only the list of employees 
excluded from coverage. As a result, those employees not listed under 
the exclusions will reasonably believe they are covered employees under 
the statute. Any employees who are unsure of their status should 
contact a regional office of the NLRB.
    The final notice as modified is set forth in the Appendix to 
Subpart A of this rule.
2. Posting Issues
    The Board proposed that the notice to employees shall be at least 
11 inches by 17 inches in size, and in such colors and type size and 
style as the Board shall prescribe. The proposed rule further provides 
that employers that choose to print the notice after downloading it 
from the Board's Web site must print in color, and the printed notice 
shall be at least 11 inches by 17 inches in size.
    Proposed 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, http://www.nlrb.gov, for their use. 
It further provides that employers may reproduce exact duplicates of 
the poster supplied by the Board, and that they may also use commercial 
poster services to provide the employee notice consolidated onto one 
poster with other Federally mandated labor and employment notices, as 
long as consolidation does not alter the size, color, or content of the 
poster provided by the Board. Finally, employers that have significant 
numbers of employees who are not proficient in English will be required 
to post notices of employee rights in the language or languages spoken 
by significant numbers of those employees. The Board will make 
available posters containing the necessary translations.
    In addition to requiring physical posting of paper notices, 
proposed 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.\111\ An 
employer that customarily posts notices to its employees on an intranet 
or internet site must display the required employee notice on such a 
site prominently--i.e., no less prominently than other notices to 
employees. The Board proposed to give employers two options to satisfy 
this requirement. An employer may either download the notice itself and 
post it in the manner described above, or post, in the same manner, a 
link to the Board's Web site that contains the full text of the 
required employee notice. In the latter case, the proposed rule states 
that the link must contain the prescribed introductory language from 
the poster, which appears in Appendix to Subpart A, below. An employer 
that customarily communicates with its employees by e-mail will satisfy 
the electronic posting requirement by sending its employees an e-mail 
message containing the link described above.
---------------------------------------------------------------------------

    \111\ See J. Picini Flooring, 356 NLRB No. 9, slip op. at 6 
(2010).
---------------------------------------------------------------------------

    The proposed rule provides that, where a significant number of an 
employer's employees are not proficient in English, the employer must 
provide the required electronic notice in the language the employees 
speak. This requirement can be met either by downloading and posting, 
as required in 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. 75 FR 80417.
    Section 104.203 of the proposed rule provides that Federal 
contractors may comply with the requirements of the rule by posting the 
notices to employees required under the Department of Labor's notice-
posting rule, 29 CFR part 471. Id.
    The Board solicited comments on its proposed requirements for both 
physical and electronic notice posting. In addition, the Board 
solicited comments on whether it should prescribe standards regarding 
the size, clarity, location, and brightness of the electronic link, 
including how to prescribe electronic postings that are at least as 
large, clear, and conspicuous as the employer's other postings.
    The Board received numerous comments concerning the technical 
requirements for posting the notices of employee rights. Those comments 
address the locations where notices would be physically posted, 
physical characteristics of the posters, requirements for posting in 
languages other than English, details of the requirement for electronic 
posting of notices by employers that customarily communicate with their 
employees electronically, and ``safe harbor'' provisions for Federal 
contractors that are already posting the Department of Labor's notice 
of NLRA rights.
a. Location of Posting
    Section 104.202(d) of the proposed rule requires that the notice be 
posted ``in conspicuous places, including all places where notices to 
employees are customarily posted.'' Some employers and their 
representatives, including law firm Baker & McKenzie, comment that the 
proposed rule does not define ``customarily.'' The Board responds that 
the term is used in its normal meaning of ``ordinarily'' or 
``usually,'' as it has been used in the Board's remedial orders for 
decades.\112\ This standard is consistent with the posting requirements 
in the regulations and statutes of other agencies.\113\ Baker & 
McKenzie's comment contends that the quoted phrase should read instead 
``where other legally-required notices to employees are customarily 
posted.'' The Board disagrees. As under the Department of Labor's 
notice posting requirement,\114\ the Board's final rule clarifies that 
the notice must be posted wherever notices to employees regarding 
personnel rules and policies are customarily posted and are readily 
seen by employees, not simply where other legally mandated notices are 
posted.
---------------------------------------------------------------------------

    \112\ See, e.g., The Golub Corporation, 159 NLRB 355, 369 
(1966).
    \113\ See, e.g., 29 CFR 1903.2 (Occupational Safety and Health 
Act); 29 CFR 1601.30 (Title VII of the Civil Rights Act of 1964); 42 
U.S.C. 2000e-10(a) (Americans with Disabilities Act); 29 U.S.C. 
2619(a) (Family and Medical Leave Act).
    \114\ 75 FR 28386.
---------------------------------------------------------------------------

    A number of comments from employers \115\ and individuals take the 
position that it is time to move away from paper posters and to 
encourage employees to inform themselves of their rights through the 
Internet. Many comments object that the posting requirement will add to 
already cluttered bulletin boards or necessitate additional bulletin 
boards.\116\ The Board responds to these comments above in section II, 
subsection C, Factual Support for the Rule. The Council of Smaller

[[Page 54028]]

Enterprises further maintains that the requirement to ensure that the 
notice is conspicuous and not altered or defaced imposes an unnecessary 
burden on employers. Caremaster Medical Services' comment asks whether 
periodic inspections of the notices will be conducted and, if so, by 
whom. Specifically, this comment expresses concern that employers will 
be forced to permit union officials to enter their facilities to 
inspect the notices. The rule does not provide for such inspections or 
alter current standards regarding union access to employers' premises. 
Rather, the Board contemplates that an employer's failure to comply 
with the rule will be brought to the attention of the employer or the 
Board by employees or union representatives who are lawfully on the 
premises.
---------------------------------------------------------------------------

    \115\ See, e.g., comments of Buffalo Wild Wings; Associated Milk 
Producers, Inc.; Smitty's, Inc.; National Grocers Association; and 
Sorensen/Wille, Inc.
    \116\ See, e.g., comments of Dr. Pepper Snapple Group; Georgia 
Caremaster Medical Services; Homestead Village, Inc.; Exodus Designs 
& Surfaces; Bonnie Dedmore State Farm.
---------------------------------------------------------------------------

    The International Union of Operating Engineers comments that the 
rule needs to apply to the marine construction industry, in which 
employees work at remote sites and do not necessarily see a posting in 
the office. Another comment similarly states that the rule is not 
practical for small employers with dispersed employees, e.g., trucking 
or insurance companies.\117\ Similarly, one comment contends that the 
requirement is burdensome for construction employers, whose employees 
report to various worksites.\118\ The Board recognizes that certain 
work situations, such as those mentioned in the comments, present 
special challenges with regard to physical posting. However, the Board 
concludes that these employers must nonetheless post the required 
notice at their work premises in accordance with the proposed rule. 
Electronic posting will also aid the employers in providing the notice 
to their employees in the manner in which they customarily communicate 
with them.
---------------------------------------------------------------------------

    \117\ Comment of TLC Companies.
    \118\ Comment of NAI Electrical Contractors.
---------------------------------------------------------------------------

    TLC Companies contends that professional employer organizations 
(PEOs) such as itself should be exempt from the rule's requirements. It 
explains that PEOs are ``co-employers'' of a client employer's 
employees, providing payroll and other administrative services. 
However, it asserts that PEOs have no control over the client 
employer's worksite. Accordingly, TLC Companies is concerned that a PEO 
could be found liable for its client's failure to post the notice. The 
Board contemplates that employers will be required to physically post a 
notice only on their own premises or at worksites where the employer 
has the ability to post a notice or cause a notice to be posted 
directed to its own employees.
    Retail Industry Leaders Association asks whether the rule would 
apply to overseas employees of American employers. The answer to that 
question is generally ``no''; the Board's jurisdiction does not extend 
to American employees engaged in permanent employment abroad in 
locations over which the United States has no legislative control. See 
Computer Sciences Raytheon, 318 NLRB 966 (1995). Employers of employees 
who are working abroad only temporarily are not required to post the 
notice in foreign workplaces.
b. Size and Form Requirements
    Many comments from organizations and individuals object to the 
11x17-inch size prescribed by the proposed rule.\119\ They argue that 
most employers do not have the capacity to make 11x17-inch color copies 
and will have to use commercial copy services, which some contend are 
expensive. A human resources official also asserts that other required 
notices are smaller, and that the larger poster will be more eye-
catching, implying that NLRA rights are more important. Other comments 
support the proposed 11x17-inch size, stating that the notice should 
stand out and be in large print, with one comment specifying that the 
title should be larger.\120\ The AFL-CIO argues that employers should 
not be permitted to download the notice from the Board's Web site if 
their limited printing capacity would make it less eye-catching.
---------------------------------------------------------------------------

    \119\ See, e.g., comment of Associated General Contractors (AGC) 
of Iowa.
    \120\ See, e.g., comments of AFL-CIO and three Georgetown 
University Law Center students.
---------------------------------------------------------------------------

    A few comments contend that the prescribed size will make it 
difficult to include in consolidated posters of various statutory 
rights, as the proposed rule permits.\121\ One comment urges the Board 
to follow the ``3' rule,'' according to which a notice is large enough 
if it can be read from a distance of 3 feet,\122\ and another suggests 
only a legibility requirement.\123\ One comment states that minor 
deviations, such as \1/4\ inch, should not be deemed violations.\124\ 
Another comment expresses a concern that a large, prominent poster 
could cause a few unhappy employees to begin activity that could result 
in divisiveness in a small facility.\125\
---------------------------------------------------------------------------

    \121\ See, e.g., comment of Sinnissippi Centers.
    \122\ AGC of Iowa.
    \123\ Sinnissippi Centers.
    \124\ National Council of Agricultural Employers.
    \125\ Mercy Center Nursing Unit Inc.
---------------------------------------------------------------------------

    The Board has decided to retain the 11x17-inch poster size. As the 
NPRM states, the Board will furnish paper copies of the notice, at no 
charge, to employers that ask for them. Employers that prefer to 
download and print the notice from the Board's Web site will have two 
formats available: a one-page 11x17-inch version and a two-page 8 \1/
2\x11-inch version, which must be printed in landscape format and taped 
together to form the 11x17-inch poster. In response to the comments 
objecting to the added expense of obtaining color copies through 
outside sources, the Board has revised the rule to delete the 
requirement that reproductions of the notice be in color, provided that 
the reproductions otherwise conform to the Board-provided notice. 
Accordingly, the Board concludes that obtaining copies of the notice 
will not be difficult or expensive for employers.
    The Board finds no merit to the other objections to the 11x17-inch 
poster size. Contrary to some comments, the Board does not believe that 
employees would think that NLRA rights are more important than other 
statutory rights, merely because the notice of NLRA rights is somewhat 
larger than notices prescribed under some other statutes. It would seem 
that, upon learning of all of their rights in the workplace, employees 
will determine from their understanding of the rights themselves, 
rather than the size of the various posters, which rights (if any) are 
more important to them than others. In the Board's view, adopting a 
subjective ``3' rule'' or a ``legibility standard'' could lead to 
disagreements over whether a particular poster was ``legible'' or could 
be read at a distance of 3 feet. In addition, if, as some comments 
contend (without citing specifics), the size of the Board's notice will 
pose a problem for manufacturers of consolidated posters to include it 
with posters detailing other workplace rights, that would seem to be a 
problem best left to those manufacturers to solve.
c. Language Issues
    The proposed rule requires that, ``[w]here a significant portion of 
an employer's workforce is not proficient in English, the employer must 
provide the notice in the language the employees speak.'' This is the 
same standard applied in the Department of Labor's notice of NLRA 
rights for federal contractors (29 CFR 471.2(d)) and in the notice 
required under the Family and Medical Leave Act (29 CFR 825.300(4)). 
Many comments support the requirement and availability of translated 
notices, particularly as an essential way of informing immigrant

[[Page 54029]]

employees about their rights.\126\ But several comments complain that 
the rule does not define ``significant.'' \127\ Baker & McKenzie 
proposes that the standard be 40 percent specifically of the employer's 
production and maintenance workforce, while the National Immigration 
Law Center proposes a 5 percent standard. Another comment urges that 
translated notices be required whenever any of the employees are not 
proficient in English.\128\ The U.S. Chamber of Commerce asserts that a 
safe harbor is needed for employers when a notice in a particular 
language is not yet available from the Board. Moreover, a few comments 
contend that the Board should also provide Braille notices for vision-
impaired employees, as well as audio versions for illiterate employees, 
and versions of the notice that are adaptable to assistive 
technologies.\129\ One individual proposes that the rule mandate that 
employers read the notice to employees when they are hired and to all 
employees annually.
---------------------------------------------------------------------------

    \126\ See, e.g., comments of National Immigration Law Center, 
Legal Aid Society--Employment Law Center, and La Raza Centro Legal; 
Filipino Advocates for Justice.
    \127\ See, e.g., comments of COLLE; Food Marketing Institute 
(FMI).
    \128\ Georgetown law students.
    \129\ See, e.g., Baker & McKenzie; Heritage Foundation; 
Georgetown law students.
---------------------------------------------------------------------------

    Having carefully considered the comments, the Board has decided to 
define ``significant'' in terms of foreign-language speakers as 20 
percent or more of an employer's workforce. Thus, if as many as 20 
percent of an employer's employees are not proficient in English but 
speak the same foreign language, the employer must post the notice in 
that language, both physically and electronically (if the employer is 
otherwise required to post the notice electronically). If an employer's 
workforce includes two or more groups constituting at least 20 percent 
of the workforce who speak different languages, the employer must 
either physically post the notice in each of those languages or, at the 
employer's option, post the notice in the language spoken by the 
largest group of employees and provide each employee in each of the 
other language groups a copy of the notice in the appropriate language. 
If such an employer is also required to post the notice electronically, 
it must do so in each of those languages. If some of an employer's 
employees speak a language not spoken by employees constituting at 
least 20 percent of the employer's workforce, the employer is 
encouraged, but not required, either to provide the notice to those 
employees in their respective language or languages or to direct them 
to the Board's Web site, http://www.nlrb.gov, where they can obtain 
copies of the notice in their respective languages. The Board has also 
decided to add to the notice instructions for obtaining foreign-
language translations of the notice.
    Employers will be required to request foreign-language notices from 
the Board or obtain them from the Board's Web site in the same manner 
as the English-language notice. If an employer requests from the Board 
a notice in a particular language in which the notice is not available, 
the requesting employer will not be liable for non-compliance with the 
rule until the notice becomes available in that language.
    With respect to employees who are vision-impaired or those who are 
illiterate, employers may consult the Board's Regional Office on a 
case-by-case basis for guidance on appropriate methods of providing the 
required notice, including by audio recording.
d. Electronic Posting
    Many employer comments oppose the requirement for electronic 
notice. The Coalition for a Democratic Workplace points out that other 
agencies do not require both electronic and physical posting and 
asserts that only one method is necessary. For example, the Coalition 
notes that the Family and Medical Leave Act notice obligation is 
satisfied by electronic posting alone, and other statutes do not 
mention electronic posting. The National Council of Agricultural 
Employers urges the Board to require electronic posting only if the 
employer posts other statutory or regulatory notices in that fashion. 
Another proposes that employers be permitted to choose either physical 
or electronic posting. The National Association of Manufacturers 
remarks that the proposed rule breaks new ground for using an 
employer's email system to communicate information about ``union 
membership.'' The U.S. Chamber of Commerce suggests that this aspect of 
the rule would chill employers' use of new technologies. On the other 
hand, the AFL-CIO and several other commenters \130\ support electronic 
as well as physical posting; the Center for American Progress Action 
Fund, among others, points out that electronic communications at work 
are standard now.
---------------------------------------------------------------------------

    \130\ See, e.g., comments of Gibson, Dunn, Cohen, Leifer & 
Yellig, P.C.; Beeson, Tayer & Bodine.
---------------------------------------------------------------------------

    After carefully considering these comments, the Board concludes 
that electronic posting will substantially assist in providing the 
prescribed notice to employees. As some comments state, electronic 
communication is now a routine practice in many workplaces and the 
source of much information from employers to their employees. However, 
the Board has clarified the final rule to mandate only that, if an 
employer customarily communicates personnel rules or policies to its 
employees in that manner, it must also do so with respect to the notice 
of employee rights under the NLRA. The concern that the rule will 
discourage employers from using new technologies is apparently not 
widely shared and, in the Board's view, is implausible. Although the 
Board recognizes that some other statutes and regulations do not 
require electronic notice, it notes that they generally predated the 
routine use of electronic communications in the workplace. Having only 
recently begun ordering electronic posting of remedial notices,\131\ 
the Board has limited experience in this area, and employers are 
encouraged to contact the local Regional Office with questions about 
this provision. The Board does not agree that employers should be 
permitted to choose whether to provide physical or electronic notice, 
because some employers could select the less effective of these 
alternatives, thus undermining the purpose of the rule. Finally, the 
rights stated in the notice are not accurately described as pertaining 
solely to union membership, and the notice is not intended to promote 
union membership or union representation. Rather, the notice addresses 
a broad range of employee legal rights under the NLRA, which involve 
protected concerted activity as well as union activity in both 
organized and unorganized workplaces, and also the right to refrain 
from any such activity.
---------------------------------------------------------------------------

    \131\ J. Picini Flooring, 356 NLRB No. 9 (2010).
---------------------------------------------------------------------------

    Many employer comments note that the proposed rule also does not 
define ``customarily'' as it pertains to electronic posting in Sec.  
104.202(f), i.e., the type and degree of communication that triggers 
the requirement.\132\ Numerous employers also participated in a 
postcard campaign objecting, among other things, that employers use a 
wide variety of technology to communicate with employees and that the 
rule could require them to use all methods to convey the notice.\133\ 
For

[[Page 54030]]

example, they ask whether an employer that occasionally uses text 
messaging or Twitter to communicate with employees would have to use 
those technologies and, if so, how they would be able to comply with 
the rule, in view of the length restrictions of these media. The U.S. 
Chamber of Commerce raises the same issue regarding faxing, voice mail, 
and instant messaging. The National Roofing Contractors Association 
notes that some employers use email to communicate with certain 
employees, while other employees have no access to email during their 
work day. As to email communication itself, an individual observes that 
many employees change jobs every 3 to 4 years, and an email reaches 
only those in the workforce at a specific time. The same comment notes 
that the proposed rule does not state when or how often email notice 
should be provided. Three Georgetown law students recommend that the 
rule mandate email as well as intranet notice to employees when it goes 
into effect and written notice to new employees within a week of their 
starting employment.
---------------------------------------------------------------------------

    \132\ See, e.g., comments of International Foodservice 
Distributors Association (IFDA); Associated Builders and 
Contractors; Los Angeles County Business Federation; National 
Roofing Contractors Association.
    \133\ See, e.g., comments of American Home Furnishings Alliance; 
Seawright Custom Precast; Mount Sterling, Kentucky Chamber of 
Commerce; U.S. Xpress, Inc.
---------------------------------------------------------------------------

    The Board responds that, as discussed above regarding the location 
of posting, ``customarily'' is used in its normal meaning. This 
provision of the rule would not apply to an employer that only 
occasionally uses electronic means to communicate with employees. 
However, in view of the numerous comments expressing concern over the 
proposed rule's email posting requirements, the Board has decided not 
to require employers to provide the notice to employees by means of 
email and the other forms of electronic communication listed in the 
previous paragraph. In the Board's judgment, the potential for 
confusion and the prospect of requiring repeated notifications in order 
to reach new employees outweigh the benefits that could be derived at 
the margin from such notifications. All employers subject to the rule 
will be required to post the notice physically in their facilities; and 
employers who customarily post notices to employees regarding personnel 
rules or policies on an internet or intranet site will be required to 
post the Board's notice on those sites as well. Moreover, those notices 
(unlike the Board's election and remedial notices) must remain posted; 
thus, it is reasonable to expect that even though some employees may 
not see the notices immediately, more and more will see them and learn 
about their NLRA rights as time goes by. Accordingly, the only 
electronic postings required under the final rule will be those on 
internet or intranet sites.
    Many comments address the characteristics of electronic posting, as 
prescribed in Sec.  104.202(f). In the NPRM, the Board proposed not to 
prescribe the size, clarity, location, or brightness of an electronic 
notice or link to the notice, but rather require that it be at least as 
prominent as other electronic notices to employees, as the Department 
of Labor's rule requires. No comments suggest more specific 
requirements; the Michigan Health & Hospital Association argues that 
such requirements would result in inadvertent noncompliance. The Board 
has decided to adopt the Department of Labor's approach, as proposed in 
the NPRM.
    Baker & McKenzie urges that the title of the link in the proposed 
rule be changed to ``Employee Rights under the National Labor Relations 
Act'' rather than ``Important Notice about Employees Rights to Organize 
and Bargain Collectively with Their Employers.'' The Board agrees and 
has revised the rule accordingly.
    A comment from Vigilant states that a link to the Board's Web site, 
which is one means of electronic posting, should not be required to 
include the introductory language of the notice. The Board agrees, 
noting that the Department of Labor takes this approach, and will not 
require that electronic links to the Board's Web site include the 
introductory language.
    For the foregoing reasons, the Board has decided to retain the 
posting requirements as proposed in the NPRM, modified as indicated 
above.
e. Compliance With the Department of Labor's Rule
    Several comments opposing the proposed rule urge that, if the rule 
becomes final, the Board should retain the ``safe harbor'' provided for 
Federal contractors that comply with the Department of Labor's notice 
posting rule.\134\ However, the U.S. Chamber of Commerce states that 
some employers post the Department of Labor's notice at facilities 
where it is not required or where Federal contract work is performed 
only sporadically. It questions whether such employers must replace the 
Department of Labor's notice with the Board's when no contract work is 
being performed, or whether they can comply with the Board's rule by 
leaving the Department of Labor's notice in place. The Chamber proposes 
that employers be allowed to choose to maintain the Department of 
Labor's notice, although another comment asserts that employees might 
think that the notice is no longer applicable because of the lack of a 
current contract. Another comment raises the possibility that either 
the Board or the Department of Labor could decide to change its notice 
and emphasized that they need to be identical in order to provide the 
safe harbor. The Board responds that a Federal contractor that complies 
with the Department of Labor's notice-posting rule will be deemed in 
compliance with the Board's requirement.\135\
---------------------------------------------------------------------------

    \134\ See, e.g., comments of IFDA; Estes; The Sack Company; 
National Roofing Contractors Association.
    \135\ A few comments ask whether the Board's rule would preempt 
the Department of Labor's rule. Because the answer to that question 
would not affect the validity of the Board's rule, the Board finds 
it unnecessary to take a position on that issue in this proceeding.
---------------------------------------------------------------------------

3. Exceptions
    The rule applies only to employers that are subject to the NLRA. 
Under NLRA Section 2(2), ``employer'' excludes the United States 
government, any wholly owned government corporation, any Federal 
Reserve Bank, any State or political subdivision, and any person 
subject to the Railway Labor Act, 45 U.S.C. 151 et seq. 29 U.S.C. 
152(2). Thus, under the proposed rule, those excluded entities are not 
required to post the notice of employee rights. The proposed rule also 
does not apply to entities that employ only individuals who are not 
considered ``employees'' under the NLRA. See Subpart A, below; 29 
U.S.C. 152(3). Finally, the proposed rule does not apply to entities 
over which the Board has been found not to have jurisdiction, or over 
which the Board has chosen through regulation or adjudication not to 
assert jurisdiction.\136\ The Board proposed that all employers covered 
under the NLRA would be subject to the notice posting rule. 75 FR 
80413.
---------------------------------------------------------------------------

    \136\ The proposed rule excludes small businesses whose impact 
on interstate commerce is de minimis or so slight that they do not 
meet the Board's discretionary jurisdiction requirements. See 
generally An Outline of Law and Procedure in Representation Cases, 
Chapter 1, found on the Board's Web site, http://www.nlrb.gov, and 
cases cited therein.
---------------------------------------------------------------------------

    The Coalition for a Democratic Workplace argues that the final rule 
cannot be applied to religiously-affiliated employers. The Coalition 
argues that assertion of jurisdiction would ``substantially burden 
[such employers'] exercise of religion in violation of both the First 
Amendment and the Religious Freedom Restoration Act.'' Similarly, 
Seyfarth Shaw contends that religiously-affiliated healthcare

[[Page 54031]]

institutions should be excluded from coverage if they are nonprofit and 
hold themselves out to the public as being religious.
    The Board examines jurisdictional issues on a case-by-case basis, 
and the Board's jurisdiction jurisprudence is highly complex. The Board 
has asserted jurisdiction over some religiously-affiliated employers in 
the past, but has declined to assert jurisdiction over other 
religiously-affiliated employers. See, e.g., Ecclesiastical Maintenance 
Service, 320 NLRB 70 (1995), and St. Edmund's High School, 337 NLRB 
1260 (2002). In Ukiah Valley Medical Center, the Board found that 
neither the First Amendment nor the Religious Restoration Act precludes 
the Board from asserting jurisdiction over a religiously-affiliated 
employer. 332 NLRB 602 (2000). If an employer is unsure whether the 
Board has jurisdiction over its operations, it may contact the Board's 
regional office.
    In its comment, the United Stated Postal Service points out that it 
has different statutory rules from those covering other private sector 
employees. Labor relations in the Postal Service are governed by 
Chapter 12 of the Postal Reorganization Act of 1970, 39 U.S.C. 1201 et 
seq. Section 1209(a) of the Postal Reorganization Act generally makes 
the NLRA applicable to all employee-management relations ``to the 
extent not inconsistent with the provisions of this title.'' As raised 
by the comment, there are indeed several areas in which the Postal 
Reorganization Act is inconsistent with the NLRA. The principal 
differences are that an agency shop is prohibited (id. section 1209(a)) 
and that postal employees may not strike. Id. Section 
410(b)(1)(incorporating 5 U.S.C. 7311).
    In light of these differences, the Board agrees that a postal 
worker-specific notice is necessary. The Board, however, does not wish 
to create a notice without the benefit of specific public comment on 
this issue. Accordingly, the Board will exclude the United States 
Postal Service from coverage under the final rule; the Board may, at a 
later date, request comments on a postal worker-specific notice.

Subpart B--Enforcement and Complaint Procedures

    Subpart B of the rule contains procedures for enforcement of the 
employee notice-posting requirement. In crafting Subpart B, the Board 
was mindful of the need to identify an effective remedy for 
noncompliance with the notice-posting requirement. The Board gave 
careful consideration to several alternative approaches to enforcing 
the rule's notice-posting requirements. Those alternatives, not all of 
which are mutually exclusive, were (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. 75 FR 80413-80414.
    As explained in the NPRM, the Board considered but tentatively 
rejected relying solely on voluntary compliance. This option logically 
would appear to be the least conducive to an effective enforcement of 
the notice-posting requirement, 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 is that the 
notices are seldom posted. Id. at 80414. Moreover, because the notice 
is voluntary and there is no enforcement scheme, there is no remedy to 
fix the problem when the notice is not posted. The Board has found 
nothing in the comments to the NPRM that would give it reason to 
believe that voluntary compliance would be any more effective under the 
present notice rule. Therefore, the Board has decided not to rely on 
voluntary compliance. Instead the final rule provides that failing to 
post the notice may be found to be an unfair labor practice and may 
also, in appropriate circumstances, be grounds for tolling the statute 
of limitations. In addition, a knowing and willful failure to post 
employee notices may be found to be evidence of unlawful motive in an 
unfair labor practice case. (As the Board also explained in the NPRM, 
it did not consider imposing monetary fines for noncompliance, because 
the Board lacks the statutory authority to impose ``penalties or 
fines.'' See, e.g., Republic Steel Corp. v.  NLRB, 311 U.S. 7, 10-12 
(1940).) These provisions have two purposes: to ensure that any 
violations of the notice-posting requirement that occur may be remedied 
where necessary, and to describe how violations of the notice-posting 
requirement may affect other Board proceedings.\137\
---------------------------------------------------------------------------

    \137\ The tolling and animus provisions are not remedies in the 
usual sense of the term; however, these provisions inform the public 
of the impact that violations of the notice posting obligation may 
have in other NLRB proceedings. As described below, these impacts 
are not a ``punishment'' for noncompliance. To the contrary, the 
tolling provision is intended to ensure that noncompliance with the 
notice posting requirement does not prejudice innocent employees. 
And the animus provision is intended to inform the public that 
knowing and willful violations of the rule may support an inference 
of animus toward NLRA rights.
---------------------------------------------------------------------------

    The Board received several hundred comments regarding the proposed 
means of enforcing the notice posting requirement. Those that favor 
implementing the rule also favor the proposed enforcement 
mechanisms.\138\ Those opposing the rule generally oppose all three 
enforcement mechanisms.
---------------------------------------------------------------------------

    \138\ See, e.g., Harkin and Miller, National Employment Law 
Project, Public Justice Center, Inc.
---------------------------------------------------------------------------

A. Noncompliance as an Unfair Labor Practice

    The 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 may 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).''
    As it explained in the NPRM, 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.\139\ When the Board finds a violation, it will 
customarily order the employer to cease and desist and to post the 
notice of

[[Page 54032]]

employee rights as well as a remedial notice.\140\ 75 FR 80414.
---------------------------------------------------------------------------

    \139\ The Board's General Counsel has unreviewable discretion as 
to whether to issue a complaint in an unfair labor practice 
proceeding. See, e.g., Vaca v.  Sipes, 386 U.S. 171, 182 (1967). The 
General Counsel has exercised that discretion to refuse to proceed 
with meritorious charges when it would not serve the purposes of the 
Act. See General Counsel memoranda 02-08 and 95-15. This discretion 
includes dismissing any charge filed against an employer that is not 
covered by the Board's jurisdictional requirements.
    \140\ 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 comments opposing this proposal make three principal arguments. 
First, only Congress, not the Board, has the authority to ``create a 
new unfair labor practice.'' \141\ Second, even if the Board possesses 
such authority, it has not identified the Section 7 rights that would 
be interfered with by an employer's failure to post the notice.\142\ 
Third, ``interfer[ing] with, restrain[ing], or coerc[ing]'' employees 
within the meaning of NLRA Section 8(a)(1) necessarily involves action, 
not failure to act; therefore, failure to post the notice cannot 
violate Section 8(a)(1).\143\ The Board finds no merit in any of these 
contentions.
---------------------------------------------------------------------------

    \141\ See, e.g., comments of FMI, Assisted Living Federation of 
America (ALFA).
    \142\ See, e.g., comment of U. S. Chamber of Commerce.
    \143\ See, e.g., comments of Employment and Labor Law Committee, 
Association of Corporate Counsel (``ACC''); California Chamber of 
Commerce (California Chamber); and National Council of Agricultural 
Employers (NCAE).
---------------------------------------------------------------------------

    To begin with, it is incorrect to say that the Board lacks the 
authority to find that failure to post the notice violates Section 
8(a)(1) without Congressional approval. It is true, as the Society for 
Human Resource Management states, that ``Section 10(a) of the Act 
specifically limits the NLRB's powers to preventing only the unfair 
labor practices listed in Section 8 of the Act. Section 8 is silent 
regarding any notice posting requirement (emphasis in original).'' 
However, as the Supreme Court remarked long ago,

    The [NLRA] did not undertake the impossible task of specifying 
in precise and unmistakable language each incident which would 
constitute an unfair labor practice. On the contrary that Act left 
to the Board the work of applying the Act's general prohibitory 
language in the light of the infinite combinations of events which 
might be charged as violative of its terms. Thus a ``rigid scheme of 
remedies'' is avoided and administrative flexibility within 
appropriate statutory limitations obtained to accomplish the 
dominant purpose of the legislation.

Republic Aviation Corporation v. NLRB, 324 U.S. 793, 798 (1945) 
(citation omitted). Accordingly, since its creation, the Board in 
interpreting Section 8(a)(1) has found numerous actions as to which 
``Section 8 is silent''--e.g., coercively interrogating employees about 
their protected concerted activities, engaging in surveillance of 
employees' union activities, threatening employees with retaliation for 
engaging in protected activities--to violate Section 8(a)(1) by 
``interfer[ing] with, restrain[ing], or coerc[ing] employees in the 
exercise of the rights guaranteed in section 7'' of the NLRA. Section 8 
is equally silent concerning unions' duty to inform employees of their 
rights under NLRB v. General Motors, above, and Communications Workers 
v. Beck, above, before attempting to obligate them pursuant to a union-
security clause, yet the Board finds that a union's failure to provide 
that notice restrains and coerces employees in violation of Section 
8(b)(1)(A). California Saw & Knife Works, above, 320 NLRB at 233, 259, 
261.\144\
---------------------------------------------------------------------------

    \144\ See Harkin and Miller. Although the Board suggested in a 
footnote in California Saw that there was no obligation to inform 
employees of their Section 7 rights, 320 NLRB at 232 n. 42, this 
dicta merely indicated that no such obligation had yet been 
recognized in that particular context. To the extent it could be 
read as denying that such an obligation may exist, it is the 
considered view of the Board that this reading must be rejected. 
Similarly, the statement in U.S. Postal Service, 241 N.L.R.B. 141, 
152 (1979), regarding affirmative notice obligations is limited to 
Weingarten rights, and, in any event, does not suggest that notice 
of NLRA rights may never be required.
---------------------------------------------------------------------------

    Because, as described in detail above, notice posting is necessary 
to ensure effective exercise of Section 7 rights, a refusal to post the 
required notice is at least an interference with employees' exercise of 
those rights. For these reasons, in finding that an employer's failure 
to post the required notice interferes with, restrains, or coerces 
employees in the exercise of their NLRA rights, in violation of Section 
8(a)(1), the Board is acting consistently with its settled practice. 
Some comments claim that the Board has not identified any specific 
Section 7 right to justify this remedy. But such specificity is not 
needed, because all Section 7 rights are implicated by an employer's 
failure to post the required notice. As previously stated, there is a 
strong nexus between knowledge of Section 7 rights and their free 
exercise. It therefore follows that an employer's failure to post this 
notice, which informs employees of their Section 7 rights, reasonably 
tends to interfere with the exercise of such rights.
    Finally, although most violations of the NLRA involve actions 
rather than failures to act, there are instances in which a failure to 
act may be found to interfere with, restrain, or coerce employees in 
the exercise of their Section 7 rights. Thus, a union's failure to 
provide the required notices under NLRB v.  General Motors, above, and 
Communications Workers v.  Beck, above, violates Section 8(b)(1)(A) of 
the NLRA. California Saw & Knife Works, above, 320 NLRB at 233, 259, 
261. An employer that fails or refuses to execute an agreed-to 
collective-bargaining agreement on request of the union violates 
Section 8(d), 8(a)(5) and, derivatively, Section 8(a)(1). An employer 
that fails to provide relevant information requested by the union that 
represents the employer's employees violates Section 8(a)(5) and (1). 
See, e.g., NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
    The NLRA's recognition that a failure to perform a legal duty may 
constitute unlawful interference, coercion or restraint is not unique. 
Courts have expressly held that the failure to post notice required by 
regulation can be an ``interference'' with employee Family and Medical 
Leave Act rights. In a provision that ``largely mimics th[e language 
of] Sec.  8(a)(1) of the NLRA,'' Bachelder v. Am. W. Airlines, 259 F. 
3d 1112, 1123 (9th Cir. 2001), the FMLA states that ``[i]t shall be 
unlawful for any employer to interfere with, restrain, or deny the 
exercise of or the attempt to exercise, any right provided under this 
title.'' 29 U.S.C. 2615(a)(1). In interpreting this language, the 
Department of Labor's regulations specifically state that failure to 
post the required notice of FMLA rights ``may constitute an 
interference with, restraint, or denial of the exercise of an 
employee's FMLA rights'' under section 2615(a)(1). 29 CFR 825.300(e). 
Courts have agreed, finding that the failure to provide FMLA notices is 
an ``adverse action'' against the employee that supports a prima facie 
case of interference. Greenwell v. Charles Machine Works, Inc., (W.D. 
Ok. April 15, 2011); Smith v. Westchester County, (S.D.N.Y. February 
14, 2011). Accordingly, the Board finds no impediment to declaring that 
an employer's failure to post the required notice will violate Section 
8(a)(1).\145\
---------------------------------------------------------------------------

    \145\ ALFA contends that failure to post a Board-required notice 
is not an unfair labor practice, but the authorities cited do not 
support that proposition.
---------------------------------------------------------------------------

    As it explained in the NPRM, however, the Board expects that, in 
practice, few violations will be found for failures to post the notice. 
The Board anticipates that most employers that fail to post the notice 
will do so because they are unaware of the rule, and that when they 
learn about the rule, they will post the notice without the need for 
formal administrative action or litigation. 75 FR 80414. To that end, 
Sec.  104.212(a) of the rule states that if an

[[Page 54033]]

unfair labor practice charge is filed alleging failure to post the 
notice, ``the Regional Director will make reasonable efforts to 
persuade the respondent employer to post the * * * notice 
expeditiously,'' and that ``[i]f the employer does so, the Board 
expects that there will rarely be a need for further administrative 
proceedings.'' 75 FR 80419.
    Numerous comments assert that finding the failure to post the 
notice to be an unfair labor practice is too harsh a remedy, especially 
for small employers that are more likely to be excusably unaware of the 
rule.\146\ As just stated, in practice it should almost never be 
necessary for proceedings to reach that point. For the few employers 
that may ultimately be found to have violated Section 8(a)(1) by 
failing to post the notice of employee rights, the only certain 
consequences will be an order to cease and desist and that the notice 
and a remedial notice be posted; those remedies do not strike the Board 
as severe.
---------------------------------------------------------------------------

    \146\ See, e.g., comments of St Mar Enterprises, Inc. and 
National Federation of Independent Business.
---------------------------------------------------------------------------

    Michigan Health & Hospital Association urges that an employer be 
allowed to correct an initial failure to post the notice without 
further consequences; Fireside Distributors, Inc. agrees and asks that 
technical violations of the rule not be subject to a finding of a 
violation. The Heritage Foundation backs the same approach for 
inadvertent failures to post. The Board disagrees. To repeat, the Board 
anticipates that most employers that inadvertently fail to post the 
notice will do so on being informed of the posting requirement, and 
that in those circumstances further proceedings will rarely be 
required. However, the Board believes that this matter is best handled 
through the General Counsel's traditional exercise of prosecutorial 
discretion in accordance with the directions given here.
    California Chamber and NCAE contend that the Board should specify 
the ``reasonable efforts'' a Regional Director will make to persuade an 
employer to post the notice when a charge alleging a failure to post 
has been filed. They propose that the rule be amended to state that the 
Board will send the employer at least two mailed letters, with the 
notice enclosed, requesting that the employer post the notice within a 
specified period of time, preferably 30 days. They also assert that the 
Board must specify the circumstances in which additional proceedings 
will be appropriate. The Heritage Foundation urges that Sec.  
104.212(a) be modified to state that if an employer promptly posts the 
notice, ``there will be no further administrative proceedings, unless 
the Board has information giving the Board reason to believe that the 
preceding failure to do so was intentional.'' The Board rejects these 
suggestions because they would create unnecessary obstacles to 
effective enforcement of the notice requirement. That requirement is 
straightforward, and compliance should be a simple matter. The Board 
believes that the General Counsel should have discretion to address 
particular cases of non-compliance efficiently and appropriately, 
depending upon the circumstances.

B. Tolling the Section 10(b) Statute of Limitations

    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, as the Board stated in the NPRM, the 6-month filing 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 (D.C. 
Cir. 1993) (table). 75 FR 80414. This makes intuitive sense, because it 
would be unfair to expect charges to be filed before the charging party 
could reasonably have known that the law was violated. Similar concerns 
for fairness justify tolling the statute of limitations where an 
employee, although aware of the conduct in question, is excusably 
unaware that the conduct is unlawful because mandatory notice was not 
given to the employee. The Board found that widespread ignorance of 
NLRA rights justified requiring notice to be posted. The Board cited 
the observation of the U.S. Court of Appeals for the Third Circuit in a 
case involving the failure to post the notice required under the ADEA, 
that ``[t]he [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). Accordingly, the Board 
proposed that tolling the 10(b) period for filing unfair labor practice 
charges might be appropriate where the required notice has not been 
posted. 75 FR 80414. For the reasons discussed below, the Board adheres 
to that view.
    Section 10(b) is a statute of limitations, and statutes of 
limitations are presumed to include equitable tolling whenever the 
statute is silent or ambiguous on the issue. Irwin v. Dep't Veterans 
Affairs, 498 U.S. 89, 94-96 (1990); Zipes v. Trans World Airlines, 
Inc., 455 U.S. 385, 392-98 (1982); see Young v. United States, 535 U.S. 
43, 49 (2002) (``It is hornbook law that limitations periods are 
customarily subject to equitable tolling, unless tolling would be 
inconsistent with the text of the relevant statute.'' (quotations and 
citations omitted)); Hallstrom v. Tillamook County, 493 U.S. 20, 27 
(1989) (``The running of such statutes is traditionally subject to 
equitable tolling.''); Honda v. Clark, 386 U.S. 484, 501 (1967); Glus 
v. Brooklyn E.D. Terminal, 359 U.S. 231, 232-33 (1959) (equitable 
tolling of statutes of limitations is ``[d]eeply rooted in our 
jurisprudence''); Holmberg v. Armbrecht, 327 U.S. 392, 396-97 (1946) 
(equitable tolling is ``read into every federal statute of 
limitation'').
    In Zipes, the Supreme Court held that the timeliness provision of 
Title VII's charge-filing requirement was ``subject to waiver, estoppel 
and equitable tolling.'' 455 U.S. at 392-98. The Supreme Court 
expressly analogized to the NLRA, and stated that Section10(b) was not 
jurisdictional: ``[T]he time requirement for filing an unfair labor 
practice charge under the National Labor Relations Act operates as a 
statute of limitations subject to recognized equitable doctrines and 
not as a restriction of the jurisdiction of the National Labor 
Relations Board.'' Id. at n.11. Zipes strongly supports the proposed 
rule. The analogy between Title VII and the NLRA is well established, 
and neither the holding of Zipes regarding Title VII nor Zipes' 
characterization of 10(b) has ever been called into doubt.
    Notices of employment rights are intended, in part, to advise 
employees of the kinds of conduct that may violate their rights so that 
they may seek appropriate remedies when violations occur. Failure to 
post required notices deprives employees of both the knowledge of their 
rights and of the availability of avenues of redress. Accordingly, a 
substantial majority of the courts of appeals--including the First, 
Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits--
have adopted the doctrine that the failure to post required employment 
law notices may result in equitable tolling of the statute of 
limitations. Mercado v. Ritz-Carlton San Juan Hotel, 410 F.3d 41, 47-
48, 95 FEP Cases 1464 (1st Cir. 2005) (Title VII); Bonham v. Dresser 
Industries, above, 569 F.2d at 193 (ADEA); Hammer v. Cardio Medical 
Products, Inc., 131 Fed. Appx. 829, 831-832 (3d Cir. 2005) (Title VII 
and ADEA);

[[Page 54034]]

Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983) (describing 
notice posting tolling as ``the prevailing view of the courts''); 
Elliot v. Group Med. & Surgical Serv., 714 F.2d 556, 563-64 (5th Cir. 
1983); EEOC v. Kentucky State Police Dept., 80 F.3d 1086, 1096 (6th 
Cir. 1996), cert. denied 519 U.S. 963 (1996); Posey v. Skyline Corp., 
702 F.2d 102 (7th Cir. 1983); Schroeder v. Copley Newspaper, 879 F.2d 
266 (7th Cir. 1989); Kephart v. Inst. Gas Tech., 581 F.2d 1287, 1289 
(7th Cir. 1978); Beshears v. Asbill, 930 F.2d 1348 (8th Cir. 1991); 
McClinton v. Alabama By-Prods. Corp., 743 F.2d 1483 (11th Cir. 1984); 
see also 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). \147\ (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.''))
---------------------------------------------------------------------------

    \147\ See comments of Harkin and Miller, AFL-CIO, and Service 
Employees International Union (SEIU).
---------------------------------------------------------------------------

    After careful consideration, the Board is persuaded that the 
prevailing judicial view should apply in the NLRA context as well.\148\ 
As an equitable concept, equitable tolling is a matter of fairness. The 
Board has determined that many employees are unaware of their NLRA 
rights and has devised a minimally burdensome means of attempting to 
rectify that situation--requiring employers to post workplace notices 
informing employees of those rights. To bar an employee who is 
excusably unaware of the NLRA from seeking a remedy for a violation of 
NLRA rights because he or she failed to file an unfair labor practice 
charge within the 10(b) period, when the employer did not post the 
required notice, would unfairly deprive the employee of the protection 
of the Act because of the employer's failure to comply with its legal 
responsibilities. To deny equitable tolling in such circumstances 
``would grant to the employee a right to be informed without redress 
for violation.'' Bonham v. Dresser Industries, above, 569 F.2d at 
193.\149\
---------------------------------------------------------------------------

    \148\ The Board has broad discretion to interpret 10(b), 
including equitable tolling, in accordance with its experience 
administering the Act. Lodge 64, IAM v. NLRB, 949 F.2d 441, 444 
(D.C. Cir. 1991) (deferring to the Board's interpretation of 10(b) 
equitable exceptions).
    \149\ Under the final rule, the Board could also find the 
failure to post the notice to be an unfair labor practice, and 
could, if appropriate, consider a willful failure to post to be 
evidence of unlawful motive in an unfair labor practice case. 
However, in the absence of equitable tolling of the 10(b) period, 
such ``redress'' would not aid an employee who was excusably unaware 
of his or her NLRA rights, failed to file a timely charge, and thus 
was denied any remedy for violation of those rights. Cf. Kanakis 
Co., 293 NLRB 435, 436 fn. 10 (1989) (possibility of criminal 
sanctions against employer would be little comfort to charging party 
if deprived of recourse to Board's remedial processes).
---------------------------------------------------------------------------

    The Board received many comments opposing this proposed rule 
provision. Several comments assert that, when a charging party is 
unaware of the facts supporting the finding of an unfair labor 
practice, the Board tolls the 10(b) period only when the charged party 
has fraudulently concealed those facts from the charging party.\150\ 
That is not so. The Board has long held, with court approval, that the 
10(b) period begins to run only when the charging party has notice that 
the NLRA has been violated. The party asserting the 10(b) defense has 
the burden to show such notice; it may do so by showing that the 
charging party had either actual or constructive knowledge of the 
alleged unfair labor practice prior to the 10(b) period. See, e.g., 
Broadway Volkswagen, 342 NLRB 1244, 1246 (2004), enfd. sub nom. East 
Bay Automotive Council v. NLRB, 483 F.2d 628, 634 (9th Cir. 2007); 
University Moving & Storage Co., 350 NLRB 6, 7, 18 (2007); John Morrell 
& Co., above, 304 NLRB at 899; Pullman Building Company, 251 NLRB 1048 
(1980), enfd. 691 F.2d 507 (9th Cir. 1982) (table); Burgess 
Construction, 227 NLRB 765, 766 (1977), enfd. 596 F.2d 378 (9th Cir. 
1978), cert. denied 440 U.S. 940 (1979). Knowledge may be imputed if 
the charging party would have discovered the unlawful conduct by 
exercising reasonable or due diligence. Broadway Volkswagen, above, 342 
NLRB at 1246. Certainly, the Board has found it appropriate to toll the 
10(b) period when the charging party was excusably unaware of the 
pertinent facts because the charged party had fraudulently concealed 
them; see, e.g., Burgess Construction, above, 227 NLRB at 766; but 
tolling is not limited to such circumstances. Pullman Building Company, 
above, 251 NLRB at 1048.
---------------------------------------------------------------------------

    \150\ See, e.g., comments of FMI, COLLE.
---------------------------------------------------------------------------

    To the extent that the comments argue that the Board should not 
engage in equitable tolling of the 10(b) period when an employer has 
merely failed to post the notice but not engaged in fraudulent 
concealment,\151\ the Board disagrees. Fraudulent concealment concerns 
a different kind of equitable doctrine, and is not directly relevant to 
the notice posting equitable tolling doctrine hereby adopted. See 
Mercado, above, 410 F.3d at 46-47 n.8 (employer misconduct and 
equitable tolling doctrine form ``two distinct lines of cases 
apply[ing] two distinct standards to two distinct bases for equitable 
tolling'').
---------------------------------------------------------------------------

    \151\ See, e.g., comments of FMI, COLLE.
---------------------------------------------------------------------------

    Some comments argue that because Section 10(b) contains a limited 
exception to the 6-month filing period for employees in the military, 
it is improper for the Board to toll the 10(b) period under other 
circumstances.\152\ The Board rejects this argument as foreclosed by 
the Supreme Court's holding in Zipes, above, and by the long line of 
Board and court decisions finding tolling of the 10(b) period 
appropriate. In any event, the exception in Section 10(b) for persons 
in the military provides that if the aggrieved person ``was prevented 
from filing such charge by reason of service in the armed forces, in 
which event the six-month period shall be computed from the day of his 
discharge.'' This provision does not toll the six-month period during 
armed service; rather, it states that the six-month period begins at 
discharge. See Holland v. Florida, 130 S.Ct. 2549, 2561 (2010) 
(rejecting argument that explicit exceptions to time limits in 
nonjurisdictional statute of limitations precluded equitable 
tolling).\153\
---------------------------------------------------------------------------

    \152\ See, e.g., comments of California Chamber and NCAE.
    \153\ American Bus Association v. Slater, 231 F. 3d 1 (D.C. Cir. 
2000), cited by California Chamber and NCAE, did not concern 
equitable tolling and is therefore inapposite. The court there also 
found that Congress had expressly limited the sanctions available 
under the Americans with Disabilities Act to those enumerated in 
that statute; such is not the case under the NLRA.
---------------------------------------------------------------------------

    A number of comments contend that tolling the 10(b) period is 
contrary to the salutary purpose of statutes of limitations in general, 
and 10(b) in particular, which is ``to require diligent prosecution of 
known claims, thereby providing finality and predictability in legal 
affairs and ensuring that claims will be resolved while evidence is 
reasonably available and fresh.'' \154\ Black's Law Dictionary, 9th 
Edition, at 1546. The Board recognizes that with the passage of time 
evidence can be lost and witnesses die, move away, or their memories 
fade; it therefore will not lightly find that the 10(b) period should 
be tolled. However, like the courts whose decisions are cited above, 
the Board also recognizes that equitable tolling is a fundamental part 
of the statute of limitations, and that inequity results from barring 
an individual from seeking relief from a violation of his or her NLRA 
rights where the individual excusably was unaware of these rights. 
After all, the purpose of a statute of limitations is to ``require 
diligent

[[Page 54035]]

prosecution of known claims,'' not claims that are unknown to the 
injured party. As to concerns that the statute of limitations could be 
tolled for years, ``perhaps indefinitely,'' \155\ the Board responds 
that such a potential also exists under other statutes, as well as 
under the NLRA when a charging party is unaware of the facts giving 
rise to an alleged unfair labor practice. However, at this point, 
concerns about the unfairness of lengthy tolling periods are entirely 
speculative. Tolling is an equitable matter, and one factor to be 
considered in deciding whether equitable tolling is appropriate is 
whether it would prejudice the respondent. Mercado, above, 410 F.3d at 
48. Accordingly, if a lengthy tolling of the 10(b) period would 
prejudice an employer in a given case, the Board could properly 
consider that factor in determining whether tolling was appropriate in 
that case.\156\
---------------------------------------------------------------------------

    \154\ See, e.g., comments of FMI, COLLE, and U.S. Chamber of 
Commerce.
    \155\ See comments of Fisher & Phillips LLC and National Grocers 
Association.
    \156\ As to ACC's concern that the rule could potentially 
subject employers to unfair labor practice charges based on conduct 
as far back as 1935, the Board stresses that tolling will be 
available only in the case of unlawful conduct that occurs after the 
rule takes effect.
---------------------------------------------------------------------------

    Several comments argue against tolling the 10(b) period because 
``ignorance of the law is no excuse.'' \157\ This argument is amply 
refuted by the court decisions cited above, in which limitations 
periods under other workplace statutes were tolled because employers 
failed to post required notices. Most notably, the Fifth Circuit has 
emphasized that the failure to post a required notice ``vitiates the 
normal assumption that an employee is aware of his rights.'' Elliot v. 
Group Med. & Surgical Serv., 714 F.2d 556, 563-64 (5th Cir. 1983). In 
any event, the maxim relied on is generally understood to have arisen 
in order to prevent individuals (usually in criminal cases) from 
deliberately failing to ascertain whether actions they contemplate 
taking would be lawful, and then pleading ignorance when accused of 
lawbreaking.\158\ In the Board's view, this reasoning loses much of its 
force when applied to individuals, such as charging parties in unfair 
labor practice cases, who are not accused of any wrongdoing but who 
claim to have been injured by the unlawful actions of other parties.
---------------------------------------------------------------------------

    \157\ See, e.g., comments of Coalition for a Democratic 
Workplace and COLLE.
    \158\ Moreover, even in criminal law, the principle is not 
absolute. See, e.g., Lambert v. California, 355 U.S. 225 (1957).
---------------------------------------------------------------------------

    The Board emphasizes, however, that failure to post the required 
notice will not automatically warrant a tolling remedy. If an employer 
proves that an employee had actual or constructive knowledge of the 
conduct alleged to be unlawful, as well as actual or constructive 
knowledge that the conduct violated the NLRA, and yet failed to timely 
file an unfair labor practice charge, the Board will not toll the 10(b) 
period merely because of the employer's failure to post the notice. Cf. 
John Morrell & Co., above, 304 NLRB at 899.
    The Board asked for comments concerning whether unions filing 
unfair labor practice charges should be deemed to have constructive 
knowledge of the unlawful character of the conduct at issue. All of the 
comments that addressed this issue answered in the affirmative.\159\ 
Unlike most employees, unions routinely deal with issues arising under 
the NLRA and are therefore more familiar with the Act's provisions. 
Accordingly, the tolling provisions in the final rule apply only to 
charges filed by employees, not those filed by unions. (The Board still 
could toll the 10(b) period if a charging party union did not discover 
the facts underlying the charge within six months, if the employees 
reporting those events failed to alert the union within that time 
because they were excusably unaware of their NLRA rights.)
---------------------------------------------------------------------------

    \159\ See, e.g., comments of U.S. Chamber of Commerce, American 
Trucking Associations, Taft Stettinius & Hollister LLP.
---------------------------------------------------------------------------

    Several comments contend that failure to post the required notice 
should not toll the 10(b) period if an employee who files an unfair 
labor practice charge is either a union member or is represented by a 
union. Taft Stettinius & Hollister LLP asserts that the burden should 
be placed equally on unions to ensure that their organizers and members 
are aware of employee rights under the NLRA. California Chamber and 
NCAE observe that knowledge of a filing time limit is generally imputed 
to an individual who is represented by an attorney, see, e.g., Mercado 
v. Ritz-Carlton San Juan Hotel, above, 410 F.3d at 47-48; they urge 
that an employee who is represented by a union should be treated 
similarly. Conversely, three Georgetown University law students oppose 
the idea that union-represented employees should be deemed to have 
constructive knowledge of NLRA rights. They reason that some workplaces 
may have unrepresented as well as represented employees, and that 
imputing knowledge to the latter group would provide an incentive not 
to post the notice, thus depriving the former group of needed 
information. The students also suggest that some employees, though 
represented, may have little contact with their unions and rely on 
workplace notices instead of unions for relevant information.
    The Board finds some merit in both sets of contentions. On the one 
hand, it is reasonable to assume that employees who are represented by 
unions are more likely to be aware of their NLRA rights than 
unrepresented employees. And, although being represented by a union is 
not the same as being represented by legal counsel, it is reasonable to 
assume that union officials are sufficiently conversant with the NLRA 
to be able to give employees effective advice as to their NLRA rights. 
On the other hand, some employees, though represented by unions, may in 
fact have little contact with their bargaining representatives for one 
reason or other and may, in fact, be filing charges against their 
representative. Thus, the Board does not find it appropriate under all 
circumstances to impute knowledge of NLRA rights to charge-filing 
employees who are union members or are represented by unions. Rather, 
the Board will consider evidence concerning the union's 
representational presence and activity in determining whether it is 
appropriate to toll the 10(b) period.

C. Failure To Post as Evidence of Unlawful Motive

    The Board suggested that it could consider an employer's knowing 
failure to post the notice as evidence of unlawful motive in an unfair 
labor practice proceeding in which motive is an issue. 75 FR 80414-
80415. A number of comments assert that the Board cannot properly take 
that step.\160\ To the contrary, the Board has often considered other 
unlawful conduct as evidence of antiunion animus in cases in which 
unlawful motive was an element of an unfair labor practice.\161\ See, 
e.g., Leiser Construction, LLC, 349 NLRB 413, 417-419 (2007) (threats, 
coercive statements, interrogations evidence of unlawfully motivated 
failure to hire), enfd. 281 Fed. Appx. 781 (10th Cir. 2008) 
(unpublished); Shearer's Foods, 340 NLRB 1093, 1094 (2003) (plant 
closing threat evidence of unlawfully motivated discharge); Ferguson-
Williams, Inc., 322 NLRB 695, 703, 707 (1996) (threats, interrogations, 
creation of impression of surveillance, evidence of unlawfully 
motivated discharge); Champion Rivet Co., 314 NLRB 1097, 1098 (1994) 
(circulating unlawful antiunion petition,

[[Page 54036]]

refusal to recognize and bargain with union, evidence of unlawfully 
motivated failure to hire). Thus, it is proper for the Board to 
consider a knowing and willful failure to post the notice as evidence 
of unlawful motive.
---------------------------------------------------------------------------

    \160\ See, e.g., comments of COLLE and California Chamber.
    \161\ See comment of AFL-CIO.
---------------------------------------------------------------------------

    However, the Board has noticed that it employed somewhat 
inconsistent language in the NPRM regarding the consideration of 
failure to post the notice as evidence of antiunion animus. Thus, the 
caption of paragraph 104.214(b) reads: ``Knowing noncompliance as 
evidence of unlawful motive.'' However, the paragraph itself states 
that ``If an employer has actual or constructive knowledge of the 
requirement to post the 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.'' (Emphasis added in both cases.) 75 
FR at 80420. In the preamble to the NPRM, the Board referred only to 
knowing noncompliance as evidence of unlawful motive. 75 FR at 80414-
80415. On reflection, the Board wishes to clarify this provision to 
state that, to be considered as evidence of unlawful motive, an 
employer's failure to post the notice must be both knowing and 
willful--i.e., the employer must have actual (as opposed to 
constructive) knowledge of the rule and yet refuse, on no cognizable 
basis, to post the notice. The Board is revising the language of the 
rule accordingly.
    The comment that prompted these revisions urges that there should 
be no adverse consequences for the employer that does not post the 
notice because it has a good-faith (but, implicitly, erroneous) belief 
that it is not covered by the NLRA.\162\ The Board rejects this 
contention as it pertains to finding the failure to post to be an 
unfair labor practice or grounds for tolling the 10(b) period. Failure 
to post the notice interferes with employees' NLRA rights regardless of 
the reason for the failure; good faith, though commendable, is 
irrelevant.\163\ Additionally, tolling is concerned with fairness to 
the employee, and these fairness concerns are unaffected by the 
employer's good or bad faith; as previously noted, notice posting 
tolling is fundamentally different from tolling based upon employer 
misconduct. However, an employer that fails to post the notice only 
because it honestly but erroneously believes that it is not subject to 
the NLRB's jurisdiction does not thereby indicate that it is hostile to 
employees' NLRA rights, but only that it believes that those rights do 
not apply in the employer's workplace. In such a case, the employer's 
good faith normally should preclude finding the failure to post to be 
willful or evidence of antiunion animus.
---------------------------------------------------------------------------

    \162\ One example could be an employer that believes that it is 
subject to the Railway Labor Act and not to the NLRA.
    \163\ This is so in other areas of NLRA law. For example, an 
employer who coercively interrogates or disciplines an individual 
concerning his or her union activities violates the NLRA if the 
individual is a statutory employee, even though the employer may 
have honestly believed that the individual was a statutory 
supervisor and not protected by the NLRA. Also, absent compelling 
economic circumstances, an employer that is testing the Board's 
certification of a newly-selected union in the court of appeals 
makes unilateral changes in unit employees' terms and conditions of 
employment at its peril; if the court affirms the certification, the 
unilateral changes violate NLRA Section 8(a)(5) even if the employer 
believed in good faith that the certification was inappropriate. 
Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on 
other grounds 512 F.2d 684 (8th Cir. 1975).
---------------------------------------------------------------------------

    ACC contends that even though the rule states that only a 
``willful'' failure to post the notice may be considered evidence of 
unlawful motive, in practice the Board will always infer at least 
constructive notice from the publication of the rule in the Federal 
Register and the maxim that ``ignorance of the law is no excuse.'' 
\164\ The Board rejects this contention. The quoted maxim means only 
that an employer's actual lack of knowledge of the rule would not 
excuse its failure to post the notice. It would, however, undercut any 
suggestion that the failure to post was willful and therefore 
indicative of unlawful motive.
---------------------------------------------------------------------------

    \164\ See also comment of American Health Care Association 
(AHCA).
---------------------------------------------------------------------------

    Contrary to numerous comments,\165\ finding a willful failure to 
post the notice as evidence of animus is not the same as adopting a 
``presumption of animus'' or ``presumption of unlawful motive.'' There 
is no such presumption. The Board's general counsel would have the 
burden of proving that a failure to post was willful. In any event, a 
willful failure to post would not be conclusive proof of unlawful 
motive, but merely evidence that could be considered, along with other 
evidence, in determining whether the general counsel had demonstrated 
unlawful motive.\166\ Likewise, contrary to the contentions of ALFA and 
AHCA, the Board will not assume that any failure to post the notice is 
intentional and meant to prevent employees of learning their rights.
---------------------------------------------------------------------------

    \165\ See, e.g., comments of FMI and COLLE.
    \166\ The Georgetown law students ask whether, if failure to 
post the notice may be found to be an unfair labor practice and also 
may be considered evidence of antiunion animus, such a failure could 
``satisfy an element of its own violation.'' The answer is no, 
because the failure to post, whether knowing or inadvertent, would 
be an unfair labor practice regardless of motive; knowing and 
willful failure to post would be relevant only in cases such as 
those alleging unlawful discipline, discharge, or refusal to hire, 
in which motive is an element of the violation.
---------------------------------------------------------------------------

D. Other Comments

    The Board received many comments asserting that if the proposed 
enforcement scheme for failure to post the required notice is adopted, 
union adherents will tear down the notices in order to harass employers 
and, particularly, to vitiate 10(b).\167\ These comments express the 
concern that tolling the 10(b) period will lead to a flood of unfair 
labor practice charges, and that, to avoid that eventuality, employers 
will have to incur significant costs of policing the postings and/or 
installing expensive tamper-proof bulletin boards.\168\ In the absence 
of experience with such postings, the Board deems these concerns 
speculative at this time. If particular employers experience such 
difficulties, the Board will deal with them on a case-by-case basis. 
However, as explained above, tolling is an equitable matter, and if an 
employer has posted the notice and taken reasonable steps to insure 
that it remains posted, it is unlikely that the Board would find 
tolling appropriate.
---------------------------------------------------------------------------

    \167\ See, e.g., comments of Lemon Grove Care & Rehabilitation, 
numerous ``postcard'' comments.
    \168\ One comment asserts that because of the potential for 
tolling the 10(b) period, ``businesses * * * will have to keep 
records forever[.]'' The Board finds no merit in this contention. 
Employers that are aware of the rule can avoid keeping records 
``forever'' simply by posting the notice. Employers that are not 
aware of the requirement to post the notice would also be unaware of 
the possibility of tolling the 10(b) period in the event of a 
failure to post, and thus would discern no reason to--and probably 
would not--keep records ``forever.'' Prejudice to the employer 
because of long-lost records would be considered by the Board in 
determining whether tolling is appropriate in the particular case.
    Another comment complains that ``the requirement of proof on the 
employer to `certify' that this posting is up each day is 
burdensome[.]'' There is no such requirement.
---------------------------------------------------------------------------

    California Chamber and NCAE ask the Board to specify the 
``additional remedies'' that may be imposed in the event of a notice 
posting violation. 104.213(a). The Board has broad discretion in 
crafting remedies for violations of the NLRA. NLRB v. Seven-Up Bottling 
Co. of Miami, 344 U.S. 344, 346 (1953). The remedies imposed in a given 
case depend on the nature of the violations and the particular facts in 
the case. The Board declines to speculate as to every possible remedy 
that might be imposed in every imaginable set of circumstances.
    Several comments protest that employers could be fined for failing 
to post the notice; several others contend that the Board should levy 
fines instead of imposing the proposed remedies. The

[[Page 54037]]

Board rejects both contentions because, as explained in the NPRM, the 
Board does not have the authority to impose fines. 75 FR 80414, citing 
Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-12 (1940). Another comment 
argues that the Board should not provide remedies for failing to post 
the notice because such remedies are not provided under other statutes. 
In fact, both remedies and sanctions are imposed under some statutes; 
see, e.g., 29 CFR 1601.30 (fine of $110 per offense for failing to post 
notice under Title VII); 29 CFR 825.300(a)(1) (same sanction for 
failing to post notice under FMLA); cases cited above for tolling of 
limitation periods for failing to post notices under several statutes.
    One comment contends that the proposed remedies were proposed 
solely as means of deterring failures to post the notices, and are 
therefore inappropriate; several other comments assert that the 
proposed remedies are punitive.\169\ Although the Board disagrees, 
there is language in the NPRM that may have inadvertently suggested 
that the enforcement mechanisms were proposed solely for deterrent 
purposes. The Board wishes to correct any such misimpression. As stated 
above, in explaining why it was proposing those mechanisms, the Board 
stated in its NPRM that it was ``mindful of the need to identify 
effective incentives for compliance.'' 75 FR 80413. Later, referring to 
tolling the 10(b) period and considering a willful failure to post the 
notice as evidence of unlawful motive, the Board said that it 
``proposes the following options intended to induce compliance with the 
notice-posting requirement.'' Id. at 80414. However, the Board made 
those statements while explaining why it had determined not to rely 
entirely on employers' voluntary compliance with the rule. (The Board 
had had little success in persuading employers to voluntarily post 
notices of employee rights during the critical period leading up to a 
representation election.) Id. By noting that the proposed enforcement 
scheme would have some deterrent effect in that context, the Board did 
not mean to imply that it was proposing those measures solely for 
deterrence purposes. For the reasons discussed at length above, the 
Board has found that finding a failure to post the notices to violate 
Section 8(a)(1) and, in appropriate circumstances, to warrant tolling 
the 10(b) period and/or inferring unlawful motive in an unfair labor 
practice case are legitimate remedial measures supported by extensive 
Board and court precedent.
---------------------------------------------------------------------------

    \169\ See, e.g., comments of FMI, ALFA, AHCA.
---------------------------------------------------------------------------

    In addition, in a number of places the NPRM used the term 
``sanctions'' in a very loose sense to refer to aspects of the proposed 
enforcement scheme, inadvertently suggesting that this scheme was 
punitive. The term ``sanctions'' was an inapt choice of descriptor for 
the enforcement scheme: the classic 8(a)(1) remedial order has long 
been upheld as nonpunitive; equitable tolling is concerned with 
fairness to employees, not punishment of misconduct, and is fully 
consistent with current Board doctrine; and the animus provision is 
little more than the common-sense extension of well-established 
evidentiary principles that apply to many other NLRA violations, and is 
also not designed to punish employers. That they may also furnish 
incentives for employers to comply with the notice-posting rule does 
not detract from their legitimacy; if it were otherwise, the Board 
could never impose any remedy for violations of the NLRA if the remedy 
had a deterrent effect. In any event, the Board hereby disavows any 
suggestion from statements in the NPRM that the remedial measures were 
proposed solely as penalties.
    Contrary to the tenor of numerous comments opposing this rule,\170\ 
the Board is not issuing the rule in order to entrap unwary employers 
and make operations more difficult for them because of inadvertent or 
technical violations. It is doing so in order that employees may come 
to understand their NLRA rights through exposure to notices posted in 
their workplaces explaining those rights. Accordingly, the important 
thing is that the notices be posted. As explained above, an employer 
that fails to post the notice because it is unaware of the rule, but 
promptly posts the notice when the rule is brought to its attention, 
will nearly always avoid any further proceedings. Similarly, an 
employer that posts the notice but fails initially to comply with one 
of the technical posting requirements will almost always avoid further 
problems by correcting the error when it is called to the employer's 
attention. And if an employer is unsure of what the rule requires in a 
particular setting, it can seek and receive guidance from the Board.
---------------------------------------------------------------------------

    \170\ For example, ``This seems to be yet another trap for the 
employers. Another avenue to subject them to law suits and 
interrogations, and uneconomic activities and ungodly 
expenditures.''
---------------------------------------------------------------------------

    The Service Employees International Union and the United Food and 
Commercial Workers propose that, in addition to the proposed 
enforcement scheme, the rule state that an employer's knowing failure 
to post the notice of employee rights during the critical period before 
a representation election shall be grounds for setting the election 
aside on the filing of proper objections. The Board finds that this is 
unnecessary, because the Board's notice of election, which must be 
posted by an employer three working days before an election takes 
place, contains a summary of employee NLRA rights and a list of several 
kinds of unfair labor practices, and failure to post that notice 
already constitutes grounds for setting an election aside.\171\ In any 
event, during a union organizing campaign, the union can instruct 
members of its in-plant organizing committee to verify whether the 
notice required under this rule has been posted; if it has not, the 
union can so inform the employer and, if need be, the Board's regional 
office.
---------------------------------------------------------------------------

    \171\ See Section 103.20 of the Board's Rules and Regulations.
---------------------------------------------------------------------------

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

    ``Agencies may play the sorcerer's apprentice but not the sorcerer 
himself.'' \172\
---------------------------------------------------------------------------

    \172\ Alexander v. Sandoval, 532 U.S. 275, 291 (2001).
---------------------------------------------------------------------------

    Today, my colleagues conjure up a new unfair labor practice based 
on a new statutory obligation. They impose on as many as six million 
private employers the obligation to post a notice of employee rights 
and selected illustrative unfair labor practices. The obligation to 
post is deemed enforceable through Section 8(a)(1)'s proscription of 
interference with employees' Section 7 rights, and the failure to post 
is further penalized by equitable tolling of Section 10(b)'s 
limitations period and the possible inference of discriminatory 
motivation for adverse employment actions taken in the absence of 
posting. While the need for a more informed constituency might be a 
desirable goal, it is attainable only with Congressional imprimatur. 
The Board's rulemaking authority, broad as it is, does not encompass 
the authority to promulgate a rule of this kind. Even if it did, the 
action taken here is arbitrary and capricious, and therefore invalid, 
because it is not based on substantial evidence and it lacks a reasoned 
analysis.

[[Page 54038]]

No Statutory Authority for the Proposed Rule

    The majority concedes that the ``National Labor Relations Act does 
not directly address an employer's obligation to post a notice of its 
employees' rights arising under the Act or the consequences an employer 
may face for failing to do so.'' In fact, the NLRA \173\ makes no 
mention of any such putative obligation. The majority further 
acknowledges that 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.'' Despite the obvious import of 
these admissions, the majority concludes that the Board's plenary 
authority under Section 6 of the Act to make rules ``necessary to carry 
out the provisions of the Act'' permits promulgation of the rule they 
advocate. I disagree.
---------------------------------------------------------------------------

    \173\ Throughout this dissent, I will refer generally to the 
statute we administer as the NLRA, unless the discussion focuses on 
a specific historical version, such as the Wagner Act.
---------------------------------------------------------------------------

    Congress did not give specific statutory authority to the Board to 
require the posting of a general rights notice when it passed the 
Wagner Act in 1935. Just one year earlier, however, Congress amended 
the Railway Labor Act (``RLA'') to include an express notice-posting 
requirement. 45 U.S.C. 152 Eighth; Pub. L. No. 73-442, 48 Stat. 1185, 
1188 (1934). As the Supreme Court noted, the RLA served as the model 
for the National Labor Relations Act. NLRB v. Pennsylvania Greyhound 
Lines, 303 U.S. 261 (1938). See also NLRB v. Jones & Laughlin Steel 
Corp., 301 U.S. 1, 44 (1937); H. J. Heinz Co. v. NLRB, 311 U.S. 514, 
524-525(1941).
    That Congress did not include an express notice-posting requirement 
when passing the Wagner Act the following year strongly implies, if not 
compels, the conclusion that Congress did not intend for the Board to 
have regulatory authority to require such a notice. Nothing in the 
legislative history hints of any concern by Congress about the need for 
employers to notify employees generally of their rights under the new 
enacting statute. Since 1935, despite extensive revisions in the Taft-
Hartley Act amendments of 1947 and the Landrum-Griffin Act amendments 
of 1959, Congress has never added such authority.
    On the other hand, when Congress has subsequently desired to 
include a general rights notice-posting requirement, it has done so 
expressly in other federal labor and employment laws. See Title VII of 
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e-10, the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 627, The 
Occupational Safety and Health Act, 29 U.S.C. 657(c), the Americans 
with Disabilities Act (ADA), 42 U.S.C. 12115, the Family and Medical 
Leave Act (FMLA), 29 U.S.C. 2619(a), and the Uniformed Service 
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4334(a).
    The majority points out that the Department of Labor (DOL) 
promulgated a notice-posting rule under the Fair Labor Standards Act 
(FLSA), although that statute does not contain a specific statutory 
provision on workplace postings. However, the FLSA, unlike the NLRA, 
imposes a data-collection and recordkeeping requirement on employers. 
29 U.S.C. 211(c). DOL's Wage and Hour Administrator promulgated the 
notice-posting regulation in 1949 in reliance on this requirement. It 
appears that the propriety of the FLSA rule has never been challenged, 
perhaps because, unlike the rule promulgated herein, there are no 
citations or penalties assessed for the failure to post. This is a 
significant point of distinction that warrants further discussion.
    It must be constantly borne in mind that the rule promulgated today 
makes the failure to post the required notice a violation of the Act. 
The majority misleadingly seeks to decouple obligation from violation 
in its analysis by discussing the latter in the context of enforcement 
of the assertedly lawful notice-posting rule. That is nonsense. Making 
noncompliance an unfair labor practice is integral to the rule and, 
consequently, integral to an analysis of whether the notice-posting 
requirement is a permissible exercise of the Board's rulemaking 
authority. Of the aforementioned agencies that have notice-posting 
requirements, none of them makes the failure to post unlawful, absent 
additional specific statutory authorization. Only the RLA, Title VII, 
FMLA, and the Occupational Safety Act (OSHA) have such authorizing 
language. ADA, the ADEA, the FLSA, and the USERRA do not. Consequently, 
an employer's failure to post a notice under those statutes is not 
subject to sanction as unlawful.
    Thus, both before and after the Wagner Act, Congress has 
consistently manifested by express statutory language its intent to 
impose a general notice-posting duty on employers with respect to the 
rights of employees under various federal labor laws. Only one 
administrative agency promulgated a notice-posting requirement in the 
absence of such language in its enabling statute. No agency has made 
the failure to comply with a notice-posting requirement unlawful absent 
express statutory authorization, until today.
    The explicit inclusion of notice-posting provisions and permissible 
sanctions by Congress in other labor legislation undercuts the 
majority's claim that this notice-posting rule is not a ``major policy 
decision properly made by Congress alone.'' Strangely, the majority 
does not merely contend that this pattern in comparable labor 
legislation fails to prove that Congress did not intend that the Board 
should have the rulemaking authority under Section 6 to mandate the 
notice posting at issue here. They conversely contend that it proves 
Congress must have intended to confer such authority on the Board! 
\174\
---------------------------------------------------------------------------

    \174\ Of course, this reasoning would seem to dictate that the 
failure of the Board to inform its own employees of their general 
rights under the Federal Labor Relations Act is an unfair labor 
practice, even though that statute imposes no such express 
requirement. To date, I am not aware that this agency, or any other, 
views itself as subject to such an enforceable obligation.
---------------------------------------------------------------------------

    Perhaps cognizant of the weakness of this position, the majority 
attempts to downplay the import of Congressional silence on the Board's 
authority to mandate notice posting and to enforce that mandate through 
unfair labor practice sanctions. They cite Cheney R.R. Co. v. ICC, 902 
F. 2d 66, 68-69 (D.C. Cir. 1990), for the proposition that the maxim 
``expressio unius est exclusio alterius,'' which holds that the special 
mention of one thing indicates an intent for another thing not be 
included elsewhere, may not always be a useful tool for interpreting 
the intent of Congress. Obviously, the usefulness of this tool depends 
on the context of a particular statute. Independent Ins. Agents of Am., 
Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) (applying the maxim). In 
my view, the absence of an express notice provision in the NLRA, and 
the failure to amend the Act to include one when Congress expressly 
included notice posting provisions in other labor statutes, shows that 
it did not intend to authorize the Board to promulgate this rule.\175\
---------------------------------------------------------------------------

    \175\ The majority contends that the fact that the rule comes 76 
years after the NLRA was enacted is not a ``condition of validity.'' 
Mayo Foundation for Medical Education and Research v. United States, 
131 S.Ct. 704, 713-14 (2011) (quoting Smiley v. Citibank (S.D.), 
N.A., 517 U.S. 735, 740 (1996) (``neither antiquity nor 
contemporaneity with the statute is a condition of validity.''). I 
have no problem with that proposition, but if the Board lacks 
statutory authority to promulgate a rule, it is of no matter that it 
attempts to do so in year 1 or year 76 of its existence.
---------------------------------------------------------------------------

    Arguing to the contrary, the majority asserts that the notice-
posting rule is

[[Page 54039]]

entitled to deference under the analysis set forth in Chevron U.S.A. 
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 
Under Chevron, where Congress has not ``directly addressed the precise 
question at issue,'' id. at 842-843, that rulemaking authority may be 
used in order ``to fill any gap left, implicitly or explicitly, by 
Congress.'' Id. at 843.
    Even assuming that the absence of an explicit posting requirement 
in the NLRA is not interpreted as clear expression of Congressional 
intent, the majority fails to persuade that Congress delegated 
authority in Section 6 of the NLRA for the Board to fill a putative 
statutory gap by promulgating a rule that an employer commits an unfair 
labor practice by failing to affirmative notify its employees of their 
rights under the NLRA. As the Supreme Court has explained, ``the 
ultimate question is whether Congress would have intended, and 
expected, courts to treat [the regulation] as within, or outside, its 
delegation to the agency of `gap-filling' authority.'' Long Island Care 
at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007).
    There is no doubt that there are many gaps and ambiguities in the 
NLRA that Congress intended for the Board to address, using its labor 
expertise, either through adjudication or rulemaking. However, the 
existence of ambiguity in a statute is not enough per se to warrant 
deference to the agency's interpretation of its authority in every 
respect. The ambiguity must be such as to make it appear that Congress 
either explicitly or implicitly delegated authority to cure that 
ambiguity. Am. Bar Ass'n v. FTC, 430 F.3d 457, 469 (D.C. Cir. 2005); 
Motion Picture Ass'n of America, Inc. v. FCC, 309 F. 3d 796, 801 (D.C. 
Cir. 2002) (``MPAA '') (``agency's interpretation of [a] statute is not 
entitled to deference absent a delegation of authority from Congress to 
regulate in the areas at issue.'').
    Thus, even when an administrative agency seeks to address what it 
believes is a serious interpretive problem, the Supreme Court has said 
that the agency ``may not exercise its authority `in a manner that is 
inconsistent with the administrative structure that Congress enacted 
into law.' '' FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 
125(2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 
517(1988)). Further, the statute at issue must be considered as a 
``symmetrical and coherent regulatory scheme.'' Gustafson v. Alloyd 
Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). In our 
case, the exercise of rulemaking authority under Section 6 is not self-
effectuating; it must be shown to relate reasonably to some other 
provision as part of the overall statutory scheme contemplated by 
Congress.\176\
---------------------------------------------------------------------------

    \176\ See, e.g., Mourning v. Family Publications Service, Inc., 
411 U.S. 356, (1973) Unlike here, the Federal Reserve Board easily 
met this standard in Mourning when issuing a disclosure regulation 
under the Truth in Lending Act, even though that Act did not 
explicitly require lenders to make such disclosures. In sustaining 
the regulation, the Court found the regulation to be within the 
Federal Reserve's rulemaking authority and, in light of the 
legislative history, the disclosure requirement was not contrary to 
the statute. ``The crucial distinction, * * * [was that] the 
disclosure requirement was in fact enforced through the statute's 
pre-existing remedial scheme and in a manner consistent with it.'' 
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94 (2002).
---------------------------------------------------------------------------

    Nothing in the text or the regulatory structure of the NLRA 
suggests that the Board has the authority to promulgate the notice-
posting rule at issue in order to address a gap in the statutory scheme 
for resolving questions concerning representation through Section 9, or 
in preventing, through Sections 8 and 10, specifically enumerated 
unfair labor practices that adversely affect employees' Section 7 
rights. On the contrary, it is well-established that the Board lacks 
independent authority to initiate or to solicit the initiation of 
representation and unfair labor practice proceedings, and Section 10(a) 
limits the Board's powers to preventing only the unfair labor practices 
listed in Section 8 of the Act. Yet the majority asserts that it may 
exceed these limitations by requiring employers to post a notice of 
employee rights and illustrative unfair labor practices at all times, 
regardless of whether a petition had been filed or an employer has been 
found to have committed an unfair labor practice.
    The majority's reliance on a combination of Section 7, 8, and 10 
warrants special mention. They reason that an employer interferes with 
Section 7 rights in general, and thereby violates Section 8(a)(1), by 
failing to give continuous notice to employees of those rights. It may 
be a truism that an employee must be aware of his rights in order to 
exercise them, but it does not follow that it is the employer under our 
statutory scheme who must provide enlightenment or else incur liability 
for violating those rights. The new unfair labor practice created by 
the rule bears no reasonable relation to any unfair labor practice in 
the NLRA's pre-existing enforcement scheme developed over seven 
decades.\177\ It certainly bears no relation to the few examples the 
majority can muster in Board precedent. The only instance with even a 
passing resemblance to the rights notice-posting requirement here is 
the requirement that a union give notice of Beck \178\ and General 
Motors \179\ rights. However, the failure to give such a notice is not 
per se unlawful. It becomes an unfair labor practice only when a union, 
without giving notice, takes the affirmative action of seeking to 
obligate an employee to pay fees and dues under a union-security 
clause.\180\ Beyond that, a union has no general obligation to give 
employees notice of their Beck and General Motors rights; much less 
does it violate the NLRA by failing to do so. By contrast, the rule 
promulgated today imposes a continuing obligation on employers to post 
notice of employees' general rights and, even absent any affirmative 
act involving those rights, makes the failure to maintain such notice 
unlawful.\181\
---------------------------------------------------------------------------

    \177\ The Senate report on the Wagner bill stressed that unfair 
labor practices were ``strictly limited to those enumerated in 
section 8. This is made clear by paragraph 8 of section 2, which 
provides that `The term `unfair labor practice' means unfair labor 
practice listed in Section 8,'' and by Section 10(a) empowering the 
Board to prevent any unfair labor practice ``listed in Section 8.'' 
Thus, ``[n]either the National Labor Relations Board nor the courts 
are given any blanket authority to prohibit whatever labor practices 
that in their judgment are deemed to be unfair.'' S. Rep. No. 573, 
74th Cong., 1st Sess. 17 (1935) at 8-9 reprinted in Legislative 
History of the National Labor Relations Act of 1935, Vol. II at 
2307-2308 (1985).
    \178\ Communications Workers v. Beck, 487 U.S. 735 (1988).
    \179\ NLRB v. General Motors, 373 U.S. 734 (1963).
    \180\ California Saw & Knife Works, 320 NLRB 224, 233 (1995).
    \181\ None of the FMLA cases cited by the majority support 
finding that a failure to post a general notice of employee rights 
under the NLRA is unlawful. In Bachelder, the Ninth Circuit actually 
found ``unavailing'' the employer's argument that it had satisfied 
all its specific FMLA notice obligations because it had complied 
with the FMLA's general posting rule. Id. at 1127, fn. 5. Rather, 
the court found that because the employer failed to ``notify'' an 
employee which of the four FMLA's ``leave year'' calculation methods 
it had chosen, the employer ``interfered'' with that employee's 
rights and, therefore, improperly used the employee's FMLA covered 
absences as a ``negative factor'' when taking the affirmative 
adverse action of discharging her.
    Similarly, in neither Greenwell v. Charles Machine Works, Inc., 
2011 WL 1458565 (W.D.Okla., 2011); Smith v. Westchester County, 769 
F. Supp 2d 448 (S.D.N.Y. 2011), was the FMLA general posting 
requirement at issue. Smith did not involve a notice issue and 
Greenwell involved the employer's failure to comply with a different 
notification obligation under the FMLA.
    In any event, as previously stated, FMLA expressly provides that 
employers give notice to employees of rights thereunder and 
expressly provides for sanctions if notice is not given. The NLRA 
does neither.
---------------------------------------------------------------------------

    Unlike my colleagues, I find that the Supreme Court's opinion in 
Local 357, Teamsters v. NLRB, 365 U.S. 667 (1961), speaks directly to 
this point. In that case, the Board found a hiring hall agreement 
unlawfully discriminatory per se because, even though it included an 
express anti-discrimination

[[Page 54040]]

provision, it did not include two additional provisions that the Board 
declared were necessary to prevent ``unlawful encouragement of union 
---------------------------------------------------------------------------
membership.'' The Court disagreed, stating

    Perhaps the conditions which the Board attaches to hiring-hall 
arrangements will in time appeal to the Congress. Yet, where 
Congress has adopted a selective system for dealing with evils, the 
Board is confined to that system. National Labor Relations Board v. 
Drivers, etc. Local Union, 362 U.S. 274, 284-290, 80 S.Ct. 706, 712-
715, 4 L.Ed.2d 710. Where, as here, Congress has aimed its sanctions 
only at specific discriminatory practices, the Board cannot go 
farther and establish a broader, more pervasive regulatory 
scheme.\182\
---------------------------------------------------------------------------

    \182\ 365 U.S. at 676.

    Congress in Section 8(a)(1) aimed its sanctions only at employer 
actions that interfere with the exercise of Section 7 rights. By this 
rulemaking, my colleagues go farther and establish a broader, more 
pervasive regulatory scheme that targets employer inaction, or silence, 
as unlawful interference. As Local 357 instructs, they lack the 
authority to do this.\183\
---------------------------------------------------------------------------

    \183\ My colleagues attempt to distinguish Local 357 as limited 
to an interpretation of Sec. 8(a)(3) and 8(b)(2)'s prohibition of 
discriminatory practices. That may have been the issue before the 
Court, but I do not view the quoted rationale as so limited.
---------------------------------------------------------------------------

    American Hospital Association v. NLRB, 499 U.S. 606 (1991) (AHA), 
upon which the majority heavily relies, illustrates a valid exercise of 
authority under Section 6. In AHA, the Supreme Court unanimously upheld 
the Board's health care unit rule, finding that Section 6's general 
grant of rulemaking authority ``was unquestionably sufficient to 
authorize the rule at issue in this case unless limited by some other 
provision in the Act.'' Id. at 609-10 (emphasis added). The Court 
further found that the rule was clearly consistent with authority under 
Section 9(b) to make appropriate bargaining unit determinations. It 
specifically rejected the argument that language in 9(b) directing the 
Board to decide the appropriate bargaining unit ``in each case'' 
limited its authority to define appropriate units by rulemaking.
    Congress expressly authorized the Board in Section 9(b) to 
determine appropriate bargaining units and the Board exercised its 
rulemaking authority to promulgate a rule ``necessary to carry out'' 
Section 9(b). In contrast, as previously stated, there is no reasonable 
basis for finding that a rule making it unlawful for employers to fail 
to post and maintain a notice of employee rights and selected 
illustrative unfair labor practices is necessary to carry out any 
substantive section of the NLRA. Nevertheless, the majority construes 
AHA as an endorsement of deference to the exercise of Section 6 
rulemaking authority whenever Congress did not expressly limit this 
authority. This is patently incorrect. ``To suggest, as the [majority] 
effectively does, that Chevron deference is required any time a statute 
does not expressly negate the existence of a claimed administrative 
power * * *, is both flatly unfaithful to the principles of 
administrative law * * * and refuted by precedent.'' Railway Labor 
Executives' Ass'n v. National Mediation Bd., 29 F.3d 655, 671 
(D.C.Cir.1994) (citation omitted). Were courts ``to presume a 
delegation of power absent an express withholding of such power, 
agencies would enjoy virtually limitless hegemony, a result plainly out 
of keeping with Chevron and quite likely with the Constitution as 
well.'' Id.
    In sum, the majority's notice rule does not address a gap that 
Congress delegated authority to the Board to fill, whether by 
rulemaking or adjudication. The Supreme Court has made clear that 
``[w]here Congress has in the statute given the Board a question to 
answer, the courts will give respect to that answer; but they must be 
sure the question has been asked.'' NLRB v. Insurance Agents' Int'l 
Union, 361 U.S. 419, 432-433 (1960). The Supreme Court also has made 
clear: ``[Congress] does not * * * hide elephants in mouseholes.'' 
Whitman v. American Trucking Associations, 531 U.S. 457, 468 (2001).
    My colleagues' action here is markedly like the Federal Trade 
Commission (FTC) regulation rejected as ultra vires by the court of 
appeals in Am. Bar Ass'n v. FTC, supra. The FTC issued a ruling that 
attorneys engaged in certain practices were financial institutions 
subject to the privacy provision of the Gramm-Leach-Bliley Act (GBLA). 
Upon review of the detailed statutory scheme at issue, the court found 
it ``difficult to believe that Congress, by any remaining ambiguity, 
intended to undertake the regulation [of a subject] * * * and never 
mentioned [it] in the statute.'' 430 F.3d at 469. The court further 
opined that to find the FTC's interpretation to be ``deference-worthy, 
we would have to conclude that Congress not only had hidden a rather 
large elephant in a rather obscure mousehole, but had buried the 
ambiguity in which the pachyderm lurks beneath an incredibly deep mound 
of specificity, none of which bears the footprints of the beast or any 
indication that Congress even suspected its presence.'' Id. No such 
conclusion was possible in that case. No such conclusion is possible 
here. Quite simply, the Board lacks statutory authority to promulgate a 
rule that imposes a new obligation on employers and creates a new 
unfair labor practice to enforce it.

The Rule Is Arbitrary and Capricious

    Even if the Board arguably has rulemaking authority in this area, 
deference is unwarranted under Chevron and the Administrative Procedure 
Act if the rule promulgated is ``arbitrary or capricious in substance, 
or manifestly contrary to the statute.'' United States v. Mead Corp., 
533 U.S. 218, 227 (2001). Also see AHA, 499 U.S. at 618-20 (applying 
arbitrary and capricious standard in its consideration of the Board's 
rule on acute care hospital bargaining units). ``Normally, an agency 
rule would be arbitrary and capricious if the agency has relied on 
factors which Congress has not intended it to consider, entirely failed 
to consider an important aspect of the problem, offered an explanation 
for its decision that runs counter to the evidence before the agency, 
or is so implausible that it could not be ascribed to a difference in 
view or the product of agency expertise.'' Motor Vehicle Mfg. Ass'n of 
the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 
(1983). ``[T]he agency must examine the relevant data and articulate a 
satisfactory explanation for its action including a `rational 
connection between the facts found and the choice made.' '' Id. 
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 
(1962)). See also Business Roundtable et al. v. S.E.C.,--F.3d--, 2011 
WL 2936808 (D.C. Cir., July 22, 2011) (finding SEC acted arbitrarily 
and capriciously by relying on insufficient empirical data supporting 
its rule and by completely discounting contrary studies).
    In AHA, the Board's health care bargaining units rule was supported 
by ``the extensive record developed during the rulemaking proceedings, 
as well as its experience in the adjudication of health care cases 
during the 13-year period between the enactment of the health care 
amendments and its notice of proposed rulemaking.'' AHA, 499 U.S. at 
618. The Supreme Court upheld the validity of the rule finding it 
``based on substantial evidence and supported by a ``reasoned 
analysis.'' Id. at 619 (citing Motor Vehicle Mfrs. Ass., 463 U.S. at 
57).
    By contrast, the majority's articulation of the need to mandate 
that employers violate Section 8(a)(1) unless they post a notice of 
employee rights is not based

[[Page 54041]]

on substantial evidence, nor does it provide a satisfactory explanation 
for the choice they have made. They contend that a mandatory notice 
posting rule enforceable through Section 8(a)(1) is needed because they 
believe that most employees are unaware of their NLRA rights and 
therefore cannot effectively exercise those rights. This belief is 
based on: (1) Some studies indicating that employees and high school 
students about to enter the work force are generally uninformed about 
labor law; (2) an influx of immigrants in the labor force who are 
presumably also uninformed about labor law; (3) the current low and 
declining percentage of union-represented employees in the private 
sector, which presumably means that unions are less likely to be a 
source of information about employee rights; and (4) the absence of any 
general legal requirement that employers or anyone else inform 
employees about their NLRA rights. 75 FR 80411.
    Neither the Notice of Proposed Rulemaking nor today's notice 
summarizing comments in response to that notice come anywhere close to 
providing a substantial factual basis supporting the belief that most 
employees are unaware of their NLRA rights. As for the lack of high 
school education on this subject, we have only a few localized studies 
cited in a 1995 journal article by a union attorney.\184\ With respect 
to the assumption that immigrants entering the work force, we have even 
less, only anecdotal accounts. For that matter, beyond the cited 
journal article, almost all supposed factual support for the premise 
that employees are generally unaware of their rights comes in comments 
received from individuals, union organizers, attorneys representing 
unions, and immigrant rights and worker assistance organizations 
agreeing, based on professed personal experience, that most employees 
(obviously not including most of the employee commenters) are 
unfamiliar with their NLRA rights. There are, as well, anecdotal 
accounts and comments from employers, employer associations and 
management attorneys to the opposite effect that the employees know 
about their rights under the Act, but my colleagues find these less 
persuasive.
---------------------------------------------------------------------------

    \184\ 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, at 436 and fn. 28 
(1995).
     In the Notice of Proposed Rulemaking, the majority also relied 
on two articles by Professor Charles J. Morris, a co-petitioner for 
notice-posting rulemaking: ``Renaissance at the NLRB--Opportunity 
and Prospect for Non-Legislative Procedural Reform at the Labor 
Board,'' 23 Stetson L. Rev. 101, 107 (1993); and ``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). Professor 
Morris did not refer to any specific evidence supporting a belief 
that employees lack knowledge of their rights.
---------------------------------------------------------------------------

    In any event, the partisan opinions and perceptions, although 
worthy of consideration, ultimately fail as substantial evidence 
supporting the Board majority's initial premise for proposing the rule. 
There remains the Board's conclusion that the decline in union density 
provides the missing factual support. The majority explains that there 
was less need for a posting of information about NLRA rights when the 
union density was higher because ``friends and family who belonged to 
unions'' would be a source of information. This is nothing more than 
supposition. There is no empirical evidence of a correlation between 
union density and access to information about employee rights, just as 
there are no broad-based studies supporting the suppositions about a 
lack of information stemming from high school curricula or the influx 
of immigrants in the work force.
    At bottom, the inadequacy of the record to support my colleagues' 
factual premise is of no matter to them. In response to comments 
contending that the articles and studies they cite are old and 
inadequately supported, they glibly respond that the commenters ``cite 
no more recent or better supported studies to the contrary,'' as if 
opponents of the proposed rule bear that burden. Of course, it is the 
agency's responsibility to make factual findings that support its 
decision and those findings must be supported by substantial evidence 
that must examine the relevant data and articulate a satisfactory 
explanation for its action. Burlington Truck Lines, 371 U.S. at 167.
    Even more telling is the majority's footnote observation that there 
is no real need to conduct a study of the extent of employees' 
knowledge of NLRA rights because the notice posting rule would be 
justified even if only 10 percent of the workforce lacked such 
knowledge. This statement betrays the entire factual premise upon which 
the rulemaking initiative was purportedly founded and reveals a 
predisposition to issue the rule regardless of the facts. This is 
patently ``arbitrary and capricious.''
    Even assuming, if we must, that there is some factual basis for a 
concern that employees lack sufficient information about their NLRA 
rights, the majority also fails to provide a rational explanation for 
why that concern dictates their choice made to address that concern. 
Why, for instance, was a noncompulsory information system, primarily 
reliant on personal union communications, sufficient when the Wagner 
Act was passed, but not now? The union density levels for 1935 and 
today are roughly the same.\185\ Why at a time when the Board champions 
its new Web site and the Acting General Counsel continues to encourage 
the regional outreach programs initiated by his predecessor, do my 
colleagues so readily dismiss the Board's role in providing information 
about rights under the statute we administer? For that matter, why are 
the numerous employee, labor organizer, and worker advocacy groups 
whose comments profess awareness of these rights unable to communicate 
this information to those who they know lack such awareness? Is the 
problem one of access or message? Would a reversal of the union density 
trend or an increase in petition and charge filings be the only 
reliable indicators of increased awareness?
---------------------------------------------------------------------------

    \185\ Mayer, Gerald, ``Union Membership Trends in the United 
States'' (2004). Federal Publications. Paper 174, Appendix A. http://digitalcommons.ilr.cornell.edu/key_workplace/.
---------------------------------------------------------------------------

    I would think that a reasoned explanation for the choice of a 
sweeping rule making it unlawful for employers to fail to post and 
maintain notice of employee rights would at least include some 
discussion of these questions and attempt to marshal more than a 
fragmented and inconclusive factual record to support their choice. The 
majority fails to do so. Their rule is patently arbitrary and 
capricious.

Executive Order 13496

    The majority mentions in passing Executive Order 13496 \186\ and 
the DOL implementing regulation \187\ mandating that Federal 
contractors post a notice to employees of NLRA rights that is in most 
respects identical to the notice at issue here. Their consideration of 
this administrative action should have led them to the understanding 
that they lack the authority to do what the President and DOL clearly 
could do to advance essentially the same policy choice.
---------------------------------------------------------------------------

    \186\ 74 FR 6107 (Feb. 4, 2009).
    \187\ 75 FR 28368 (May 20, 2011).
---------------------------------------------------------------------------

    The authority to require that contractors agree to post an NLRA 
employee rights notice as part of doing business with the Federal 
government comes both from the President's authority as chief executive 
and the specific grant of Congressional authority in the Federal 
Property and Administrative Services Act, 40 U.S.C. 101 et seq. There 
was no need or attempt to justify the promulgation of the notice-
posting rule by relying on evidence that employees lacked knowledge of 
their rights. Moreover, in

[[Page 54042]]

the notice of a final rule, DOL rejected commenters' contentions that 
the Executive Order and implementing regulation were preempted by the 
Board's jurisdiction under the Garmon doctrine.\188\ Necessarily, this 
meant that DOL believed that the rule requiring federal contractors to 
post the employee rights notice did not involve any rights protected by 
Section 7 of the Act, such as a right to receive such information from 
their employer, or conduct prohibited by the Act, such as the 
employer's failure to provide such information.
---------------------------------------------------------------------------

    \188\ San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 
244 (1959)
---------------------------------------------------------------------------

    Not only does my colleagues' rulemaking action today contradict 
DOL's preemption analysis, but its flaws are manifest in comparison to 
the DOL's rule and the authority enabling it.

Conclusion189
---------------------------------------------------------------------------

    \189\ Because I find the rule is invalid, I find it unnecessary 
to comment on the content of the notice or the consequences, other 
than finding an unfair labor practice, if an employer fails to post 
the required notice. For the reasons stated in my dissenting opinion 
in J. Picini Flooring, 356 NLRB No. 9 (2010), I also disagree with 
the rule's requirement that certain employers must also 
electronically distribute the notice.
---------------------------------------------------------------------------

    Surely, no one can seriously believe that today's rule is primarily 
intended to inform employees of their Section 7 right to refrain from 
or to oppose organizational activities, collective bargaining, and 
union representation. My colleagues seek through promulgation of this 
rule to reverse the steady downward trend in union density among 
private sector employees in the non-agricultural American workforce. 
Theirs is a policy choice which they purport to effectuate with the 
force of law on several fronts in rulemaking and in case-by-case 
adjudication. In this instance, their action in declaring that 
employers violate the law by failing to inform employees of their 
Section 7 rights is both unauthorized and arbitrary and capricious. 
Regardless of the arguable merits of their policy choice or the broad 
scope of Chevron deference and the Board's rulemaking authority, I am 
confident that a reviewing court will soon rescue the Board from itself 
and restore the law to where it was before the sorcerer's apprentice 
sent it askew.

V. Regulatory Procedures

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
requires agencies promulgating final rules to prepare a final 
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 draft 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 a final regulatory flexibility analysis for a final 
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 this rule is notifying employees of their 
rights under 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, record keeping, 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 about $32.20 in March 2011, including 
fringe benefits.\190\ 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 $64.40 per employer 
subject to the NLRA (2 hours x $32.20) during the first year.\191\ 
These costs will decrease dramatically in subsequent years because the 
only employers affected will be those that did not previously satisfy 
their posting requirements or that have since expanded their facilities 
or established new ones. Because the final rule will not require 
employers to post the notice by email, instant messaging, text 
messaging, and the like, the cost of compliance should be, if anything, 
somewhat less than the Board previously estimated.
---------------------------------------------------------------------------

    \190\ Source: U.S. Department of Labor, Bureau of Labor 
Statistics, ``Economic News Release,'' Table B-8, June 3, 2011 
(available at http://www.bls.gov). (The Board is administratively 
informed that BLS estimates that fringe benefits are approximately 
equal to 40 percent of hourly wages. Thus, to calculate total 
average hourly earnings, BLS multiplies average hourly wages by 1.4. 
In March, 2011, average hourly wages for professional and business 
workers were $23.00. Table B-8. Accordingly, the Board multiplied 
that number by 1.4 to arrive at its estimate of $32.20 average 
hourly earnings, including fringe benefits.) In the NPRM, the Board 
estimated hourly earnings of $31.02, based on BLS data from January 
2009. 75 FR 80415. The estimate has been updated to reflect 
increases in hourly earnings since that time. Those increases have 
been relatively minor, and do not affect the Board's conclusion that 
the economic impact of the rule will not be significant; see 
discussion below.
    \191\ The National Roofing Contractors Association asserts 
(without support) that ``federal agencies have a notoriously poor 
track record in estimating the costs of new regulations on 
businesses''; it therefore predicts that ``the actual cost for many 
employers could be considerably higher.'' The Board recognizes that 
some employers, generally firms with extensive and/or multiple 
facilities, may incur initial compliance costs in excess of the 
Board's estimate. For example, a company with multiple locations may 
require more than 30 minutes to physically post the notices on all 
of its various bulletin boards. The Board's estimate, however, is an 
average for all employers; many small employers, especially those 
with only one facility and/or limited electronic communication with 
employees, may incur lower compliance costs.
     In this regard, however, contrary to numerous comments, such as 
that of St Mar Enterprises, Inc., the Board does not expect that the 
rule will be ``very burdensome'' for businesses with more than one 
facility. Normally, such firms should have to learn about the rule's 
requirements and acquire the notices only once, no matter how many 
facilities are involved. The same should be true for electronic 
posting: downloading the notice and posting it on an employer's Web 
site normally should have to be done once for all facilities. Thus, 
the only additional costs involved for multi-facility firms should 
be those of physically posting the notices at each facility.
---------------------------------------------------------------------------

    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.\192\ This rule does not apply to employers 
that do not meet the Board's jurisdictional requirements, but

[[Page 54043]]

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, and further that 
this number is a substantial number within the meaning of 5 U.S.C. 601. 
However, as discussed below, because the economic impact on those 
employers is minimal, the Board concludes that, under 5 U.S.C. 605, the 
final rule will not have a significant economic impact on any small 
employers.
---------------------------------------------------------------------------

    \192\ 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.
---------------------------------------------------------------------------

    The RFA does not define ``significant economic impact.'' 5 U.S.C. 
601. In the absence of specific definitions, ``what is `significant' * 
* * 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://www.sba.gov) (SBA Guide). As 
to economic impact and whether it is significant, one important 
indicator is the cost of compliance in relation to revenue of the 
entity or the percentage of profits affected. Id. at 17. More 
specifically, the criteria to be considered are:
     Whether the rule will lead to long-term insolvency, i.e., 
regulatory costs that significantly reduce profits;
     Whether the rule will lead to short-term insolvency, i.e., 
increasing operating expenses or new debt more than cash reserves and 
cash flow can support, causing nonmarginal firms to close;
     Whether the rule will have disproportionate effects, 
placing small entities at a significant competitive disadvantage; and
     Whether the rule will result in inefficiency, i.e., in 
social costs to small entities that outweigh the social benefits 
resulting from the rule. Id. at 26.
    Applying these standards, the Board concludes that the economic 
impact of its notice-posting rule on small employers is not 
significant. The Board has determined that the average cost of 
complying with the rule in the first year for all employers subject to 
the NLRA will be $64.40. It is unlikely in the extreme that this 
minimal cost would lead to either the short- or long-term insolvency of 
any business entity, or place small employers at a competitive 
disadvantage. Since this rule applies only to organizations within the 
NLRB's jurisdictional standards, the smallest employer subject to the 
rule must have an annual inflow or outflow across state lines of at 
least $50,000. Siemons Mailing Service, 122 NLRB 81 (1959). Given that 
the Board estimates that this rule will cost, on average, $64.40, the 
total cost for the smallest affected companies would be an amount equal 
to less than two-tenths of one percent of that required annual inflow 
or outflow (.13%). The Board concludes that such a small percentage is 
highly unlikely to adversely affect a small business.\193\ And, in the 
Board's judgment, the social benefits of employees' (and employers') 
becoming familiar with employees' NLRA rights far outweigh the minimal 
costs to employers of posting notices informing employees of those 
rights.\194\
---------------------------------------------------------------------------

    \193\ In reaching this conclusion, the Board believes it is 
likely that employers that might otherwise be significantly affected 
even by the low cost of compliance under this rule will not meet the 
Board's jurisdictional requirements, and consequently those 
employers will not be subject to this rule.
    \194\ See further discussion in section II, subsection C, 
Factual Support for the Rule, above.
---------------------------------------------------------------------------

    For all the foregoing reasons, the Board has concluded that the 
final rule will not have a significant economic impact on a substantial 
number of small entities. 5 U.S.C. 605.
    As discussed in the NPRM, because it assumes that a substantial 
number of small businesses will be required to comply with the rule, 
the Board preliminarily considered alternatives that would minimize the 
impact of the rule, including a tiered approach for small entities with 
only a few employees. However, as it also explained, the Board rejected 
those alternatives, concluding that a tiered approach or an exemption 
for some small entities would substantially undermine the purpose of 
the rule because so many employers would be exempt under the SBA 
definitions. Given the very small estimated cost of compliance, it is 
possible that the burden on a small business of determining whether it 
fell into a particular tier might exceed the burden of compliance. The 
Board further pointed out that Congress gave the Board very broad 
jurisdiction, with no suggestion that it wanted to limit coverage of 
any part of the NLRA to only larger employers. The Board also believes 
that employees of small employers have no less need of a Board notice 
than have employees of larger employers. Finally, the Board's 
jurisdictional standards mean that very small employers will not be 
covered by the rule in any case. 75 FR 80416. (A summary of the Board's 
discretionary jurisdictional standards appears in Sec.  104.204, 
below.) Thus, although several comments urge that small employers be 
exempted from the rule, the Board remains persuaded, for the reasons 
set forth in the NPRM, that such an exemption is unwarranted. \195\
---------------------------------------------------------------------------

    \195\ Cass County Electric Cooperative says that, after 
estimating the average cost of compliance, ``the NLRB quickly 
digresses into an attempt to estimate the cost of the proposed rule 
on only small businesses.'' The Board responds that in estimating 
the cost of the rule on small businesses, it was doing what the RFA 
explicitly requires (and that focusing on small businesses, which 
comprise more than 99 percent of potentially affected firms, is 
hardly a ``digression''). The comment also asserts that the Board 
concluded ``that the cost of estimating the implementation cost will 
likely exceed the cost of implementation, and thus is not warranted. 
At best, this is a poor excuse to justify the rule.'' This misstates 
the Board's observation that ``Given the very small estimated cost 
of compliance, it is possible that the burden on a small business of 
determining whether it fell into a particular tier might exceed the 
burden of compliance.'' This observation was one of the reasons why 
the Board rejected a tiered approach to coverage for small entities, 
not an ``excuse to justify the rule.'' 75 FR 80416.
---------------------------------------------------------------------------

    Some comments contend that, in concluding that the proposed rule 
will not have a significant impact on small employers, the Board 
understates the rule's actual prospective costs. One comment, from 
Baker & Daniels LLP, argues that the Board improperly focuses solely on 
the cost of complying with the rule--i.e., of printing and posting the 
notice--and ignored the ``actual economic impact of the rule's effect 
and purpose.'' According to this comment, it is predictable that, as 
more employees become aware of their NLRA rights, they will file more 
unfair labor practice charges and elect unions to serve as their 
collective-bargaining representatives. The comment further asserts that 
the Board has ignored the ``economic realities of unionization,'' 
specifically that union wages are inflationary; that unions make 
business less flexible, less competitive, and less profitable; and that 
unions cause job loss and stifle economic recovery from recessions. 
Accordingly, this comment contends that ``the Board's RFA certification 
is invalid, and [that] the Board must prepare an initial regulatory 
flexibility analysis.'' Numerous other comments echo similar concerns, 
but without reference to the RFA.
    The Board disagrees with the comment submitted by Baker & Daniels 
LLP.\196\ Section 605(b) of the RFA states that an agency need not 
prepare an initial regulatory flexibility analysis if the agency head 
certifies that the rule

[[Page 54044]]

will not have a significant economic impact on a substantial number of 
small entities. 5 U.S.C. 605(b) (emphasis added). The Board understands 
the ``economic impact of * * * the rule'' to refer to the costs to 
affected entities of complying with the rule, not to the economic 
impact of a series of subsequent decisions made by individual actors in 
the economy that are neither compelled by, nor the inevitable result 
of, the rule.\197\ Even if more employees opt for union representation 
after learning about their rights, employers can avoid the adverse 
effects on business costs, flexibility, and profitability predicted by 
Baker & Daniels LLP and other commenters by not agreeing to unions' 
demands that might produce those effects.\198\
---------------------------------------------------------------------------

    \196\ In any event, the comment from Baker & Daniels LLP and 
related comments are difficult to square with the assertions made in 
numerous other comments that the notice posting is unnecessary 
because employees are already well aware of their NLRA rights and 
have made informed decisions not to join unions or seek union 
representation.
    \197\ For RFA purposes, the relevant economic impact on small 
entities is the impact of compliance with the rule. Mid-Tex Electric 
Cooperative, Inc. v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985), cited 
in SBA Guide, above, at 77.
    \198\ NLRA Section 8(d) expressly states that the obligation to 
bargain in good faith ``does not compel either party to agree to a 
proposal or require the making of a concession[.]'' 29 U.S.C. 
158(d).
---------------------------------------------------------------------------

    The Board finds support for this view in the language of Section 
603 of the RFA, which lists the items to be included in an initial 
regulatory flexibility analysis if one is required. 5 U.S.C. 603. 
Section 603(a) states only that such analysis ``shall describe the 
impact of the proposed rule on small entities.'' 5 U.S.C. 603(a). 
However, Section 603(b) provides, as relevant here, that ``[e]ach 
initial regulatory flexibility analysis * * * shall contain--* * *
    ``(4) a description of the projected reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record[.]'' 5 U.S.C. 603(b)(4) (emphasis 
added). The Small Business Administration cites, as examples of ``other 
compliance requirements,''

    (a) Capital costs for equipment needed to meet the regulatory 
requirements; (b) costs of modifying existing processes and 
procedures to comply with the proposed rule; (c) lost sales and 
profits resulting from the proposed rule; (d) changes in market 
competition as a result of the proposed rule and its impact on small 
entities or specific submarkets of small entities; (e) extra costs 
associated with the payment of taxes or fees associated with the 
proposed rule; and (f) hiring employees dedicated to compliance with 
regulatory requirements.\199\
---------------------------------------------------------------------------

    \199\ SBA Guide, above, at 34.

    Thus, the ``impact'' on small entities referred to in Section 
603(a) refers only to the rule's projected compliance costs to small 
entities (none of which would result from posting a workplace notice), 
not the kinds of speculative and indirect economic impact that Baker & 
Daniels LLC invokes.\200\
---------------------------------------------------------------------------

    \200\ Baker & Daniels LLP cites no authority to support its 
contention that the RFA is concerned with costs other than the costs 
of compliance with the rule, and the Board is aware of none.
---------------------------------------------------------------------------

    Associated Builders and Contractors, Inc. (ABC) and Retail Industry 
Leaders Association (RILA) contend that the Board's RFA analysis fails 
to account for the costs of electronic notice posting, especially for 
employers that communicate with employees via multiple electronic 
means. Both comments deplore what they consider to be the rule's vague 
requirements in this respect. ABC argues that clear guidance is needed, 
and that the Board should withdraw the electronic notice posting 
requirements until more information can be gathered. RILA asserts that 
``[d]eciphering and complying with the Board's requirements would 
impose significant legal and administrative costs and inevitably result 
[in] litigation as parties disagree about when a communication is 
`customarily used,' and whether and when employees need to be informed 
through multiple communications.''
    Numerous comments assert that employers, especially small employers 
that lack professional human resources staff, will incur significant 
legal expenses as they attempt to comply with the rule. For example, 
Fisher and Phillips, a management law firm, urges that the cost of 
legal fees should be included in assessing the economic impact of the 
proposed rule: ``[I]t might be considered na[iuml]ve to assume that a 
significant percentage of small employers would not seek the advice of 
counsel, and it would be equally na[iuml]ve to assume that a 
significant percentage of those newly-engaged lawyers could be retained 
for as little as $31.02/hour.''
    Those comments are not persuasive. The choice to retain counsel is 
not a requirement for complying with the rule. This is not a 
complicated or nuanced rule. The employer is only required to post a 
notice provided by the Board in the same manner in which that employer 
customarily posts notices to its employees. The Board has explained 
above what the rule's electronic posting provisions require of 
employers in general, and it has simplified those provisions by 
eliminating the requirement that notices be provided by email and many 
other forms of electronic communication.\201\ It should not be 
necessary for employers, small or large, to add human resources staff, 
retain counsel, or resort to litigation if they have questions 
concerning whether the proposed rule applies to them or about the 
requirements for technical compliance with the rule, including how the 
electronic posting provisions specifically affect their 
enterprises.\202\ Such questions can be directed to the Board's 
regional offices, either by telephone, personal visit, email, or 
regular mail, and will be answered free of charge by representatives of 
the Board.\203\
---------------------------------------------------------------------------

    \201\ Contrary to ABC's and RILA's assertions, the Board did 
estimate the cost of complying with the rule's electronic notice 
posting requirements; its estimated average cost of $62.04 
specifically included such costs. 75 FR 80415. Although ABC faults 
the Board for failing to issue a preliminary request for information 
(RFI) concerning the ways employers communicate with employees 
electronically, the Board did ask for comments concerning its RFA 
certification in the NPRM, id. at 80416. In this regard, ABC states 
only that ``many ABC member companies communicate with employees 
through email or other electronic means,'' which the Board expressly 
contemplated in the NPRM, id. at 80413, and which is also the 
Board's practice with respect to communicating with its own 
employees. If ABC has more specific information it has failed to 
provide it. In any event, the final rule will not require email or 
many other types of electronic notice.
    \202\ Association of Corporate Counsel contends that employers 
will have to modify their policies and procedures manuals as a 
result of the rule. The Board questions that contention, but even if 
some employers do take those steps, they would not be a cost of 
complying with the rule.
    \203\ Fisher and Phillips also suggest that the Board failed to 
take into account the effect that the proposed rule would have on 
the Board's own case intake and budget. The RFA, however, does not 
require an estimate of the economic effects of proposed rules on 
Federal agencies.
---------------------------------------------------------------------------

    Cass County Electric Cooperative argues that the Board failed to 
take into account legal expenses that employers will incur if they fail 
to ``follow the letter of the proposed rule.'' The comment urges that 
the Board should estimate the cost to businesses ``should they have to 
defend themselves against an unfair labor practice for failure to 
comply with the rule, no matter what the circumstances for that failure 
might be,'' presumably including failures to post the notice by 
employers that are unaware of the rule and inadvertent failures to 
comply with technical posting requirements. International Foodservice 
Distributors Association contends that the Board also should have 
considered the costs of tolling the statute of limitations when 
employers fail to post the notice. However, the costs referred to in 
these comments are costs of not complying with the rule, not compliance 
costs. As stated above, for RFA purposes, the relevant economic 
analysis focuses on the costs of complying with the rule.\204\
---------------------------------------------------------------------------

    \204\ See fn. 197, above.

---------------------------------------------------------------------------

[[Page 54045]]

    Some comments assert that the content of the notice will prompt 
employee questions, which managers and supervisors will have to answer, 
and be trained to answer, and that the Board failed to account for the 
cost of such training and discussions in terms of lost work time.\205\ 
Other comments contend that employers will incur costs of opposing an 
increased number of union organizing campaigns.\206\ Relatedly, several 
comments state that employers should be allowed to, and/or will respond 
to the notice by informing employees of aspects of unionization and 
collective bargaining that are not covered by the notice; some suggest 
that employers may post their own notices presenting their point of 
view.\207\ (A few comments, by contrast, protest that employers will be 
prohibited from presenting their side of the issues raised by the 
posting of notices.) The Board responds that any costs that employers 
may incur in responding to employee questions, in setting forth the 
employers' views on unions and collective bargaining, or in opposing 
union organizing efforts will be incurred entirely at the employers' 
own volition; they are not a cost of complying with the rule.
---------------------------------------------------------------------------

    \205\ See, e.g., comments of Cass County Electric Cooperative 
and Baker & McKenzie. The latter estimates that each private sector 
employee will spend at least an hour attending meetings concerning 
the content of the notice, and that the cost to the economy in terms 
of lost employee work time will be $3.5 billion.
    \206\  See, e.g., comment of Dr. Pepper Snapple Group.
    \207\  See, e.g., comments of Metro Toyota and Capital 
Associated Industries, Inc.
---------------------------------------------------------------------------

    As discussed above, many comments express concerns that union 
supporters will tear down the notices in order to expose employers to 
8(a)(1) liability for failing to post the notices. Some of these 
comments also contend that, as a result, employers will have to spend 
considerable time monitoring the notices to make sure that they are not 
torn down, or incur additional costs of installing tamper-proof 
bulletin boards. One commenter predicts that his employer will have to 
spend $20,000 for such bulletin boards at a single facility, or a total 
of $100,000 at all of its facilities, and even then will have to spend 
two hours each month monitoring the postings. For the reasons discussed 
above, the Board is not convinced at this time that the problem of 
posters being torn down is anything more than speculative, and 
accordingly is inclined to discount these predictions substantially. In 
any event, the rule requires only that employers ``take reasonable 
steps''--not every conceivable step--to ensure that the notice is not 
defaced or torn down. The rule does not require, or even suggest, that 
employers must spend thousands of dollars to install tamper-proof 
bulletin boards or that employers must constantly monitor the 
notice.\208\
---------------------------------------------------------------------------

    \208\ Contrary to one comment's suggestion, no employer will be 
``bankrupted'' by fines imposed if the notice is torn down. As 
explained above, the Board does not have the authority to impose 
fines.
---------------------------------------------------------------------------

    One comment contends that most small employers do not have 11 x 17-
inch color printers, and therefore will have to have the posters 
printed commercially at a cost that, alone, assertedly will exceed the 
Board's estimate of the cost of the rule. The Board understands the 
concerns of this small employer. The Board points out that it will 
furnish a reasonable number of copies of the notice free of charge to 
any requesting employer. Moreover, as explained above, employers may 
reproduce the notice in black-and-white and may print the notice on two 
standard-sized, 8.5 x 11-inch pages and tape or bind them together, 
rather than having them printed commercially.
    A number of comments argue that the rule will lead to workplace 
conflict. For example, the comment of Wiseda Corporation contains the 
following:

    Unnecessary Confusion and Conflict in the Workplace. The labor 
law terms and industrial union language of the proposed notice (such 
as hiring hall and concerted activity) present an unclear and 
adversarial picture to employees. Most non-union employers like us, 
who wish to remain non-union, encourage cooperative problem solving. 
In a modern non-union workplace, to require such a poster 
encouraging strikes and restroom leaflets is disrespectful of the 
hard work and good intentions of employers, management, and 
employees. The proposed poster would exist alongside other company 
notices on problem-solving, respect for others, resolving harassment 
issues, etc., and would clearly be out of character and 
inappropriate. (Emphasis in original.)

Another comment puts it more bluntly: ``The notice as proposed is more 
of an invitation to cause employee/employer disputes rather than an 
explanation of employee rights.'' The Board's response is that the ill 
effects predicted in these comments, like the predicted adverse effects 
of unionization discussed above, are not costs of compliance with the 
rule, but of employees' learning about their workplace rights. In 
addition, Congress, not the Board, created the subject rights and did 
so after finding that vesting employees with these rights would reduce 
industrial strife.

B. Paperwork Reduction Act (PRA) 209
---------------------------------------------------------------------------

    \209\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

    The final 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 copies of the notice that are exact 
duplicates in content, size, format, and type size and style. Under the 
regulations implementing the PRA, ``[t]he public disclosure of 
information originally supplied by the Federal government to [a] 
recipient for the purpose of disclosure to the public'' is not 
considered a ``collection of information'' under the Act. See 5 CFR 
1320.3(c)(2). Therefore, contrary to several comments, the posting 
requirement is not subject to the PRA.\210\
---------------------------------------------------------------------------

    \210\ The California Chamber of Commerce and the National 
Council of Agricultural Employers dispute this conclusion. They 
assert that the PRA distinguishes between the ``agencies'' to which 
it applies and the ``Federal government,'' and therefore that the 
exemption provided in 5 CFR 1320.3(c)(2) applies only to information 
supplied by ``the actual Federal government,'' not to information 
supplied by a Federal agency such as the Board. The flaw in this 
argument is that there is no such legal entity as ``the [actual] 
Federal government.'' What is commonly referred to as ``the Federal 
government'' is a collection of the three branches of the United 
States government, including the departments of the executive 
branch, and the various independent agencies, including the Board. 
If ``the Federal government'' can be said to act at all, it can do 
so only through one or more of those entities--in this instance, the 
Board--and that is undoubtedly the meaning that the drafters of 5 
CFR 1320(c)(2) meant to convey.
---------------------------------------------------------------------------

    The Board received no comments suggesting that the PRA covers the 
costs to the Federal government of administering the regulations 
established by the proposed rule. Therefore, the NPRM's discussion of 
this issue stands.
    Accordingly, this rule does not contain information collection 
requirements that require approval by the Office of Management and 
Budget under the PRA (44 U.S.C. 3507 et seq.).

C. Congressional Review Act (CRA) 211
---------------------------------------------------------------------------

    \211\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

    This rule is a ``major rule'' as defined by Section 804(2) of the 
Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act), because it will have an effect on the 
economy of more than $100 million, at least during the year it takes 
effect. 5 U.S.C. 804(2)(A).\212\ Accordingly, the

[[Page 54046]]

effective date of the rule is 75 days after publication in the Federal 
Register.\213\
---------------------------------------------------------------------------

    \212\ A rule is a ``major rule'' for CRA purposes if it will (A) 
Have an annual effect on the economy of $100 million or more; (B) 
cause a major increase in costs or prices for consumers, individual 
industries, government agencies, or geographic regions; or (C) 
result in significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of United 
States-based enterprises to compete with foreign-based enterprises 
in domestic and export markets. 5 U.S.C. 804. The notice-posting 
rule is a ``major rule'' because, as explained in the discussion of 
the Regulatory Flexibility Act above, the Board has estimated that 
the average cost of compliance with the rule will be approximately 
$64.40 per affected employer; thus, because there are some 6 million 
employers that could potentially be affected by the rule, the total 
cost to the economy of compliance with the rule will be 
approximately $386.4 million. As further explained, nearly all of 
that cost will be incurred during the year in which the rule takes 
effect; in subsequent years, the only costs of compliance will be 
those incurred by employers that either open new facilities or 
expand existing ones, and those that for one reason or another fail 
to comply with the rule during the first year. The Board therefore 
expects that the costs of compliance will be far less than $100 
million in the second and subsequent years. The Board is confident 
that the rule will have none of the effects enumerated in 5 U.S.C. 
804(2)(B) and (C) above.
    \213\ The Board finds unpersuasive the suggestions in several 
comments that the effective date of the rule be postponed to as late 
as April 15, 2012. The Board finds nothing in the requirements of 
the rule or in the comments received that would warrant postponing 
the effective date.
---------------------------------------------------------------------------

List of Subjects in 29 CFR Part 104

    Administrative practice and procedure, Employee rights, Labor 
unions.

Text of Final Rule

    Accordingly, a new part 104 is added to 29 CFR chapter 1 to read as 
follows:

PART 104--NOTIFICATION OF EMPLOYEE RIGHTS; OBLIGATIONS OF EMPLOYERS

Subpart A--Definitions, Requirements for Employee Notice, and 
Exceptions and Exemptions
Sec.
104.201 What definitions apply to this part?
104.202 What employee notice must employers subject to the NLRA post 
in the workplace?
104.203 Are Federal contractors covered under this part?
104.204 What entities are not subject to this part?
Appendix to Subpart A--Text of Employee Notice
Subpart B--General Enforcement and Complaint Procedures
104.210 How will the Board determine whether an employer is in 
compliance with this part?
104.211 What are the procedures for filing a charge?
104.212 What are the procedures to be followed when a charge is 
filed alleging that an employer has failed to post the required 
employee notice?
104.213 What remedies are available to cure a failure to post the 
employee notice?
104.214 How might other Board proceedings be affected by failure to 
post the employee notice?
Subpart C--Ancillary Matters
104.220 What other provisions apply to this part?

    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 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).
    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 format, type size, 
and style as the Board shall prescribe. If an employer chooses to print 
the notice after downloading it from the Board's Web site, the printed 
notice shall be at least 11 inches by 17 inches in size.
    (c) Adaptation of language. The National Labor Relations Board may 
find that an Act of Congress, clarification of existing law by the 
courts or the Board, or other circumstances make modification of the 
employee notice necessary to achieve the purposes of this part. In such 
circumstances, the Board will promptly issue rules, regulations, or 
orders as are needed to ensure that all future employee notices contain 
appropriate language to achieve the purposes of this part.
    (d) Physical posting of employee notice. The employee notice must 
be posted in conspicuous places where they are readily seen by 
employees, including all places where notices to

[[Page 54047]]

employees concerning personnel rules or policies are customarily 
posted. Where 20 percent or more of an employer's workforce is not 
proficient in English and speaks a language other than English, the 
employer must post the notice in the language employees speak. If an 
employer's workforce includes two or more groups constituting at least 
20 percent of the workforce who speak different languages, the employer 
must either physically post the notice in each of those languages or, 
at the employer's option, post the notice in the language spoken by the 
largest group of employees and provide each employee in each of the 
other language groups a copy of the notice in the appropriate language. 
If an employer requests from the Board a notice in a language in which 
it is not available, the requesting employer will not be liable for 
non-compliance with the rule until the notice becomes available in that 
language. An employer must take reasonable steps to ensure that the 
notice is not altered, defaced, covered by any other material, or 
otherwise rendered unreadable.
    (e) Obtaining a poster with the employee notice. A poster with the 
required employee notice, including a poster with the employee notice 
translated into languages other than English, will be printed by the 
Board, and may be obtained from the Board's office, 1099 14th Street, 
NW., Washington, DC 20570, or from any of the Board's regional, 
subregional, or resident offices. Addresses and telephone numbers of 
those offices may be found on the Board's Web site at http://www.nlrb.gov. A copy of the poster in English and in languages other 
than English may also be downloaded from the Board's Web site at http://www.nlrb.gov. Employers also may reproduce and use copies of the 
Board's official poster, provided that the copies duplicate the 
official poster in size, content, format, and size and style of type. 
In addition, employers may use commercial services to provide the 
employee notice poster consolidated onto one poster with other 
Federally mandated labor and employment notices, so long as the 
consolidation does not alter the size, content, format, or size and 
style of type of the poster provided by the Board.
    (f) Electronic posting of employee notice. (1) In addition to 
posting the required notice physically, an employer must also post the 
required notice on an intranet or internet site if the employer 
customarily communicates with its employees about personnel rules or 
policies by such means. An employer that customarily posts notices to 
employees about personnel rules or policies on an intranet or internet 
site will satisfy the electronic posting requirement by displaying 
prominently--i.e., no less prominently than other notices to 
employees--on such a site either an exact copy of the poster, 
downloaded from the Board's Web site, or a link to the Board's Web site 
that contains the poster. The link to the Board's Web site must read, 
``Employee Rights under the National Labor Relations Act.''
    (2) Where 20 percent or more of an employer's workforce is not 
proficient in English and speaks a language other than English, the 
employer must provide notice as required in paragraph (f)(1) of this 
section in the language the employees speak. If an employer's workforce 
includes two or more groups constituting at least 20 percent of the 
workforce who speak different languages, the employer must provide the 
notice in each such language. The Board will provide translations of 
the link to the Board's Web site for any employer that must or wishes 
to display the link on its Web site. If an employer requests from the 
Board a notice in a language in which it is not available, the 
requesting employer will not be liable for non-compliance with the rule 
until the notice becomes available in that language.


Sec.  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.


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) 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, condominiums,              $500,000.
 cooperatives.
Architects.................................  Nonretail standard.

[[Page 54048]]

 
Art museums, cultural centers, libraries...  $1 million.
Bandleaders................................  Retail/nonretail (depends on customer).
Cemeteries.................................  $500,000.
Colleges, universities, other private        $1 million.
 schools.
Communications (radio, TV, cable,            $100,000.
 telephone, telegraph).
Credit unions..............................  Either retail or nonretail standard.
Day care centers...........................  $250,000.
Gaming industry............................  $500,000.
Health care institutions:                    ...................................................................
    Nursing homes, visiting nurses           $100,000.
     associations.
    Hospitals, blood banks, other health     $250,000.
     care facilities (including doctors'
     and dentists' offices).
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, http://www.nlrb.gov.
    (e) This part does not apply to the United States Postal Service.

Appendix to Subpart A--Text of Employee Notice

``EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

    The National Labor Relations Act (NLRA) guarantees the right of 
employees to organize and bargain collectively with their employers, 
and to engage in other protected concerted activity or to refrain 
from engaging in any of the above activity. Employees covered by the 
NLRA* are protected from certain types of employer and union 
misconduct. This Notice gives you general information about your 
rights, and about the obligations of employers and unions under the 
NLRA. Contact the National Labor Relations Board (NLRB), the Federal 
agency that investigates and resolves complaints under the NLRA, 
using the contact information supplied below, if you have any 
questions about specific rights that may apply in your particular 
workplace.
    ``Under the NLRA, you have the right to:
     Organize a union to negotiate with your employer 
concerning your wages, hours, and other terms and conditions of 
employment.
     Form, join or assist a union.
     Bargain collectively through representatives of 
employees' own choosing for a contract with your employer setting 
your wages, benefits, hours, and other working conditions.
     Discuss your wages and benefits and other terms and 
conditions of employment or union organizing with your co-workers or 
a union.
     Take action with one or more co-workers to improve your 
working conditions by, among other means, raising work-related 
complaints directly with your employer or with a government agency, 
and seeking help from a union.
     Strike and picket, depending on the purpose or means of 
the strike or the picketing.
     Choose not to do any of these activities, including 
joining or remaining a member of a union.
    ``Under the NLRA, it is illegal for your employer to:
     Prohibit you from talking about or soliciting for a 
union during non-work time, such as before or after work or during 
break times; or from distributing union literature during non-work 
time, in non-work areas, such as parking lots or break rooms.
     Question you about your union support or activities in 
a manner that discourages you from engaging in that activity.
     Fire, demote, or transfer you, or reduce your hours or 
change your shift, or otherwise take adverse action against you, or 
threaten to take any of these actions, because you join or support a 
union, or because you engage in concerted activity for mutual aid 
and protection, or because you choose not to engage in any such 
activity.
     Threaten to close your workplace if workers choose a 
union to represent them.
     Promise or grant promotions, pay raises, or other 
benefits to discourage or encourage union support.
     Prohibit you from wearing union hats, buttons, t-
shirts, and pins in the workplace except under special 
circumstances.
     Spy on or videotape peaceful union activities and 
gatherings or pretend to do so.
    ``Under the NLRA, it is illegal for a union or for the union 
that represents you in bargaining with your employer to:
     Threaten or coerce you in order to gain your support 
for the union.
     Refuse to process a grievance because you have 
criticized union officials or because you are not a member of the 
union.
     Use or maintain discriminatory standards or procedures 
in making job referrals from a hiring hall.
     Cause or attempt to cause an employer to discriminate 
against you because of your union-related activity.
     Take adverse action against you because you have not 
joined or do not support the union.
    ``If you and your co-workers select a union to act as your 
collective bargaining representative, your employer and the union

[[Page 54049]]

are required to bargain in good faith in a genuine effort to reach a 
written, binding agreement setting your terms and conditions of 
employment. The union is required to fairly represent you in 
bargaining and enforcing the agreement.
    ``Illegal conduct will not be permitted. If you believe your 
rights or the rights of others have been violated, you should 
contact the NLRB promptly to protect your rights, generally within 
six months of the unlawful activity. You may inquire about possible 
violations without your employer or anyone else being informed of 
the inquiry. Charges may be filed by any person and need not be 
filed by the employee directly affected by the violation. The NLRB 
may order an employer to rehire a worker fired in violation of the 
law and to pay lost wages and benefits, and may order an employer or 
union to cease violating the law. Employees should seek assistance 
from the nearest regional NLRB office, which can be found on the 
Agency's Web site: http://www.nlrb.gov.
    You can also contact the NLRB by calling toll-free: 1-866-667-
NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing 
impaired.
    If you do not speak or understand English well, you may obtain a 
translation of this notice from the NLRB's Web site or by calling 
the toll-free numbers listed above.
    ``*The National Labor Relations Act covers most private-sector 
employers. Excluded from coverage under the NLRA are 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?

    The Board has determined that employees must be aware of their NLRA 
rights in order to exercise those rights effectively. Employers subject 
to this rule are required to post the employee notice to inform 
employees of their rights. Failure to post the employee notice may be 
found to interfere with, restrain, or coerce employees in the exercise 
of the rights guaranteed by NLRA Section 7, 29 U.S.C. 157, in violation 
of NLRA Section 8(a)(1), 29 U.S.C. 158(a)(1).
    Normally, the Board will determine whether an employer is in 
compliance when a person files an unfair labor practice charge alleging 
that the employer has failed to post the employee notice required under 
this part. Filing a charge sets in motion the Board's procedures for 
investigating and adjudicating alleged unfair labor practices, and for 
remedying conduct that the Board finds to be unlawful. See NLRA 
Sections 10-11, 29 U.S.C. 160-61, and 29 CFR part 102, subpart B.


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 remedies are available to cure a failure to post 
the employee notice?

    (a) If the Board finds that the respondent employer has failed to 
post the required employee notices as alleged, the respondent will be 
ordered to cease and desist from the unlawful conduct and post the 
required employee notice, as well as a remedial notice. In some 
instances additional remedies may be appropriately invoked in keeping 
with the Board's remedial authority.
    (b) Any employer that threatens or retaliates against an employee 
for filing charges or testifying at a hearing concerning alleged 
violations of the notice-posting requirement may be found to have 
committed an unfair labor practice. See NLRA Section 8(a)(1) and 
8(a)(4), 29 U.S.C. 158(a)(1), (4).


Sec.  104.214  How might other Board proceedings be affected by failure 
to post the employee notice?

    (a) Tolling of statute of limitations. When an employee files an 
unfair labor practice charge, the Board may find it appropriate to 
excuse the employee from the requirement that charges be filed within 
six months after the occurrence of the allegedly unlawful conduct if 
the employer has failed to post the required employee notice unless the 
employee has received actual or constructive notice that the conduct 
complained of is unlawful. See NLRA Section 10(b), 29 U.S.C. 160(b).
    (b) Noncompliance as evidence of unlawful motive. The Board may 
consider a knowing and willful refusal to comply with the requirement 
to post the employee notice as evidence of unlawful motive in a case in 
which motive is an issue.

Subpart C--Ancillary Matters


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

[[Page 54050]]

officers, employees, or agents, or any other person.

    Signed in Washington, DC, August 22, 2011.
Wilma B. Liebman,
Chairman.

[FR Doc. 2011-21724 Filed 8-25-11; 8:45 am]
BILLING CODE 7545-01-P