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

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NATIONAL LABOR RELATIONS mutual aid or protection, and shall also have The Board suggested a number of BOARD the right to refrain from any or all such reasons why such a knowledge gap activities[.] could exist—the low percentage of 29 CFR Part 104 In Section 1, 29 U.S.C. 151, Congress employees who are represented by RIN 3142–AA07 explained why it was necessary for unions, and thus lack an important those rights to be protected: source of information about NLRA Notification of Employee Rights Under The denial by some employers of the right rights; the increasing proportion of the National Labor Relations Act of employees to organize and the refusal by immigrants in the work force, who are some employers to accept the procedure of unlikely to be familiar with their AGENCY: National Labor Relations collective bargaining lead to strikes and other workplace rights; and lack of Board. forms of industrial strife or unrest, which information about labor law and labor ACTION: Final rule. have the intent or the necessary effect of relations on the part of high school burdening or obstructing commerce[.] * * * students who are about to enter the SUMMARY: On December 22, 2010, the * * * * * labor force.4 National Labor Relations Board (Board) Experience has proved that protection by Of greatest concern to the Board, issued a proposed rule requiring law of the right of employees to organize and however, is the fact that, except in very employers, including labor bargain collectively safeguards commerce limited circumstances, no one is organizations in their capacity as from injury, impairment, or interruption, and required to inform employees of their employers, subject to the National Labor promotes the flow of commerce by removing NLRA rights.5 The Board is almost Relations Act (NLRA) to post notices certain recognized sources of industrial strife unique among agencies and and unrest, by encouraging practices informing their employees of their rights departments administering major as employees under the NLRA. This fundamental to the friendly adjustment of final rule sets forth the Board’s review industrial disputes arising out of differences as to wages, hours, or other working ‘‘Renaissance at the NLRB—Opportunity and of and responses to comments on the conditions, and by restoring equality of Prospect for Non-Legislative Procedural Reform at proposal and incorporates any changes the Labor Board,’’ 23 Stetson L. Rev. 101, 107 bargaining power between employers and (1993); Morris, ‘‘NLRB Protection in the Nonunion made to the rule in response to those employees. Workplace: A Glimpse at a General Theory of comments. * * * * * Section 7 Conduct,’’ 137 U. Pa. L. Rev. 1673, 1675– The Board believes that many It is declared to be the policy of the United 1676 (1989). 75 FR at 80411. 4 employees protected by the NLRA are States to eliminate the causes of certain Id. 5 unaware of their rights under the statute substantial obstructions to the free flow of The Board requires that employees be notified of their NLRA rights in only the following narrow and that the rule will increase commerce and to mitigate and eliminate circumstances: (1) For the three working days knowledge of the NLRA among these obstructions when they have occurred before a Board-conducted representation election, employees, in order to better enable the by encouraging the practice and procedure of the employer is required to post a notice of election exercise of rights under the statute. A collective bargaining and by protecting the including a brief description of employee rights; see beneficial side effect may well be the exercise by workers of full freedom of 29 CFR 103.20. (2) When an employer or a union association, self-organization, and has been found to have violated employee rights promotion of statutory compliance by designation of representatives of their own under the NLRA, it is required to post a notice containing a brief summary of those rights. (3) employers and unions. choosing, for the purpose of negotiating the The final rule establishes the size, Before a union may seek to obligate newly hired terms and conditions of their employment or nonmember employees to pay dues and fees under form, and content of the notice, and sets other mutual aid or protection. a union-security clause, it must inform them of forth provisions regarding the Thus, Congress plainly stated that, in its their right under NLRB v. General Motors, 373 U.S. enforcement of the rule. 734 (1963), and Communications Workers v. Beck, judgment, protecting the rights of 487 U.S. 735 (1988), to be or remain nonmembers DATES: This rule will be effective on employees to form and join unions and and that nonmembers have the right to object to November 14, 2011. to engage in collective bargaining would paying for union activities unrelated to the union’s FOR FURTHER INFORMATION CONTACT: duties as the bargaining representative and to obtain benefit not only the employees a reduction in dues and fees of such activities. Lester A. Heltzer, Executive Secretary, themselves, but the nation as a whole. California Saw & Knife Works, 320 NLRB 224, 233 National Labor Relations Board, 1099 The Board was established to ensure (1995), enfd. sub nom. Machinists v. NLRB, 133 14th Street, NW., Washington, DC that employers and, later, unions F.3d 1012 (7th Cir. 1998), cert. denied sub nom. 20570, (202) 273–1067 (this is not a toll- Strang v. NLRB, 525 U.S. 813 (1998). The same respect the exercise of employees’ rights notice must also be given to union members if they free number), 1–866–315–6572 (TTY/ under the NLRA.2 did not receive it when they entered the bargaining TDD). For employees to fully exercise their unit. Paperworkers Local 1033 (Weyerhaeuser Paper SUPPLEMENTARY INFORMATION: NLRA rights, however, they must know Co.), 320 NLRB 349, 350 (1995), rev’d. on other that those rights exist and that the Board grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 I. Background on the Rulemaking (6th Cir. 1997), vacated sub nom. United protects those rights. As the Board Paperworkers Intern. Union v. Buzenius, 525 U.S. The NLRA, enacted in 1935, is the explained in its Notice of Proposed 979 (1998). (4) When an employer voluntarily Federal statute that regulates most Rulemaking (NPRM), 75 FR 80410, it recognizes a union, the Board has required that the 3 employer must post a notice informing employees: private sector labor-management has reason to think that most do not. (i) That the employer recognized the union on the 1 relations in the United States. Section basis of evidence that it was designated by a 7 of the NLRA, 29 U.S.C. 157, 2 The original NLRA did not include restrictions majority of the unit employees; (ii) the date of guarantees that on the actions of unions; those were added in the recognition; (iii) that all employees, including those Labor-Management Relations (Taft-Hartley) Act of who previously signed cards for the recognized Employees shall have the right to self- 1947, 29 U.S.C. 141 et seq., Title I. union, have the right to be represented by a labor organization, to form, join, or assist labor 3 The Board cited three law review articles in organization of their choice, or no union at all; (iv) organizations, to bargain collectively through which the authors contended that American that within 45 days of the date of the notice a representatives of their own choosing, and to workers are largely unaware of their NLRA rights, decertification or rival petition, supported by 30 engage in other concerted activities for the that the Board can take action to vindicate those percent or more of the unit employees, may be filed rights, and that this lack of knowledge stands in the with the Board and will be processed to an election; purpose of collective bargaining or other way of employees’ effectively exercising their and, (v) that if no petition is filed within 45 days, rights. Peter D. DeChiara, ‘‘The Right to Know: An the recognition will not be subject to challenge for 1 Labor-management relations in the railroad and Argument for Informing Employees of Their Rights a reasonable period to allow the employer and airline industries are governed by the Railway under the National Labor Relations Act,’’ 32 Harv. union to negotiate a collective-bargaining Labor Act, 45 U.S.C. 151 et seq. J. on Legis. 431, 433–434 (1995); Charles J. Morris, agreement. Dana Corp., 351 NLRB 434 (2007).

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Federal labor and employment laws in the NLRA and providing information In all, 7,034 comments were received not requiring employers routinely to pertaining to the enforcement of those from employers, employees, unions, post notices at their workplaces rights. 75 FR 80411. For the reasons employer organizations, worker informing employees of their statutory discussed more fully below, the Board assistance organizations, and other rights.6 Given this common practice of tentatively determined that the content concerned organizations and workplace notice-posting, it is of the notice should be the same as that individuals, including two members of reasonable for the Board to infer that a of the notice required under the Congress. The majority of comments, as posting requirement will increase Department of Labor’s notice posting well as Board Member Hayes’ dissent, employees’ awareness of their rights rule, 29 CFR part 471. Id. at 80412. Also, oppose the rule or aspects of it; many under the NLRA.7 Further support for as discussed at length below, the Board opposing comments contain suggestions that position is President Obama’s proposed that failure to post the notice for improvement in the event the Board recent Executive Order 13496, issued on would be found to be an unfair labor issues a final rule. Many comments, January 30, 2009, which stressed the practice—i.e., to interfere with, restrain, however, support the rule; a few of need for employees to be informed of or coerce employees in the exercise of those suggest changes to clarify or their NLRA rights. Executive Order their NLRA rights, in violation of strengthen the rule. The Board wishes to 13496 requires Federal contractors and Section 8(a)(1) of the NLRA. Id. at express its appreciation to all those who subcontractors to include in their 80414. The Board also proposed that took the time to submit thoughtful and Government contracts specific failure to post the notice could lead to helpful comments and suggestions provisions requiring them to post tolling of the 6-month statute of concerning the proposed rule.9 notices of employees’ NLRA rights. On limitations for filing unfair labor After careful consideration of the May 20, 2010, the Department of Labor practice charges, and that knowing and comments received, the Board has issued a Final Rule implementing the willful failure to post the notice could decided to issue a final rule that is order effective June 21, 2010. 75 FR be considered as evidence of unlawful similar to that proposed in the NPRM, 28368, 29 CFR part 471. motive in unfair labor practice cases. Id. but with some changes suggested by After due consideration, the Board The Board explained that the burden of commenters. The most significant has decided to require that employees of compliance would be minimal—the change in the final rule is the deletion all employers subject to the NLRA be notices would be made available at no of the requirement that employers informed of their NLRA rights. charge by the Board (both electronically distribute the notice via email, voice Informing employees of their statutory and in hard copy), and employers mail, text messaging or related rights is central to advancing the would only be required to post the electronic communications if they NLRA’s promise of ‘‘full freedom of notices in places where they customarily communicate with their association, self-organization, and customarily post notices to employees; employees in that manner. Other designation of representatives of their the rule would contain no reporting or significant changes include own choosing.’’ NLRA Section 1, 29 recordkeeping requirements. Id. at clarifications of the employee notice U.S.C. 151. It is fundamental to 80412. Finally, the Board expressed its detailing employee rights protected by employees’ exercise of their rights that position that it was not required to the NLRA and unlawful conduct on the the employees know both their basic prepare an initial regulatory flexibility part of unions; clarification of the rule’s rights and where they can go to seek analysis of the proposed rule under the requirements for posting notices in help in understanding those rights. Regulatory Flexibility Act, 5 U.S.C. 601 foreign languages; allowing employers Notice of the right of self-organization, et seq., and that the notice posting to post notices in black and white as to form, join, or assist labor requirement was not subject to the well as in color; and exemption of the organizations, to bargain collectively, to Paperwork Reduction Act, 44 U.S.C. U.S. Postal Service from coverage of the engage in other concerted activities, and 3501 et seq. Id. at 80415–80416. rule. The Board’s responses to the The Board invited comments on its to refrain from such activities, and of comments, and the changes in the rule legal authority to issue the rule, the the Board’s role in protecting those and in the wording of the required content of the notice, the requirements statutory rights is necessary to effectuate notice of employee rights occasioned by for posting the notice, the proposed the provisions of the NLRA. the comments, are explained below. (In The Board believes that the workplace enforcement scheme, the definitions of his dissent, Board Member Hayes raises itself is the most appropriate place for terms in the proposed rule, and on its a number of points that are also made communicating with employees about positions concerning the Regulatory in some of the comments. The Board’s their basic statutory rights as employees. Flexibility Act and the Paperwork responses to those comments should be Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, Reduction Act. The Board stated that understood as responding to the dissent 574 (1978) (‘‘[T]he plant is a particularly comments would be accepted for 60 as well.) 10 appropriate place for the distribution of days following the publication of the [NLRA] material.’’). NPRM in the Federal Register, or until Accordingly, and pursuant to its comments received are included in the numbers February 22, 2011. The Board received cited in text above, those numbers overstate rulemaking authority under Section 6 of 6,560 comments by February 22. somewhat the number of individuals, organizations, the NLRA, the Board proposed a new However, many late-filed comments etc. that submitted comments. rule requiring all employers subject to were also submitted, and the Board 9 Many comments charge that the Board is issuing the NLRA to post a copy of a notice decided to accept all comments that it the rule for political reasons, to encourage and 8 spread unionism, to discourage employers and advising employees of their rights under received on or before March 23. employees from engaging in direct communication and problem solving, to drive up union 6 See, e.g., Title VII of the Civil Rights Act of 8 March 23, 2011 was the date that the Board membership in order to retain agency staff, and 1964, 42 U.S.C. 2000e–10(a); Age Discrimination in downloaded all of the electronic and (pdf. versions even to ‘‘line [its] pockets.’’ The Board responds Employment Act, 29 U.S.C. 627; Family and of) hard copy comments it had received from that its reasons for issuing the rule are set forth in Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair http://www.regulations.gov and subsequently this preamble. Labor Standards Act, 29 CFR 516.4 (implementing uploaded into a text analytics tool for coding and 10 The Board majority’s reasoning stands on its 29 U.S.C. 211). 75 FR 80411. review. own. By its silence, the majority does not adopt any 7 As set forth in the NPRM, two petitions were A few commenters submitted their comments in characterization made by the dissent of the filed to address this anomaly. 75 FR 80411. both electronic and hard copy form. Because all majority’s rationale or motives.

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II. Authority ‘‘reference the legal authority under notion that broad grants of rulemaking which the rule is proposed.’’ 14 authority conveyed legislative Section 6 of the NLRA, 29 U.S.C. 156, The Board believes that these rulemaking power.20 Although the provides that ‘‘The Board shall have comments are in error because the Board had historically chosen to make authority from time to time to make, courts’ construction of other statutes’ policy by adjudications, the Supreme amend, and rescind, in the manner general rulemaking authority, as well as Court, consistent with the non-NLRA prescribed by the Administrative Section 6 in particular, fully support its case law, used a pair of Board Procedure Act [5 U.S.C. 553], such rules reading of this statutory provision. In enforcement cases to unanimously and regulations as may be necessary to fact, earlier this year, the Supreme Court emphasize the existence of the Board’s carry out the provisions of this Act.’’ As issued a decision in Mayo Foundation legislative rulemaking authority, NLRB discussed in detail below, the Board for Medical Education and Research v. v. Wyman-Gordon Co.21 and NLRB v. interprets Section 6 as authorizing the United States 15 (discussed more fully Bell Aerospace.22 rule. below), unanimously reaffirming the In 1991, after the Board enacted a rule principle that a general grant of involving health care units, the A. The Board’s Section 6 Rulemaking rulemaking authority fully suffices to Supreme Court unanimously upheld Authority confer legislative (or binding) that rule in American Hospital Association v. NLRB.23 The Supreme Numerous comments dispute the rulemaking authority upon an agency. Court found that that the general grant Board’s statutory authority to enact the Even prior to Mayo, a long line of both of rulemaking authority contained in proposed rule. Many note the fact that non-NLRA and NLRA cases supported reading Section 6 in the manner Section 6 of the Act ‘‘was the Board’s rulemaking is constrained suggested by the Board. Over forty years unquestionably sufficient to authorize by Congressional intent as evidenced in ago, in Thorpe v. Housing Authority,16 the rule at issue in this case unless its enabling statute. For instance, the the Supreme Court found that the limited by some other provision in the American Trucking Association quotes a expansive grant of rulemaking authority Act.’’ 24 As in AHA, there is no such Ninth Circuit case explaining that in Section 8 of the Housing Act was limitation here on the Board’s authority Section 6 ‘‘does not authorize the Board sufficient to grant legislative rulemaking to enact the proposed Rule, as explained to promulgate rules and regulations power to the Department of Housing further below. As Senator Tom Harkin which have the effect of enlarging its and Urban Development. The Court and Representative George Miller 25 authority beyond the scope intended by further noted that ‘‘[s]uch broad rule- emphasized in their comment, the 11 Congress,’’ and similarly, the Motor & making powers have been granted to Supreme Court in AHA examined ‘‘the Equipment Manufacturers Association numerous other federal administrative structure and the policy of the NLRA,’’ asserts, ‘‘A regulation cannot stand if it bodies in substantially the same in order to conclude: 12 is contrary to the statute.’’ The Board 17 language.’’ A few years later, in As a matter of statutory drafting, if agrees that it may not exercise its Mourning v. Family Publication Congress had intended to curtail in a rulemaking authority in a way contrary Services,18 the Court reaffirmed its particular area the broad rulemaking to that intended by Congress, but for the stance in Thorpe: authority granted in § 6, we would have reasons discussed below it also does not expected it to do so in language expressly Where the empowering provision of a believe that it has done so in this rule. describing an exception from that section or statute states simply that the agency may at least referring specifically to the section.26 Several comments assert that because ‘make * * * such rules and regulations as Thus, the Court could not have been NLRA Section 6 is written in general, may be necessary to carry out the provisions of this Act,’ we have held that the validity clearer that unless the Board is rather than specific, terms, the Board is ‘‘expressly’’ limited in some manner, not empowered to enact the proposed of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably Section 6 empowers the Board to make rule. For example, Associated Builders related to the purposes of the enabling ‘‘such rules and regulations as may be and Contractors argues that ‘‘the lack of legislation.’ 19 necessary to carry out the provisions of express statutory language under Following the Supreme Court’s lead, this Act.’’ This point was underscored Section 6 of the NLRA to require the key circuit decisions then extended the posting of a notice of any kind ‘is a 20 Nat’l Ass’n. of Pharm. Mfrs. v. FTC, 637 F.2d 877, 880 (2d Cir. 1981) (‘‘this generous construction strong indicator, if not dispositive, that 14 See 5 USC 553(b)(2). For this conclusion, the the Board lacks the authority to impose of agency rulemaking authority has become firmly Heritage Foundation cites Global Van Lines, Inc., v. entrenched’’); Nat’l Petroleum Refiners Ass’n v. 13 such a requirement * * *.’ ’’ And the ICC, 714 F.2d 1290, 1297–98 (5th Cir. 1983). But FTC, 482 F.2d 672, 686 (D.C. Cir. 1973) (‘‘plain, Heritage Foundation likewise argues Global Van Lines did not find that a general expansive language’’ of the rulemaking grant at statement of authority can never meet the APA’s that the Board’s reliance upon its issue, together with the ‘‘broad, undisputed requirements to specify the legal authority for the policies’’ meant to be furthered by Congress’s general Section 6 rulemaking authority rule. Instead, the Fifth Circuit held that that portion enactment of the Federal Trade Commission Act of does not suffice to meet the of the APA is violated when an agency chooses to 1914, sufficed to grant the FTC substantive Administrative Procedure Act’s rely on additional statutory provisions in support rulemaking authority). of its rule for the first time on appeal, and those 21 394 U.S. 759, 764 (1969) (plurality opinion of requirement that the NPRM must grounds do not appear elsewhere in the Fortas, J., joined by Warren, C.J., Stewart, J., and administrative record. See id. at 1298–99. Here, in White, J.), 770 (Black, J., Marshall, J., and Brennan, contrast, the grounds for the Board’s rule are clearly 11 Gen. Eng’g, Inc. v. NLRB, 341 F.2d 367, 374 J), 777, 779 (Douglas, J.), 783 n. 2 (Harlan, J.). laid out in subsection B, Statutory Authority, (1965). 22 below. 416 U.S. 267, 295 (1974) (majority opinion of 12 Citing United States v. O’Hagan, 521 U.S. 642, Powell, J., and dissenting opinion of White, J. (and 15 131 S.Ct. 704, 713–14 (2011). 673 (1997). However, the Supreme Court actually three other justices)). 16 393 U.S. 268 (1969). held there that an agency’s interpretation of its 23 499 U.S. 606 (1991) (AHA). 17 Id. at 277 n. 28 (citations omitted). The enabling statute must be given ‘‘controlling weight 24 Id. at 609–10 (emphasis added). unless it is arbitrary, capricious, or manifestly rulemaking grant there at issue provided that HUD 25 (Hereafter, Harkin and Miller.) Senator Harkin contrary to the statute.’’ (quoting Chevron U.S.A. may, ‘‘from time to time * * * make, amend, and is the Chairman of the Senate Committee on Health, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, rescind such rules and regulations as may be Education, Labor, and Pensions. Representative 844 (1984)). There, the Court upheld the rule and necessary to carry out the provisions of this Act,’’ Miller is Ranking Member on the House Committee found it was not arbitrary, capricious, or manifestly id. at 277, quite similar to Section 6 of the NLRA. on Education and the Workforce. contrary to the statute. 18 411 U.S. 356 (1973). 13 Quoting Member Hayes’ dissent, 75 FR 80415. 19 Id. at 369 (quoting Thorpe, 393 U.S. at 280–81). 26 Id. at 613 (emphasis added).

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in a Wagner Act-era Senate hearing, as rulings continue to fully support a broad place and time, that is not the case in cited by Americans for Limited construction of Section 6. the NLRA rights context, in which Government (ALG), in which it was Disputing this conclusion, ALG employees can just search the Internet acknowledged that the language of asserts that Section 6 was intended to be to find out more information. The Board Section 6 indeed grants ‘‘broad powers’’ used ‘‘primarily’’ for procedural agrees with the UFCW that posting a to the Board.27 rulemaking, and cites a Senate report notice is a minimally burdensome way And in January of this year, a from the Wagner Act’s legislative to ensure that employees receive certain unanimous Supreme Court, in Mayo history. That Senate report explains: information, although obviously, the Foundation for Medical Education and ‘‘[i]n no case do the rules have the force proposed notice will reach many more Research v. United States, affirmed this of law in the sense that criminal employers over a much longer period of key principle that a broad grant of penalties or fines accrue for their time than do election notices. And statutory rulemaking authority conveys violation, and it seems sufficient that ALG’s acknowledgment that a notice authority to adopt legislative rules.28 the rules prescribed must be ‘necessary posting in the workplace is in fact Mayo concerned in part the question of to carry out the provisions’ of the sometimes the most feasible means to how much deference a Treasury act.’’ 32 The Board disagrees. The cited inform employees of important Department tax regulation should language merely proclaims the obvious, information supports the Board’s belief, receive. In Mayo, an amicus argued that that no criminal penalties or fines explained below, that workplace notice the Treasury Department’s accrue for violating the Board’s rules. posting is a more efficient way of interpretation should receive less However, laws such as the NLRA that informing employees of their NLRA deference because it was issued under a do not impose criminal penalties or rights than relying on information general grant of rulemaking authority, as fines for their violation can also have available on the Internet. opposed to an interpretation issued the ‘‘force of law’’ (which is perhaps A few comments argue that the Board under a specific grant of authority.29 why the Senate report used the limiting is a law enforcement agency only, and The Court responded by first explaining phrase ‘‘in the sense of’’). The Supreme should not be engaging in rulemaking its earlier holding in U.S. v. Mead, that Court has previously recognized that for that reason. One comment asserts Chevron deference is appropriate ‘‘when final Agency orders under Sections 10 that ‘‘Congress did not intend to it appears that Congress delegated (e) and (f) of the Act, despite their non- ‘‘empower the NLRB to be a rulemaking authority to the agency generally to self enforcing nature, have ‘‘the force body, but rather an investigatory/ 36 make rules carrying the force of law, and effect of law.’’ 33 So too, do the enforcement agent of the NLRA.’’ The and that the agency interpretation Board’s rules have the force and effect Board responds that by enacting Section claiming deference was promulgated in of law, as held by the Supreme Court in 6, Congress plainly and explicitly the exercise of that authority.’’ 30 Then, AHA.34 intended to, and did, ‘‘empower the in significant part, the Court observed: Several comments discuss whether NLRB to be a rulemaking body.’’ And, Board Rule 103.20, which mandates the as shown above, AHA conclusively Our inquiry in that regard does not turn on found that the Board is empowered to whether Congress’s delegation of authority posting of an election notice in a was general or specific. workplace three working days prior to a use its rulemaking powers, as the Court representation election, should be had previously indicated in Wyman- * * * * * Gordon and Bell Aerospace.37 The Department issued the full-time considered analogous to the proposed A joint comment submitted by employee rule pursuant to the explicit rule. The United Food and Commercial Douglas Holtz-Eakin and Sam Batkins authorization to ‘‘prescribe all needful rules Workers International Union (UFCW) argues against the Board’s assertion of and regulations for the enforcement’’ of the comments that the election rule is, like Section 6 authority here by asserting Internal Revenue Code. 26 U.S.C. 7805(a). We the proposed rule, only minimally have found such ‘‘express congressional that ‘‘the Supreme Court has authorizations to engage in the process of burdensome and further noted that it 35 circumscribed NLRB rulemaking in the rulemaking’’ to be ‘‘a very good indicator of has never been challenged. ALG past: ‘The deference owed to an expert delegation meriting Chevron treatment.’’ 31 disagrees that the election rule should tribunal cannot be allowed to slip into be considered analogous here, because And so, all nine members of the a judicial inertia which results in the although in the election context a notice Supreme Court agreed on the following unauthorized assumption by an agency posting is the most feasible means to key principle: an express, albeit general, of major policy decisions properly made inform employees about an upcoming grant of rulemaking authority is fully by Congress.’ ’’ However, that comment election that is occurring at a specific sufficient for an agency to receive neglects to provide the citation for that quotation, American Ship Building Co. Chevron deference for its rulemaking. It 32 See Comparison of S. 2926 (73d Congress) and 38 follows that a broad grant of rulemaking S. 1958 (74th Congress) 24 (Comm. Print 1935), v. NLRB, which was not a rulemaking authority will suffice for the agency to reprinted in 1 Legislative History of the National case but an adjudication. In any event, engage in legislative rulemaking in the Labor Relations Act, 1935, (1949) at 1349. the Board does not agree that this rule first place. Thus, the Supreme Court’s 33 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, presumes to make a major policy 153–54 (1975) (ordering disclosure of such Agency decision properly made by Congress opinions under the FOIA, and quoting legislative 27 Statement of Donald A. Callahan, U.S. Senate history of the FOIA to that effect, H.R. Rep. No. alone. As explained in subsection B, Committee on Education and Labor, March 29, 1497, p. 7, U.S. Code Cong. & Admin. News, 1966, 1935, Legislative History of the National Labor p. 2424). 36 Comment of Manufacturers’ Association of Relations Act, U.S. Government Printing Office, 34 499 U.S. at 609–10. But even if one were to South Central Pennsylvania. 1949, p. 2002. construe the report in the way advocated by the 37 In National Petroleum Refiners Ass’n v. FTC, 28 131 S. Ct. 704, 713–14 (2011). comment, such reports themselves do not have the 482 F.2d 672 (D.C. Cir. 1973), the court rejected the 29 Id. at 713. force and effect of law, see Lincoln v. Vigil, 508 U.S. argument that the FTC’s prosecutorial functions 30 Id. (quoting United States v. Mead, 533 U.S. 182, 192 (1993); AHA, 499 U.S. at 616, and thus at rendered it unsuitable for issuing rules. By way of 218, 226–27 (2001)); see also Chevron, 467 U.S. at best are only potential evidence of legislative intent. example, it noted that the NLRB is similar to the 842–43 (announcing two-part framework for 35 However, it is incorrect that the rule has never FTC in its methods of adjudication and determining whether courts should grant deference been challenged; it has been challenged and enforcement, but the Supreme Court had repeatedly to agency interpretations of enabling statutes). upheld. See Pannier Corp. v. NLRB, 120 F.3d 603, encouraged the Board to utilize its rulemaking 31 Mayo, 131 S. Ct. at 713–14 (emphasis added 606–07 (6th Cir. 1997) (rejecting an as-applied powers. Id. at 684. and citations omitted). challenge to Rule 103.20). 38 380 U.S. 300, 318 (1965).

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Statutory Authority, below, the Board ‘‘reasonably related to the purposes of therefore sets forth the core rights of believes that it has been Congressionally the enabling legislation.’’ 42 For the employees ‘‘to self-organization’’; ‘‘to authorized to make this regulatory reasons shown below, that standard is form, join, or assist labor organizations’’; decision in the interests of carrying out more than met in the present rule. ‘‘to bargain collectively’’; and ‘‘to engage the provisions of the Act. in other concerted activities’’; as well as B. The Board’s Statutory Authority To Many comments argue that the Board the right ‘‘to refrain from any or all such Issue This Rule should heed the use of the word activities.’’ Id. § 157. Section 8 defines ‘‘necessary’’ in Section 6. For instance, The National Labor Relations Act and prohibits union and employer the Portland Cement Association does not directly address an employer’s ‘‘unfair labor practices’’ that infringe on comments that Section 6 requires the obligation to post a notice of its employees’ Section 7 rights, id. § 158, Board to demonstrate that: (1) The employees’ rights arising under the Act and Section 10 authorizes the Board to specific rule being proposed is, in fact, or the consequences an employer may adjudicate unfair labor practice claims, necessary, and (2) the adoption of the face for failing to do so. However, as id. § 160, subject to the NLRA’s proposed rule will carry out one or more stated, NLRA Section 6 empowers the procedural six-month statute of specific provisions of the Act.39 The Board to promulgate legislative rules ‘‘as limitations, see Zipes v. Trans World Board believes, for the reasons may be necessary to carry out the Airlines, Inc., 455 U.S. 385, 395 n.11 expressed in subsection C, Factual provisions’’ of the Act. 29 U.S.C. 156. A (1982). Finally, Section 9 authorizes the Support, below, that the requisite determination of necessity under Board to conduct representation showing of necessity has been made. Section 6 made by the Board, as elections and issue certifications. 29 And, as explained below, the adoption administrator of the NLRA, is entitled to U.S.C. 159. of the proposed rule is consistent with deference. See Ragsdale v. Wolverine Notably, the NLRA does not give the Section 1 and will help effectuate World Wide, Inc., 535 U.S. 81, 86 (2002). Board or its General Counsel roving Sections 7, 8, 9 and 10 of the NLRA. Furthermore, even in the absence of investigatory powers. Although the The Board, however, disagrees with express rulemaking authority, ‘‘the Board is specifically empowered to the Motor & Equipment Manufacturers power of an administrative agency to ‘‘prevent’’ unfair labor practices, id. Association’s assertion based upon the administer a congressionally created § 160(a), ‘‘[t]he Board may not act until case of West Virginia State Board of * * * program necessarily requires the an unfair labor practice charge is filed Education v. Barnette 40 that the Board formulation of policy and the making of * * * alleging a violation of the Act.’’ needs to show ‘‘a grave and immediate rules to fill any gap left, implicitly or 2 The Developing Labor Law 2683 (John danger’’ before enacting a rule. First, explicitly, by Congress.’’ Morton v. Ruiz, E. Higgins, Jr. ed., 5th ed. 2006). In that case held that that very rigorous 415 U.S. 199, 231 (1974). Under the addition, certification ‘‘procedures are standard of review is required only well-known test articulated by the set in motion with the filing of a where a First Amendment freedom is Supreme Court in Chevron U.S.A. Inc. v. representation petition.’’ Id. at 2662. In alleged to have been infringed. The Natural Resources Defense Council, both instances, the initiating document Court further noted that where the First Inc., 467 U.S. 837 (1984), courts will is filed by a private party. Id. at 2683 Amendment is not implicated, the defer to the Board’s reasonable (citing 29 CFR 102.9); id. at 2662–63 government may regulate an area so interpretation of a gap left by Congress (citing 29 U.S.C. 159(c)(1)(A), (B), and in the NLRA. long as it has a ‘‘rational basis’’ for (e)(1)). An examination of the provisions of doing so. As explained in subsection B, Enforcement of the NLRA and the whole law demonstrate how the effectuation of Congress’s national labor Statutory Authority, below, this rule notice-posting rule is a legitimate infringes upon no First Amendment policy therefore depend on the exercise of both legislative rulemaking existence of outside actors who are not interests, and consequently, the rule authority under Section 6 and implied should be judged on a standard similar only aware of their rights but also know gap-filling authority under Chevron, 467 where they may seek to vindicate them to the ‘‘rational basis’’ test laid out in U.S. at 843. Section 1 of the NLRA Barnette. It was in fact just such a within appropriate timeframes. The explains that Congress deliberately Department of Labor made a similar deferential standard which the Supreme chose the means of ‘‘encouraging the Court used to examine the Board’s finding in an analogous rulemaking practice and procedure of collective proceeding under the Fair Labor health care rule in AHA. There, the bargaining’’ and ‘‘protecting the exercise Court found that even if it read Section Standards Act: ‘‘effective enforcement of of workers of full freedom of the [FLSA] depends to a great extent 9 to find any ambiguity, it still would association, self-organization, and have deferred to the Board’s ‘‘reasonable upon knowledge on the part of covered designation of representatives of their employees of the provisions of the act interpretation of the statutory text,’’ and own choosing’’ in order to combat the found the Board authorized under and the applicability of such provisions substantial burdens on commerce to them, and a greater degree of Sections 6 and 9 to enact the health care caused by certain employer and labor bargaining unit rule at issue.41 No compliance with the act has been union practices as well as by the effected in situations where employees ‘‘grave and immediate danger’’ was inherent ‘‘inequality of bargaining found to be required prior to the Board are aware of their rights under the law.’’ power between employees * * * and 14 FR 7516, 7516 (Dec. 16, 1949). Given enacting that rule. This ruling was also employers.’’ 29 U.S.C. 151.43 Section 7 consistent with the Supreme Court’s the direct relationship between employees’ timely awareness of their earlier holdings in Thorpe and 42 Mourning, 411 U.S. at 369 (quoting Thorpe, 393 Mourning, in which regulations U.S. at 280–81). rights under the NLRA and the Board’s promulgated under broadly phrased 43 These regulations are entirely compatible with grants of authority needed to be only the national labor policy, as expressed in Section necessary effect of burdening or obstructing 1, ‘‘to eliminate the causes of certain substantial commerce,’’ id., depends on workers’ knowledge of obstructions to the free flow of commerce and to their rights and the protections provided by the 39 See also comment of Americans for Limited mitigate and eliminate these obstructions when NLRB. The Board therefore rejects the argument of Government, citing to AFL–CIO v. Chao, 409 F.3d they have occurred.’’ 29 U.S.C. 151 (fifth the Manufacturer’s Association of South Central 377, 391 (D.C. Cir. 2005) for the same principle. paragraph). As explained below, the Board’s ability Pennsylvania that both the notice-posting rule and 40 319 U.S. 624, 639 (1943). to ‘‘eliminate’’ the causes of labor strife and the Board’s general assertion of rulemaking 41 499 U.S. at 614. depressed wage rates, ‘‘which have the intent or authority are inconsistent with Section 1.

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ability to protect and enforce those provisions of the Act to the complexities of regulate beyond the express substantive rights, this rule is ‘‘necessary’’ for industrial life,’’ and its special competence in directives of the statute, so long as the purposes of Section 6. this field is the justification for the deference statute is not contradicted.’’) (citing Aside from the rule’s manifest accorded its determination. Mourning). If it did, then the Board’s necessity, the notice posting NLRB v. J. Weingarten, Inc., 420 U.S. longstanding rule mandating that requirement fills a Chevron-type gap in 251, 266 (1975) (citations omitted). employers post an election notice three the NLRA’s statutory scheme. Thus, as Consistent with this understanding of days before a representation election discussed, the purpose of Section 1, as the Board’s role, the notice-posting would be subject to challenge on that implemented in Sections 7 and 8, is to regulations represent an attempt to ground. See 29 CFR 103.20; see also encourage the free exercise and ‘‘adapt the Act’’ in light of recent Pannier Corp., Graphics Div. v. NLRB, enforcement of the Act’s provisions, and realities and ‘‘the Board’s cumulative 120 F.3d 603, 606–07 (6th Cir. 1997) fulfillment of that purpose depends on experience.’’ Id. The rule is wholly (rejecting an as-applied challenge to the private initiative of employees and consistent with the aims of the NLRA, § 103.20). Furthermore, under American employers to commence Board and the ‘‘need’’ for it now is heightened Hospital Association, the Board’s representation proceedings pursuant to given the ‘‘changing patterns of exercise of its broad rulemaking Section 9 and Board unfair labor industrial life.’’ Id. authority under Section 6 is presumed practice proceedings pursuant to For all these reasons, this rule is to be authorized unless elsewhere in the Section 10. The effective working of the entitled to deference regardless of how Act there is ‘‘language expressly NLRA’s administrative machinery it is characterized because it is describing an exception from that therefore presupposes that workers and ‘‘reasonably related to the purposes of section or at least referring specifically their employers have knowledge of the the enabling legislation,’’ Thorpe, 393 to the section.’’ 499 U.S. at 613. Section rights afforded by the statute and the U.S. at 280–81, and constitutes a 10 does not refer to the Board’s Section means for their timely enforcement. The ‘‘ ‘reasonable interpretation’ of the 6 authority. statute, however, has no provision with enacted text,’’ Mayo, 131 S. Ct. at 714 Some comments, such as those of the respect to making that knowledge (quoting Chevron, 467 U.S. at 844). Council on Labor Law Equality available, a subject about which the In response to the NPRM, a number of (COLLE), contend that the Board has no statute is completely silent. arguments have been made challenging authority whatsoever to administer the This statutory gap has always been the Board’s statutory authority to NLRA unless a representation petition present but was of less significance in promulgate the notice posting rule. As or unfair labor practice charge has been earlier years when the density of union explained below, the Board does not filed under Sections 9 or 10, organization was greater, since, as is find merit in any of these arguments. respectively. The Board declines to widely recognized, unions have been a 1. Limitations on the Board’s adopt such a narrow view of its own traditional source of information about Rulemaking Authority Implied by authority. Certainly, the Board cannot the NLRA’s provisions. See Lechmere, Sections 9 and 10 of the Act issue certifications or unfair labor Inc. v. NLRB, 502 U.S. 527, 531–32 practice orders via rulemaking Of the comments that address the proceedings. But that is not what this (1992) (reaffirming that the Section 7 Board’s statutory authority to issue this rights of employees interested in union rule does. As explained above, by rule, many express agreement with the promulgating the notice-posting rule, organization depend to some extent on dissenting views of Member Hayes that their having access to unions); Harlan the Board is taking a modest step that were published in the NPRM. Member is ‘‘necessary to carry out the Fuel Co., 8 N.L.R.B. 25, 32 (1938) Hayes criticized the basis for the rule (holding that the rights guaranteed to provisions’’ of the Act, 29 U.S.C. 156, and questioned the Board’s statutory and that also fills a statutory gap left by employees by Section 7 include ‘‘full authority to promulgate and enforce it. freedom to receive aid, advice and Congress in the NLRA. See 75 FR 80415. He specifically Moreover, the argument advanced by information from others concerning referred to Section 10 as an obstacle to [their self-organization] rights’’); cf. COLLE and others fails to appreciate the proposed rule, because it that the Board’s authority to administer Chamber of Commerce of the United ‘‘indicate[d] to [him] that the Board the Act is not strictly limited to those States v. Brown, 554 U.S. 60, 68 (2008) clearly lacks the authority to order means specifically set forth in the (observing that Section 7 ‘‘implies an affirmative notice-posting action in the NLRA. Rather, as the Supreme Court has underlying right to receive absence of an unfair labor practice recognized, the NLRA impliedly information’’). Moreover, as rates of charge filed by an outside party.’’ Id. authorizes the Board to take appropriate unionization have declined, employees Many comments submitted in measures ‘‘to prevent frustration of the are less likely to have experience with response to the NPRM, such as those of purposes of the Act.’’ NLRB v. Nash- collective bargaining or to be in contact the Texas Association for Home Care & Finch Co., 404 U.S. 138, 142 (1971). By with other employees who have had Hospice and those of the Independent way of example, the Supreme Court such experience. The statutory gap is Bakers Association, interpret Section 10 pointed out that its decisions had thus now important to the Board’s to prohibit the Board from ordering any recognized the Board’s implied administration of the NLRA and its role affirmative act that does not address the authority to petition for writs of in enforcing employees’ rights. consequences of an unfair labor prohibition against premature As the Supreme Court has observed, practice. Although this proposition may invocation of the review jurisdiction of The responsibility to adapt the Act to be true when the Board acts through the courts of appeals, see In re NLRB, changing patterns of industrial life is adjudication—the administrative 304 U.S. 486, 496 (1938); to institute entrusted to the Board. * * * It is the function to which Section 10 directly contempt proceedings for violation of province of the Board, not the courts, to applies—it does not perforce apply enforced Board orders, see determine whether or not the ‘‘need’’ [for a Board rule] exists in light of changing when the Board specifies affirmative Amalgamated Util. Workers v. Con. industrial practices and the Board’s requirements via rulemaking under Edison Co., 309 U.S. 261 (1940); and to cumulative experience in dealing with labor- Section 6. See Clifton v. FEC, 114 F.3d file claims in bankruptcy for Board- management relations. For the Board has the 1309, 1312 (1st Cir. 1997) (‘‘Agencies awarded backpay, see Nathanson v. ‘‘special function of applying the general are often allowed through rulemaking to NLRB, 344 U.S. 25 (1952). Relying on

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that precedent in Nash-Finch Co., the employer from telling the truth about not susceptible to a First Amendment Supreme Court concluded that the the impact a union might pose to his challenge.44 Board also had implied authority ‘‘to business.’’ The Board rejects these The Board is equally satisfied that the enjoin state action where [the Board’s] arguments. rule does not violate NLRA Section 8(c), 29 U.S.C. 158(c), which creates a safe federal power preempts the field.’’ 404 As an initial matter, requiring a notice harbor for noncoercive speech in the U.S. at 144. Like these judicially of employee rights to be posted does not unfair labor practice area. Specifically, recognized powers, the notice-posting violate the First Amendment, which Section 8(c) shields from unfair labor requirement that is the subject of this protects the freedom of speech. Indeed, rulemaking has not been specifically practice liability ‘‘[t]he expressing of this rule does not involve employer provided for by Congress. But the cited any views, argument or opinion,’’ speech at all. The government, not the cases demonstrate that Congress need provided that ‘‘such expression contains employer, will produce and supply not expressly list a power for the Board no threat of reprisal or force or promise posters informing employees of their to legitimately exercise it. Indeed, the of benefit.’’ Id. (emphasis added). A notice-posting requirement is not even legal rights. The government has sole government poster containing accurate, an implied power of the Board in the responsibility for the content of those factual information about employees’ same sense as those previously posters, and the poster explicitly states legal rights ‘‘merely states what the law mentioned. Rather, it is the product of that it is an ‘‘official Government requires.’’ Lake Butler, 519 F.2d at 89. the Board’s exercise of express Notice’’; nothing in the poster is For that reason, ‘‘[t]he posting of the rulemaking authority and inherent gap- attributed to the employer. In fact, an notice does not by any stretch of the filling authority, both of which have employer has no obligation beyond imagination reflect one way or the other been delegated to the Board by putting up this government poster. on the views of the employer.’’ Id.45 Congress. These same considerations were present in Lake Butler Apparel Co. v. Secretary 44 The decision of the intermediate state court in 2. The First Amendment and Section of Labor, 519 F.2d 84, 89 (5th Cir. 1975), Smith v. Fair Employment & Housing Commission, 8(c) of the NLRA where the Fifth Circuit rejected as 30 Cal. Rptr. 2d 395 (Cal. Ct. App. 1994), rev’d on other grounds, 913 P.2d 909 (Cal. 1996), lends no A handful of commenters argue that ‘‘nonsensical’’ an employer’s First support to arguments challenging these regulations the notice-posting requirement violates Amendment challenge to the on First Amendment grounds. There, the California the First Amendment to the Occupational Safety and Health Act Court of Appeal held that a landlord’s right to Constitution, Section 8(c) of the NLRA, requirement that it post an ‘‘information freedom of speech was ‘‘implicate[d],’’ id. at 401– 02, by a state fair housing agency’s remedial order or both. For example, the Center on sign’’ similar to the one at issue here. As requiring her to sign, post, and distribute notices National Labor Policy, Inc. maintains in Lake Butler, an employer subject to ‘‘setting out the provisions of [the fair housing that ‘‘compelling an employer to post its the Board’s rule retains the right to statute], the outcome of th[e] case, and the property with a Notice that asserts the statement that [she] practices equal housing ‘‘differ with the wisdom of * * * this opportunity.’’ 913 P.2d at 914. The Smith case is statutory ‘rights’ and employer requirement even to the point * * * of not persuasive here because the notice at issue in obligations, runs counter to challenging its validity. * * * But the Smith would not merely have set forth the rights constitutional views long protected by First Amendment which gives him the of prospective buyers or renters but also would the Supreme Court.’’ The Center also have contained a signed statement from the full right to contest validity to the bitter landlord which would have given the false argues that the ‘‘proposed poster would end cannot justify his refusal to post a appearance that she agreed with the state’s fair impede the employer’s statutory right to notice * * * thought to be essential.’’ housing ‘‘concepts and rules,’’ despite her religious express itself on its own property.’’ Id.; see also Stockwell Mfg. Co. v. Usery, beliefs to the contrary. 30 Cal. Rptr. 2d at 401. That Along these same lines, the National feature of the case has no parallel here. Here, by 536 F.2d 1306, 1309–10 (10th Cir. 1976) contrast, employers are not required to sign the Right to Work Legal Defense (dicta) (rejecting a constitutional informational notice, and as noted, nothing in the Foundation, Inc. and others on whose challenge to a requirement that an poster is attributed to them. The Board further notes behalf it writes contend that ‘‘the employer post a copy of an OSHA that the Smith decision is not authoritative because it was superseded by the California Supreme Board’s proposal for forced speech citation). favoring unionization directly conflicts Court’s grant of review in that case. See 913 P.2d But even if the Board’s notice-posting at 916 n.*. with the First Amendment and 45 requirement is construed to compel The Employers Association of New Jersey is longstanding federal labor policy under therefore off the mark when it argues that the Section 8(c) that employers and unions employer speech, the Supreme Court notice-posting requirement is preempted under the should be able to choose themselves has recognized that governments have principles of Lodge 76, International Ass’n of ‘‘substantial leeway in determining Machinists & Aerospace Workers v. Wisconsin what to say about unionization.’’ These Employment Relations Commission, 427 U.S. 132 concerns were echoed by the National appropriate information disclosure (1976), as an attempt to regulate employer speech Association of Wholesaler-Distributors. requirements for business ‘‘about unionization and collective bargaining.’’ As In addition, two attorneys affiliated with corporations.’’ Pac. Gas & Elec. Co. v. explained above, the employer’s choice whether to Pub. Utils. Comm’n, 475 U.S. 1, 15 n.12 express its own views, arguments, or opinions is Pilchak Cohen & Tice, P.C., which they wholly unaffected by a requirement to post a describe as ‘‘a management-side labor (1985). This discretion is particularly government-provided notice summarizing what the and employment law firm,’’ argue that wide when the government requires law requires. Indeed, consistent with both the notice-posting requirement information disclosures relevant to the Machinists and the policy of Section 8(c) ‘‘‘to ‘‘tramples upon employers’ Free Speech employment relationship. Thus, as the encourage free debate on issues dividing labor and D.C. Circuit has observed, ‘‘an management,’’’ Brown, 554 U.S. at 67 (quoting Linn rights by regulating the content of v. United Plant Guard Workers, Local 114, 383 U.S. information that employers are required employer’s right to silence is sharply 53, 62 (1966)), employers remain free under this to tell employees and by compelling constrained in the labor context, and rule—as they have in the past—to express them to post the Notice containing pro- leaves it subject to a variety of burdens noncoercive views regarding the exercise of these to post notices of rights and risks.’’ rights as well as others. See, e.g., United Techs. union NLRA rights, when it is almost Corp., 274 N.L.R.B. 609, 609, 618–20, 624–26 assuredly not the employers’ prerogative UAW-Labor Employment & Training (1985), enforced sub nom. NLRB v. Pratt & Whitney to do so.’’ The Independent Association Corp. v. Chao, 325 F.3d 360, 365 (D.C. Air Craft Div.v., United Techs. Corp., 789 F.2d 121 of Bakers goes further and characterizes Cir. 2003) (UAW v. Chao) (citing Lake (2d Cir. 1986); Warrensburg Bd. & Paper Corp., 143 Butler, 519 F.2d at 89). Accordingly, the N.L.R.B. 398, 398–99 (1963), enforced, 340 F.2d 920 the regulation as an unconstitutional (2d Cir. 1965). For this reason, the Board finds it ‘‘gag order’’ that ‘‘prohibits the Board’s notice-posting requirement is unnecessary to adopt the proposal made by the

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

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16, 1949), promulgating 29 CFR 516.18, hiring hall agreement did not encourage does the Board without Section 10(c) the predecessor to 29 CFR 516.4. or discourage union membership by authority.’’ The Board rejects this ‘‘discrimination.’’ See id. at 674–75. By argument because it fails to recognize 5. The Teamsters 357 Decision faulting the union for not including in the important substantive difference In response to the NPRM, the U.S. its agreement clauses that the Board’s between the conduct at issue in Chamber of Commerce submitted a Mountain Pacific rule had declared Lechmere, which involved ‘‘ ‘trespassory comment that questions ‘‘how the necessary to prevent ‘‘ ‘unlawful organizational activity’ ’’ by proposal can be said to be consistent encouragement of union membership,’ ’’ nonemployees on the employer’s with’’ the Supreme Court’s decision in id. at 671 (quoting Mountain Pacific grounds, id. at 535 (quoting Sears, Local 357, International Brotherhood of Chapter, 119 NLRB at 897), the Board Roebuck & Co. v. San Diego Dist. Teamsters v. NLRB, 365 U.S. 667 (1961). had attempted to regulate hiring halls in Council of Carpenters, 436 U.S. 180, 205 Specifically, the Chamber accuses the a manner that was facially inconsistent (1978)), and the regulations here which Board of ignoring the Court’s with the discrimination requirement involve nothing more than the admonition in that case warning that embedded in NLRA Section 8(a)(3) and employer’s responsibility to post an ‘‘[w]here * * * Congress has aimed its (b)(2). Accordingly, the Chamber makes official notice of legal rights. sanctions only at specific discriminatory too much of the Court’s statement The Portland Cement Association practices, the Board cannot go farther prohibiting the Board from (PCA) comments that the Board’s failure and establish a broader, more pervasive ‘‘establish[ing] a broader, more to place the three law review articles regulatory scheme.’’ Id. at 675. The pervasive regulatory scheme’’ when that the Board cited to the NPRM 47 in Chamber reads this statement out of ‘‘specific discriminatory practices’’ have the administrative docket is arbitrary context. already been outlawed. Id. at 676. By and capricious. Although the Board To understand why the Board that, the Court simply meant to remind provided the legal citations for these disagrees with the Chamber’s view, the Board that it may not articles, PCA believes that it should not further explanation of Teamsters 357 is administratively amend Section 8(a)(3) have to pay an electronic legal reporting necessary. In that case, the Supreme and (b)(2) to prohibit nondiscriminatory service to access the material. The Board Court rejected the Board’s conclusion activity that might be viewed as has placed these articles in the hard that a union had committed an unfair undesirable because those statutory copy docket, but has not uploaded these labor practice by operating an exclusive sections are clearly aimed only at articles to the electronic docket at hiring hall pursuant to an agreement ‘‘specific discriminatory practices.’’ http://www.regulations.gov, because that contained a nondiscrimination 46 Id. such an action could violate copyright clause but not three additional clauses This rulemaking does not involve laws.48 that the Board had previously declared those provisions of the NLRA that Finally, one comment contends that in its Mountain Pacific decision to be Teamsters 357 addressed. Accordingly, requiring employers to set aside wall necessary to prevent ‘‘ ‘unlawful the Board does not view that case as space for posting the notices violates the encouragement of union membership.’ ’’ controlling the outcome of this Takings Clause of the Fifth Amendment Id. at 671 (quoting Mountain Pacific proceeding. to the U.S. Constitution. The comment Chapter, 119 NLRB 883, 897 (1958)). cites no authority for this proposition, The Court first noted that Congress had 6. Miscellaneous Matters which would seem to invalidate the examined the operation of hiring halls The Center on National Labor Policy, notice-posting requirements under all and had decided not to ban them. Id. at Inc., argues that the Board ‘‘must be 673–74. Next, the Court observed that mindful of the Supreme Court’s other Federal and state workplace NLRA Section 8(a)(3) ‘‘ ‘does not outlaw admonition in Lechmere[, Inc.] v. NLRB, statutes. Accordingly, the Board rejects all encouragement or discouragement of 502 U.S. 527, 534 (1992), that an this contention. In conclusion, the Board believe that membership in labor organizations; only employer possesses First Amendment such as is accomplished by rights to its property.’’ The Board it has fully demonstrated that it discrimination is prohibited.’ ’’ Id. at disagrees that the property rights possesses sufficient statutory authority 674–75 (emphasis added) (quoting discussed in Lechmere emanate from to enact the final rule, and therefore that Radio Officers’ Union v. NLRB, 347 U.S. the First Amendment, see Thunder it is not ‘‘in excess of statutory 17, 42–43 (1954)). Since the hiring hall Basin Coal Co. v. Reich, 510 U.S. 200, jurisdiction’’ or ‘‘short of statutory agreement at issue in Teamsters 357 217 n.21 (1994) (‘‘The right of right’’ within the meaning of the ‘‘specifically provide[d] that there will employers to exclude union organizers Administrative Procedure Act, Section be no discrimination * * * because of from their private property emanates 706(2)(C), 5 U.S.C. 706(2)(C). the presence or absence of union from state common law * * *.’’), and to C. Factual Support for the Rule membership,’’ the Court determined the extent that the Center’s reference to As stated above, the Board found that that the Board was attempting to protect the First Amendment asserts a conflict the notice posting rule is needed against nondiscriminatory between these regulations and because it believes that many employees encouragement of union membership. employers’ right to free speech, that are unaware of their NLRA rights and Id. at 675. This was impermissible argument is rejected for reasons therefore cannot effectively exercise because ‘‘[w]here * * * Congress has explained above. After quoting those rights. The Board based this aimed its sanctions only at specific extensively from Lechmere, the Center finding on several factors: the discriminatory practices, the Board next contends that ‘‘if a union has no comparatively small percentage of cannot go farther and establish a access to company property to private sector employees who are broader, more pervasive regulatory communicate with employees, neither represented by unions and thus have scheme.’’ Id. at 676. ready access to information about the Properly understood, Teamsters 357 46 To the extent that the Board espoused a does not preclude the Board from contrary view of Teamsters 357 in a prior rulemaking proceeding, that view is abandoned. See 47 See NPRM, 75 FR 80411 and fn. 3 above. issuing the notice posting rule. The Union Dues Regulation, 57 FR 43635, 43637–38 48 The Board has also placed the other non-case union had not committed an unfair (Sept. 22, 1992), withdrawn, 61 FR 11167 (Mar. 19, materials cited to in this final rule into the hard labor practice in that case because its 1996). copy docket.

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NLRA; the high percentage of —Membership is down because so many of its public information efforts.59 One immigrants in the labor force, who are the good things unions fought for a long comment urges the Board to conduct a likely to be unfamiliar with workplace time ago have been legislated, at either the study to ascertain current employees’ Federal or State level, and so the need for rights in the United States; studies unions has declined.51 level of NLRA knowledge before indicating that employees and high —[M]ost employees are very aware of their imposing a notice posting requirement. school students about to enter the work rights to unionize and many employees In contrast, as discussed in more force are generally uninformed about choose not to do so because of the rights detail below, numerous comments from labor law; and the absence of a they already have under our federal and individuals, union organizers, attorneys requirement that, except in very limited state laws. representing unions, and worker circumstances, employers or anyone —In fact, one could say that the NLRA and assistance organizations agree with the else inform employees about their other employment laws have succeeded to Board that most employees are the degree that unions are NOT necessary NLRA rights. 75 FR 80411. in today’s work environment.52 unfamiliar with their NLRA rights. A large number of comments contend Immigrant rights organizations state that that the Board failed to demonstrate the A few comments question the Board’s immigrant workers largely do not know necessity of the notice posting rule. belief that immigrant workers are about their rights. unfamiliar with their workplace After careful consideration of the They challenge each of the premises 53 (except the last) underlying the Board’s rights. Several comments argue that comments on both sides of this issue, belief that employees are generally the NLRA has been in effect for nearly the Board believes that many employees 76 years, which is sufficient time for unaware of their NLRA rights. are unaware of their NLRA rights and employees to learn about its Many comments assert that, contrary that a notice posting requirement is a provisions.54 to the Board’s belief, the right to join a reasonable means of promoting greater A number of comments argue that the knowledge among employees. To the union is widely known and understood studies cited in the NPRM are from the by employees. For example: extent that employees’ general level of late 1980s and early 1990s and are knowledge is uncertain, the Board 55 —I believe the majority of employees know therefore out of date (and also, some believes that the potential benefit of a about labor unions and how to form a 56 say, poorly supported). Moreover, notice posting requirement outweighs union, and this poster is unnecessary.49 those studies, whatever their value —[I]t is hard to imagine that there are many the modest cost to employers. Certainly, when published, predate the wide use the Board has been presented with no in the US who do not know that they can of the internet. Now there are many try to join a union. evidence persuasively demonstrating —The fact of the matter is that if a group of online sources of information that knowledge of NLRA rights is employees are upset enough with their concerning unions and union widespread among employees. current management that they feel they organizing, including the Board’s own The comments asserting that the right need union representation, they already Web site. According to these comments, to join a union is widely known cite know what they need to do as a recourse. it should not be necessary to require little, if any, support for that assertion. And if they do not immediately know how employers to post notices of NLRA By contrast, many of the comments to respond, there are plenty of resources for rights because employees who are contending that employees are them.50 interested in learning about unions can —We, the employees, know the unions exist, unfamiliar with their NLRA rights base quickly and easily find such their statements on personal experience * * * If the employees want to know about information online.57 One comment, unions, they should research it themselves. or on extensive experience representing like some others, argues that ‘‘If it is so It is not as though the information is not or otherwise assisting employees. Many readily available. important that employees know their individual workers, commenting on the rights under the NLRB it should be the rule, indicate their personal experiences Some posit that comparatively few government or union whose with the lack of NLRA knowledge and private sector employees are responsibility it is to inform them.’’ 58 concurrent strong support for the rule. represented by unions not because Two comments suggest that the Board For example: employees do not know that they can conduct a mass media informational join unions, but because they have campaign to that end, and one notes that —Even though most of my coworkers and consciously rejected union the Board has in fact recently increased supervisors were highly intelligent people, representation for any number of it is my experience that most workers are almost totally unaware of their rights under reasons (e.g., they do not believe that 51 Comment of Tecton Products. the NLRA. 52 unions can help them; they do not want Comment of Printing and Imaging Association —Knowing that there is a federal agency out of MidAmerica (Printing and Imaging Ass’n). to pay union dues; they deem union there that will protect the rights of working representation unnecessary in light of 53 See, e.g., comment of the Printing and Imaging Ass’n. people to organize is essential to the other workplace protection statutes). For 54 See, e.g., comment of Coalition for a exercise of those rights. example: Democratic Workplace. —I had no idea that I had the right to join 55 See, e.g., comments of Printing Industries of a union, and was often told by my —Is it not just as probable that people clearly employer that I could not do so. * * * I understand unions, and they have decided America and the Portland Cement Association. 56 think employers should be required to post they want no part of them? See, e.g., comments of Cass County Electric Cooperative and Pilchak Cohen & Tice, P.C. notices so that all employees may make an —Labor unions charge approximately 1.3% 57 As one person states, ‘‘The internet has long informed decision about their rights to join of pre-tax earnings for monthly dues. Many ago replaced lunch room bulletin board postings as a union.60 workers, especially those who lost their the means by which employees learn of and —Workers have rights and they have the good paying jobs during this recession and exercise their rights.’’ right to know them.61 have found new jobs at $10.00-$11.00 per 58 Such comments appear to misunderstand that —[T]here is a lot of ignorance among young hour wages, need the dues money by this rule, the Board is indeed seeking to inform workers and veteran workers alike with themselves, in order to support their employees of the provisions of the NLRA, using the regard to knowledge of their right to families. most accessible venues to reach them, their workplaces. Other comments question why this rule does not 59 Comment of Fisher & Phillips, LLP. 49 Comment of the Employers Association. mandate notice posting by governmental employers. 60 Comment of Member, Local 150, Operating 50 Comment of Malt-O-Meal Company (Malt-O- The NLRA does not cover such employers. See Engineers. Meal). Section 2(2), 29 U.S.C. 152(2). 61 Comment of Organizer, IBEW.

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organize. This is not a cure for employer specifically did outreach and member charges and elect unions to serve as intimidation, * * * but it is a step in the education, or unless the employee ran into a their collective-bargaining right direction. problem and came to a steward for representatives. But fear that employees —As an employee at will, I was not aware assistance. * * * may exercise their statutory rights is not of my rights to form a union or any rights Notice to employees, however, could that I may have had under the NLRA.62 provide a starting point for those employees a valid reason for not informing them of —I worked in the construction materials to try to assert rights that they currently have their rights. testing industry for about eight years. on paper but often do not have in practice. Moreover, the NLRA protects the right to join a union and to refrain from doing During that time I had no idea I had the Several immigrant workers’ right to join a union.63 so and the notice so states. In addition, organizations comment on the difficulty —As a working class citizen, I am well aware the NLRA confers and protects other that this population has in of just how rare it is for my fellow workers rights besides the right to join or refrain understanding their rights and accessing to know their rights. For that reason, this from joining unions. Section 7 provides is a rule that is extremely overdue. * * *. the proper help when needed.70 These that employees have the right ‘‘to engage organizations note that laws in the A sampling of comments from labor in other concerted activities for the immigrants’ home countries may be attorneys, workers’ organizations, and purpose of collective bargaining or other quite different from those of the United labor organizations is consistent with mutual aid or protection[.]’’ Such States, and the high barrier that lack of these employees’ comments: protected concerted activities include fluency in English creates in making concertedly complaining or petitioning —It is my experience that upwards of 95% these persons aware of their rights to management concerning their terms of employees have no idea what their under the NLRA.71 These organizations rights are with respect to labor unions.64 and conditions of employment; 74 also contend that because guestworkers —In fact, I have had many employees over concertedly petitioning government in particular can work only for the the years tell me that their employers have concerning matters of mutual interest in employer that requested their visa, they told them that they do not allow unions at the workplace; 75 and concertedly their workplace.65 are extremely vulnerable to labor refusing to work under poor working —Workers today do not know what their violations, and that these employers conditions.76 Few if any of the rights are under the NLRA. As a Union routinely misrepresent the existence of comments contending that employees organizer with more than 20 years of NLRA rights.72 The National Day know about their NLRA rights assert experience, without exception, every Laborers Organizing Network claims worker I encounter thinks that it is that employees are aware of the right to that ‘‘most workers are not aware of perfectly legal for their employer to fire engage in such protected concerted them simply for saying the word union, or their right to organize.’’ One immigrant construction worker, activities in the nonunion setting. By even to speak with other employees at contrast, as shown above, many work about general working conditions. commenting favorably on the proposed comments favoring the rule report that The protections afforded workers to engage rule, explains that she learned English in protected concerted activity around after coming to the United States from nonunion employees are especially workplace issues is unknown to the Poland: ‘‘While working as a testing unlikely to be aware of their NLRA 66 majority of workers today. technician, I had no idea I had the right rights. Although some comments contend —It is the experience of [Service Employees to join a union.’’ She writes: International Union (SEIU) Local 615] that that the articles cited by the Board in many employees are woefully unaware of I think a government written notice posted support of its belief that employees are their rights under the NLRA and that that in the workplace would be a critical source largely unaware of the NLRA rights are lack of knowledge makes employees of information for employees who want to old and inadequately supported,77 they join a union. Especially in this industry vulnerable when they desire to address cite no more recent or better supported their wages and working conditions with where many people like myself are foreign the employers.67 born, there is a language barrier that adds to studies to the contrary. In addition, the —I have participated in hundreds of the difficulty in understanding our legal percentage of the private sector organizing campaigns involving thousands rights. I take government posted notices workforce represented by unions has of employees. In my experience, most seriously and believe other people do as declined from about 12 percent in 1989, people had no idea what their rights were well.73 about the time the articles cited in the to organize or join unions.68 Significantly, the Board received NPRM were published, to 8 percent Some unions also assert that even numerous comments opposing the rule presently; 78 thus, to the extent that lack unionized employees often do not have precisely because the commenters of contact with unions contributed to a clear understanding of the NLRA. One believe that the notice will increase the lack of knowledge of NLRA rights 20 union staff representative writes that level of knowledge about the NLRA on years ago, it probably is even more of a ‘‘there seems to be a disconnect, most of the part of employees. Specifically, they factor today.79 our membership does not know a thing predict that the rule will lead to about NLRA.’’ 69 Another union steward increased unionization and create 74 North Carolina License Plate Agency #18, 346 NLRB 293 (2006), enf’d. 243 F. Appx. 771 (4th Cir. comments similarly: alleged adverse effects on employers 2007) (unpublished). I saw how union members were often and the economy generally. For 75 Eastex, Inc. v. NLRB, above, 437 U.S. at 565– unaware of their rights unless the union example, Baker and Daniels LLP 567. comments that as more employees 76 NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). 62 Comment of International Staff Representative, become aware of their NLRA rights, they 77 Steelworkers. will file more unfair labor practice See comment of Cass County Electric Cooperative. For example, Professor Morris, author 63 Comment of Member, Local 150, Operating of two of the articles cited by the Board (as ‘‘see Engineers. 70 See e.g., comments of National Immigration also’’) listed no authority to support his assertion 64 Comment of Organizer, Local 150, Operating Law Center and Latino Justice. that employees lack knowledge about the NLRA. Engineers. 71 See, e.g., comment of Friends of Farmworkers, See Charles J. Morris, ‘‘Renaissance at the NLRB,’’ 65 Comment of Strokoff and Cowden. Inc. above at fn. 3; Morris, ‘‘NLRB Protection in the 66 Comment of Organizer, Teamsters, Local 117. 72 Comment of Alliance of Guestworkers for Nonunion Workplace,’’ above at fn. 3. 67 Comment of SEIU Local 615. Dignity. 78 See DeChiara, ‘‘The Right to Know,’’ above at 68 Comment of Financial Secretary, Local 150, 73 Comment of Instructor, Apprenticeship and fn. 1; 75 FR 80411 fn. 4. Operating Engineers. Skill Improvement Program, Local 150, Operating 79 The Printing and Imaging Association 69 Comment of Staff Representative, Steelworkers. Engineers. discussed these declining rates of unionization, and

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In support of their contention that —We are not anti-union; but feel as will not be effective in informing NLRA rights are widely known among Americans, we must protect our right not employees of their rights, because to be signatory to a third party in our employees, several comments observe 85 employees will simply ignore the that the Board’s processes for holding business. notices, as the comments contend they —If one desires to be a part of a union, he representation elections and or she is free to apply to those companies ignore other workplace postings. investigating and remedying unfair that operate with that form of ‘‘Posters are an ineffective means of labor practices are invoked tens of relationship.86 educating workers and are rarely read thousands of time a year.80 That is true. —I also believe employees already have such by employees.’’ 90 Other comments However, the civilian work force notice by understanding they retain the argue that adding one more notice to the includes some 108 million workers right to change employers whenever they many that are already mandated under 87 potentially subject to the NLRA.81 Thus, so choose. other statutes will simply create more the number of employees who invoke These comments reinforce the Board’s ‘‘visual clutter’’ that contributes to the Board’s processes make up only a belief that, in addition to informing employees’ disinclination to pay small percentage of the covered employees of their NLRA rights so that attention to posted notices. As one workforce. Accordingly, the Board does they may better exercise those rights, employer stated, ‘‘My bulletin boards not consider the number of times the posting the notice may have the are filled with required notifications Board’s processes are invoked to be beneficial side effect of informing that nobody reads. In the past 15 years, persuasive evidence that workers employers concerning the NLRA’s not one of our 200 employees has ever generally are aware of their NLRA requirements.88 asked about any of these required rights. As to the contention that information postings. I have never seen anyone ever Finally, remarks in multiple opposing concerning unions is widely available read one of them.’’ 91 Another wrote, comments strongly suggest that the on the internet, including on the Board’s ‘‘Employers are already required to post commenters themselves do not Web site, the Board responds that not all so many notices that these notices have understand the basic provisions of the employees have ready access to the lost any semblance of effectiveness as a NLRA: internet. Moreover, it is reasonable to governmental communication channel.’’ —If my employees want to join a union they assume that an employee who has no To these comments, the Board need to look for a job in a union idea that he or she has a right to join a responds that the experiences of the company.82 union, attempt to organize his commenters is apparently not universal; —[a]nytime one of our independent employer’s workforce, or engage in other comments cited above contend tradesmen would like to join the union other protected concerted activities, that employees are more knowledgeable they are free to apply and be hired by a would be less likely to seek such about their rights under statutes union contractor. information than one who is aware of —If a person so desires to be employed by requiring the posting of notices such rights and wants to learn more summarizing those rights than about a union company, they should take their 89 ass to a union company and apply for a about them. The Board is pleased that their NLRA rights. Moreover, not every union job. it has received a large number of employee has to read workplace notices —Belonging to a union is a privilege and a inquiries at its Web site seeking for those notices to be effective. If only preference—not a right.83 information concerning NLRA rights, one employee of a particular employer —If they don’t like the way I treat them, then but it is under no illusion that that reads the Board’s notice and conveys go get another job. That is what capitalism information will reach more than a is about.84 what he or she has read to the other small fraction of the workforce in the employees, that may be enough to pique foreseeable future. cited Professor Kate Bronfenbrenner’s doctoral their interest in learning more about Several comments assert that, in any their NLRA rights. In addition, the dissertation, ‘‘Seeds of Resurgence: Successful event, requiring the posting of notices Union Strategies for Winning Certification Elections Board is mandating electronic notice to and First Contracts in the 1980s and Beyond,’’ employees on an internet or intranet (available at http://digitalcommons.ilr.cornell.edu/ 85 Comment of Humphrey & Associates, Inc. cgi/viewcontent.cgi?article=1002&context=reports& 86 Comment of Medina Excavating, Inc. site, when the employer customarily sei-redir=1#search=‘‘Kate+Bronfenbrenner, 87 Comment of Olsen Tool & Plastics, Co. communicates with its employees about +Uneasy+terrain:+The+ 88 And as one union official writes: personnel rules or policies in that way, impact+of+capital+mobility+on+ Having been active in labor relations for 30 years in order to reach those who read paper workers,+wages,+and+union’’) to argue that the I can assure you that both employees and employers higher win rates for unions in elections involving notices and those who read electronic are confused about their respective rights under the both immigrant and older workers argued against postings. As for the comment that NLRA. Even union officers often do not understand the need for the proposed rule. their rights. Members and non-members rarely argues that the Board can use public The Board is not addressing the many debated understand their rights. Often labor management service announcements or advertising to causes of the declining rates of private sector disputes arise because one or both sides are mis- unionization in the United States. This rule simply reach employees, the Board believes informed about their rights. Often the employer that it makes much more sense to seek accepts those rates as given, and seeks to increase takes an action it truly believes is within its rights the knowledge of NLRA provisions among those when it is not. to reach directly the persons to whom without readily available sources of reliable Comment of Civil Service Employees Association. the Act applies, in the location where information on these provisions. 89 Thus, the many comments that assert that they are most likely to hear about their 80 See, e.g., comment of Desert Terrace Healthcare employees can just use Internet search engines to Center. other employment rights, the find out about unions (see, e.g., comments of 92 81 workplace. See Bureau of Labor Statistics, Economic News Winseda Corp. Homestead Village, Inc.), Release, Table B–1, ‘‘Employees on nonfarm misapprehend the breadth of the rights of which the payrolls by industry sector and selected industry Board seeks to apprise all employees. As stated 90 Comment of Riverbend Community Mental detail,’’ May 3, 2011 (seasonally adjusted data for above, Section 7 is not merely about the right to join Health. March 2011) http://data.bls.gov/timeseries 91 Comment of Farmers Cooperative Compress. _ _ or refrain from joining a labor organization, but LNS11300000?years option=specific years more broadly protects the right of employees to 92 Printing Industries of America uses election &include_graphs=true&to_year=2010 _ engage in ‘‘concerted activities’’ for the purpose of data to argue that the Labor Department’s notice &from year=1948 (last visited June 6, 2011). ‘‘mutual aid or protection.’’ It is this right that is posting rule for Federal contractors has not been 82 Comment of P & L Fire Protection, Inc. the most misunderstood and simply not subject to effective because the rate of elections has not 83 Comment of OKC Tea Party. an easy Internet search by employees who may have increased. It is unclear whether any meaningful 84 Comment of Montana Records Management, no idea of what terms to use, or even that such a conclusion can be drawn from election data for only LLP. right might be protected at all. Continued

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Some comments argue that the procedures related to allegations of derived from Board and court decisions, Board’s notice posting rule does not go noncompliance and enforcement of the of conduct that violates the NLRA will far enough to effectuate the NLRA. One rule. The discussion below is organized assist employees in understanding their labor attorney argues that the Board in the same manner and explains the rights. 75 FR 80412. should require annual trainings for Board’s reasoning in adopting the Prior to issuing the NPRM, the Board supervisors and captive audience standards and procedures contained in carefully reviewed the content of the meetings where employees are read the regulatory text, including the notice required under the Department of their rights by supervisors and Board Board’s responses to the comments Labor’s final rule, which was modified agents and the employees would have to received. in response to comments from acknowledge receiving those notices.93 Subpart A—Definitions, Requirements numerous sources, and tentatively The same comment suggests banning for Employee Notice, and Exceptions concluded that that notice explains captive audience meetings by From Coverage Definitions employee rights accurately and employers. The comment concludes that effectively without going into excessive the NPRM ‘‘doesn’t go anywhere near A. The Definitions or confusing detail. The Board therefore far enough. It is, however, an important For the most part, the definitions found it unnecessary, for purposes of 94 and worthwhile advancement.’’ proposed in the rule are taken from the proposed rulemaking, to modify the Another comment also suggests that those appearing in Section 2 of the language of the notice in the Department annual, mandatory training classes for NLRA, 29 U.S.C. 152. No comments of Labor’s final rule. Moreover, the 95 employees would be desirable. The were received concerning those Board reasoned that because the notice Board believes that this Rule strikes the definitions, and they are unchanged in of employee rights would be the same proper balance in communicating the final rule. A number of comments under the Board’s proposed rule as necessary information about the NLRA were received concerning the definition under the Department of Labor’s rule, to employees. of other terms appearing in the rule. Federal contractors that have posted the For all the foregoing reasons, the Those comments are addressed below. Department of Labor’s required notice Board is persuaded that many private would have complied with the Board’s B. Requirements for Employee Notice sector employees are unaware of their rule and, so long as that notice is 96 NLRA rights. 1. Content Requirements posted, would not have to post a second III. Summary of Final Rule and The notice contains a summary of notice. Id. Discussion of Related Comments employee rights established under the The proposed notice contained The Board’s rule, which requires NLRA. As explained above, the Board examples of general circumstances that employers subject to the NLRA to post believes that requiring notice of constitute violations of employee rights notices of employee rights under the employee rights is necessary to carry out under the NLRA. Thus, the Board NLRA, will be set forth in Chapter 1, the provisions of the NLRA. proposed a notice that provided Part 104 of Volume 29 of the Code of Accordingly, § 104.202 of the proposed employees with more than a Federal Regulations (CFR). Subpart A of rule requires employers subject to the rudimentary overview of their rights the rule sets out definitions; prescribes NLRA to post and maintain the notice under the NLRA, in a user-friendly the size, form, and content of the in conspicuous places, including all format, while simultaneously not employee notice; and lists the categories places where notices to employees are overwhelming employees with of employers that are not covered by the customarily posted, and to take information that is unnecessary and rule. Subpart B sets out standards and reasonable steps to ensure that the distracting in the limited format of a notices are not altered, defaced, or notice. As explained below, the Board a few months, especially since the number of covered by any other material, or also tentatively agreed with the contractors covered by the Labor Department’s rule otherwise rendered unreadable. Department of Labor that it is is only a small fraction of the number of employers As stated in the NPRM, the Board unnecessary for the notice to include subject to the NLRA. In any event, the Board does not believe that that is the proper criterion by considered the substantive content and specifically the right of employees who which to measure the rule’s effectiveness. The level of detail the notice should contain are not union members and who are purpose of requiring the posting of such notices is regarding NLRA rights. In arriving at the covered by a contractual union-security to inform employees of their rights so that they may content of the notice of employee rights, clause to refuse to pay union dues and exercise them more effectively, not to obtain any particular result such as the filing of more election the Board proposed to adopt the fees for any purpose other than petitions. language of the Department of Labor’s collective bargaining, contract The same comment also cites a couple of final rule requiring Federal contractors administration, or grievance adjustment. textbooks which it asserts are popularly used in to post notices of employees’ NLRA See Communications Workers v. Beck, high schools today to argue that labor history is being taught to today’s students. The Board is rights. 29 CFR part 471. In the NPRM, 487 U.S. 735 (1988). Id. at 80412–80413. unable to assess the truth of that assertion, but the Board explained that it tentatively The Board specifically invited regardless, it is unclear whether students agreed with the Department of Labor comment on the statement of employee necessarily connect this history to their future that neither quoting the statement of rights proposed for inclusion in the rights as employees. 93 Comment of Weinberg, Roger & Rosenfeld. employee rights contained in Section 7 required notice to employees. In 94 Id. of the NLRA nor briefly summarizing particular, the Board requested 95 Comment of Staff Representative, Steelworkers. those rights in the notice would be comment on whether the notice 96 Accordingly, the Board finds it unnecessary to likely to effectively inform employees of contains sufficient information of conduct a study to determine the extent of their rights. Rather, the language of the employee rights under the NLRA; employees’ knowledge of NLRA rights. The Board further observes that even if only 10 percent of notice should include a more detailed whether it effectively conveys that workers were unaware of those rights, that would description of employee rights derived information to employees; and whether still mean that more than 10 million workers lacked from Board and court decisions it achieves the desired balance between knowledge of one of their most basic workplace implementing those rights. The Board providing an overview of employee rights. The Board believes that there is no question that at least a similar percentage of employees are also stated that it saw merit in the rights under the Act and limiting unaware of the rights explained in the notice. In the Department of Labor’s judgment that unnecessary and distracting Board’s view, that justifies issuing the rule. including in the notice examples, again information. Id. at 80413.

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The proposed Appendix to Subpart A NLRA includes the right to refrain from law, which may require frequent included Board contact information and union activity, but claim that this right updates to the notice.103 basic enforcement procedures to enable is given little attention in comparison to Many comments suggest that the employees to learn more about their other rights in the proposed notice. required notice should include only the NLRA rights and how to enforce them. Several comments also argue that the specific rights contained in Section 7 of Thus, the required notice confirmed that proposed notice excludes rights the NLRA or, at most, the rights and unlawful conduct will not be permitted, associated with an anti-union position, obligations stated in employee provided information about the Board including the right to seek advisories on the NLRB’s Web site. The and about filing a charge with the decertification of a bargaining comments favoring a more general Board, and stated that the Board will representative, the right to abstain from notice suggest that the detailed list of prosecute violators of the NLRA. The union membership in ‘‘right-to-work’’ rights far exceeds the ‘‘short and plain’’ notice also indicated that there is a 6- states, and rights associated with the description of rights that the Board has month statute of limitations for filing Supreme Court’s decision in found sufficient to ‘‘clearly and charges with the Board alleging Communications Workers v. Beck.99 effectively inform employees of their violations and provided Board contact Comments also suggest that the notice rights under the Act’’ in unfair labor information. The Board invited should include a warning to employees practice cases.104 See Ishikawa Gasket suggested additions or deletions to these that unionizing will result in a loss of America, Inc., 337 NLRB 175 (2001), provisions that would improve the the right to negotiate directly with their enfd. 354 F.3d 534 (6th Cir. 2004). A content of the notice of employee rights. employer.100 Many of these comments comment from Fisher & Phillips LLP Id. argue that a neutral government position argues that, under the Board’s current The content of the proposed notice on unionization would be more remedial practices, only an employer received more comments than any other inclusive of anti-union rights.101 that egregiously violates the Act on single topic in the proposed rule. But of A number of comments address the numerous occasions is required to post the thousands of comments that address issue of complexity, and argue that the such an inclusive list of rights. the content of the notice, the majority Board’s attempt to summarize the law is Finally, a number of comments are either very general, or identical or flawed because the Board’s decisional suggest that the notice should include a nearly identical form letters or law is too complex to condense into a list of employer rights, namely the right 102 ‘‘postcard’’ comments sent in response single workplace notice. Some of the to distribute anti-union literature and to comment initiatives by various comments addressing this issue note the right to discuss the company’s interest groups, including those that NLRA law has been developed over position regarding unions. representing employers, unions, and 75 years, and involves interpretations by In addition to the general comments employee rights organizations. Many both the NLRB and the Federal courts, about the proposed notice, many comments from both individuals and sometimes with conflicting results. The comments offer suggestions for specific organizations offer general support for Chamber of Commerce cites the revisions to individual provisions the content of the proposed notice, ‘‘NLRB’s Basic Guide to the National within the five sections of the proposed stating that employee awareness of basic Labor Relations Act: General Principles notice: the introduction, the statement legal rights will promote a fair and just of Law Under the Statute and of affirmative rights, the examples of workplace, improve employee morale, Procedures of the National Labor unlawful conduct, the collective- and foster workforce stability, among Relations Board’’ (Basic Guide to the bargaining provision, and the coverage NLRA) (1997), available at http:// other benefits.97 More specifically, one information. The following discussion www.nlrb.gov/publications/brochures, comment asserts that the proposed presents the comments related to to make their point about legal notice ‘‘contains an accurate, individual provisions of the notice, complexity. In the Foreword to the understandable and balanced followed by the Board’s decisions Basic Guide to the NLRA, the Board’s presentation of rights.’’ 98 The United regarding the content of the final notice General Counsel states that ‘‘[a]ny effort Transportation Union contends that the made in response to those comments. to state basic principles of law in a ‘‘notice presents an understandable, simple way is a challenging and a. Comments Regarding the Introduction concise and extremely informative unenviable task. This is especially true recitation of workers’ rights, without The introduction to the notice of about labor law, a relatively complex rights in the proposed rule stated: getting bogged down in extraneous field of law.’’ The thrust of these language, incomprehensible legalese or comments about legal complexity was The National Labor Relations Act (NLRA) innumerable caveats and exceptions.’’ that the NLRA is complex, dynamic, guarantees the right of employees to organize Other comments were less supportive and nuanced, and any attempt to and bargain collectively with their employers, and to engage in other protected of the content of the proposed notice summarize it in a workplace notice will and the notice-posting requirement in concerted activity. Employees covered by the result in an oversimplification of the NLRB are protected from certain types of general. A significant number of law and lead to confusion, comments, including those from many employer and union misconduct. This Notice misunderstanding, inconsistencies, and gives you general information about your individuals, employers, and employer some say, heightened labor-management rights, and about the obligations of employers industry and interest groups, argue that antagonism. Moreover, some comments under the NLRA. Contact the National Labor the content of the notice is not balanced, express concern that Board member Relations Board (NLRB), the Federal agency and appears to promote unionization turnover could result in changes to the that investigates and resolves complaints instead of employee freedom of under the NLRA, using the contact information supplied below, if you have any association. In particular, many 99 See comments of Pilchak, Cohen & Tice, comments state that Section 7 of the American Trucking Association, and Electrical and questions about specific rights that may Mechanical Systems Inc. apply in your particular workplace. 97 See comments of the National Immigration Law 100 See, e.g. comment of the Heritage Foundation. Center, Service Employees International Union, and 101 See, e.g., comment of the National Right to 103 See comment of Capital Associated Industries, Weinberg, Roger & Rosenfeld. Work Committee. Inc. and National Association of Manufacturers. 98 Comment of David Fusco, a labor and 102 See, e.g., comment of COLLE, Retail Industry 104 See e.g. comments of COLLE and Coalition for employment attorney. Leaders Association. a Democratic Workplace.

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75 FR 80418–80419 (footnote omitted). Discuss your terms and conditions of suggest including language informing The Board received a few suggestions employment or union organizing with your employees that they can be fired for not for changes to the introduction of the co-workers or a union. paying their union dues. Take action with one or more co-workers The Board rejects those suggestions. notice. The first comment suggests to improve your working conditions by, including language stating that among other means, raising work-related The notice is intended to inform employees are required to contact their complaints directly with your employer or employees of the rights that they have ‘‘executive manager’’ or ‘‘administrative with a government agency, and seeking help under the NLRA and does not include team’’ before contacting the NLRB and from a union. the benefits or consequences of suggests that the NLRB refuse to process Strike and picket, depending on the exercising any of the enumerated rights. employees’ complaints until the purpose or means of the strike or the Adding the consequences of one right picketing. employees first raise the issue with his would require revising the entire notice Choose not to do any of these activities, to include potential consequences— or her ‘‘management team.’’ The second including joining or remaining a member of comment, from COLLE, urges the Board a union. both positive and negative—of all the protected rights. For example, the notice to add language in the introduction 75 FR 80419. alerting employees that they also have would need to include the The majority of comments addressing the right to refrain from engaging in consequences of refraining from joining the affirmative rights section were union activity. The comment suggests a union, such as not being permitted to general and did not specifically address that by not including the right to refrain vote on contract ratifications or attend the language of the individual from union activity in the introduction, union membership meetings. The provisions. Generally, labor the Board is showing a bias toward necessary additions to the notice would organizations and employee advocate create a notice that is not a concise list union organizing. The comment argues groups favor the Board’s language. A that a more neutral notice would of rights, but more likely a pamphlet- comment from the United Food and sized list of rights and explanations. In include both the right to engage and not Commercial Workers International engage in union activity at the addition, the consequences of Union asserts that the approach unionization are unique to each beginning of the document, rather than ‘‘achieves an appropriate balance wait to first mention the right to refrain unionized workplace, so it would be between providing sufficiently clear impossible to include a list of general in the affirmative rights section. information about employee’s basic The Board does not agree with the consequences that could apply statutory rights and limiting proposal that employees be required to uniformly to all unionized workplaces. unnecessary and confusing information contact management officials as a If employees have questions about the about peripheral rights.’’ On the other prerequisite to contacting the Board. implications of any of their rights, they hand, comments from employer groups Such a procedural requirement is not can contact an NLRB regional office. do not favor the Board’s language. More Assisted Living Federation of America contemplated in the NLRA and could specifically, employer groups argue that (ALFA) suggests that the affirmative discourage employees from exercising the notice is biased toward union rights section should be revised to or vindicating their rights. The Board agrees, however, that the organizing. Generally, the comments reflect the anti-union position. For example, rather than the current introduction should include both the argue that the right to refrain from provision that states that employees rights to engage in union and other engaging in union activity should have have a right to ‘‘[o]rganize a union to concerted activity and the right to a more prominent place on the notice, negotiate with your employer refrain from doing so. The Board rather than being the last of the rights concerning your wages, hours, and other believes that adding the right to refrain listed on the poster. Many of these terms and conditions of employment,’’ to the introduction will aid in the comments contend that the notice the comment suggests the following Board’s approach to present a balanced should include the right not to engage provision: ‘‘you have the right to and neutral statement of rights. in specific union-related activities. Other comments about the notice’s organize with other employees in Accordingly, the first sentence in the statement of affirmative rights are opposition to a particular union or introduction to the notice in the final directed at individual provisions of the unions.’’ And ‘‘you have the right to: rule will state: notice. A discussion of those comments refuse to form, join, or assist a union, The National Labor Relations Act (NLRA) is set out in more detail below. including the right to refuse to sign a guarantees the right of employees to organize union card, attend a union meeting or i. The Right To Organize and the Right and bargain collectively with their supply a union with information employers, and to engage in other protected To Form, Join and Assist a Union concerted activity or to refrain from engaging concerning you, your co-worker or your in any of the above activity. A few comments generally state that job,’’ rather than ‘‘[you have the right to] the notice should include the [f]orm, join or assist a union.’’ The b. Comments Regarding Affirmative consequences of exercising the right to Board disagrees. The Board’s proposed Statement of Rights organize, join or form a union.105 For notice language reflects the language of example, several comments argue that the NLRA itself, which specifically The proposed notice contains the employees should be informed that if following statement of affirmative grants affirmative rights, including they join a union they give up the right nearly all of those listed in the notice. rights: Under the NLRA, you have the to deal directly with their employers. right to: Also, the notice, like the NLRA, states Another comment argues that that employees have the right to refrain Organize a union to negotiate with your employees should be informed of the from engaging in all of the listed employer concerning your wages, hours, and cost of organizing a union, including the activities. The Board therefore sees no other terms and conditions of employment. cost of dues and the potential for the Form, join or assist a union. need to recast the notice to further Bargain collectively through company to shut down because of emphasize the right to oppose unions. increased labor costs associated with a representatives of employees’ own choosing ii. The Right To Bargain Collectively for a contract with your employer setting unionized workforce. Other comments your wages, benefits, hours, and other Two comments suggest that the working conditions. 105 See, e.g., comment of Pilchak Cohen & Tice. collective-bargaining provision is

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misleading and vague. The first organizing with your co-workers or a The Board disagrees. By necessity, an comment, from COLLE, argues that the union.’’ 11x17-inch notice cannot contain an provision is misleading because it fails The Board agrees that adding the exhaustive list of limitations on and to acknowledge that an employer does suggested language would clarify the exceptions to the rights to strike and not have an obligation under the NLRA provision. The list of affirmative rights picket, as suggested by employers. to consent to the establishment of a uses the terms ‘‘wages, hours, and other However, because exercising the right to collective-bargaining agreement, but terms and conditions of employment’’ to strike can significantly affect the instead only has the statutory duty to describe what unions may negotiate. livelihood of employees, the Board ‘‘meet at reasonable times and confer in The notice then uses the terms ‘‘wages, considers it important to alert good faith with respect to wages, hours, benefits, hours, and other working employees that there are some and other terms and conditions of conditions’’ to describe the right to limitations to exercising this right. The employment.’’ 29 U.S.C. 158(d). The bargain collectively for a contract. Those Board is satisfied that the general comment also argues that the failure to statements make it clear that ‘‘terms and caveat, ‘‘depending on the purpose or reach an agreement is not per se conditions of employment’’ includes means of the strike or the picketing,’’ unlawful, and the finding of an unfair wages and benefits. But then together with the instruction to contact labor practice depends on whether the immediately following those two the NLRB with specific questions about parties engaged in good-faith bargaining. statements, the notice states that the application of rights in certain This comment suggests that the notice employees may discuss ‘‘terms and situations, provides sufficient guidance should instead note that the NLRA conditions of employment,’’ but does to employees about the exercise of their requires parties to bargain in good faith not include any clarifying language. In rights while still staying within the but does not compel agreement or the order, to create a more uniform notice constraints set by a necessarily brief making of concessions, and that, in and clarify the extent to which employee notice. some instances, a bargaining impasse employees may discuss their terms and v. The Right To Refrain From Union or will result, permitting the parties to conditions of employment the final Other Protected Concerted Activity exercise their economic weapons, such notice will read, ‘‘Under the NLRA, you All the comments that discuss the as strikes or lockouts. The second have a right to: Discuss your wages and comment, made generally by more than right to refrain from engaging in union benefits and other terms and conditions activity criticize what they contend to a few organizations and individuals, of employment or union organizing with suggests that the notice add a statement be its lack of prominence. ALFA accuses your co-workers or a union.’’ the Board of ‘‘burying’’ the provision by indicating that employers and unions placing it last, below the other rights to have an obligation to bargain in good iv. The Right To Strike and Picket engage in union and other concerted faith. The notice’s reference to the right to activity. The U.S. Chamber of The Board finds it unnecessary to add strike and picket received a few Commerce suggests that the notice the suggested amplifications. For one comments from law firms and other include ‘‘or not’’ after each of the thing, the notice does state that organizations representing employers’ enumerated rights. For example, ‘‘you employers and unions have a duty to interests. The comments suggest that the have the right to: form join or assist a bargain in good faith, ‘‘in a genuine provision is flawed because of the union, or not.’’ (Emphasis added.) Other effort to reach a written, binding absence of further limitations, suggested revisions to amplify the agreement setting your terms and exceptions, and distinctions.106 prominence of the provision include conditions of employment.’’ In the Generally, the comments argue that not stating that employees have the right to Board’s view, the statement that the all strikes and pickets are protected. refrain from protected, concerted parties must make a ‘‘genuine effort’’ to COLLE argues that the notice should activities and/or union activities; stating reach agreement necessarily implies that inform employees of the limitations of that employees’ right to refrain includes they are not, in the end, required to strikes encompassed by ‘‘depending on the right to actively oppose reach one. The Board deems the notice the purpose or means of the strike or unionization, to not sign union language to be adequate on this point. pickets’’—for example, whether the authorization cards, to request a secret Finally, for the reasons already strike is for recognition or bargaining, ballot election, to not be a member of a discussed, the Board rejects the whether the strike has a secondary union or pay dues or fees (addressed contention that the notice should purpose, whether picketing involves a further below), or to decertify a union discuss the implications or reserved gate, whether the strike is a sit- (also addressed below); and stating that consequences of unsuccessful down or minority strike, whether the employees have the right to be fairly bargaining. conduct is a slowdown and not a full represented even if not a member of the iii. The Right To Discuss With Co- withholding of work, whether the strike union. One employer suggests that if the Workers or Union is partial or intermittent, whether the notice retains its current emphasis strike involves violence, and whether favoring union activity and disfavoring A comment from the National the strike is an unfair labor practice the freedom to refrain from such Immigration Law Center suggests that strike or an economic strike. ALFA activity, employers will need to post the use of the phrase ‘‘terms and argues that employees should be their own notices that emphasize and conditions of employment’’ is unclear informed that if the employer is a elaborate on the right to refrain. especially to employees who are healthcare institution, ‘‘employees do The Board received at least four unaware of their rights under the NLRA. not have the right to participate in a comments that argue that the notice, as The comment recommends that, in union-initiated strike or picket unless written, may make employees believe order to clarify, the Board add the the union has provided the employer that the employer is encouraging phrase ‘‘including wages and benefits.’’ and federal and state mediation agencies unionization. Two of those comments The suggested language would read, with the required 10 days notice.’’ suggest that an employer is protected ‘‘you have the right to: discuss your from compelled speech by Section 8(c) terms and conditions of employment, 106 See comments of ALFA, Carrollton Health and of the NLRA. (The Board has already including wages and benefits, or union Rehabilitation Center, and COLLE. rejected the latter argument; see section

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II, subsection B, ‘‘Statutory Authority,’’ states that it is from the government. some rights covered by the NLRA such above.) Second, in light of the other workplace as ‘‘the right to sign or refuse to sign an The contention that the right to notice employees are accustomed to authorization card,’’ ‘‘the right to refrain from engaging in union activity seeing, employees will understand that discuss the advantages and is ‘‘buried’’ in the list of other the notice is a communication to disadvantages of union representation affirmative rights or that the Board is workers from the government, not from or membership with the employer,’’ and biased in favor of unionization because the employer. Finally, as discussed ‘‘the right to receive information from of the choice of placement is without above, NLRA Section 8(c) protects the employer regarding the advantages merit. The list of rights in the proposed employers’ right to express any ‘‘views, and disadvantages of union notice is patterned after the list of rights argument, or opinion’’ ‘‘if such representation.’’ in Section 7 of the NLRA, 29 U.S.C. 157. expression contains no threat of reprisal The Board has determined that the Section 7 lists the right to refrain last, or force or promise of benefit.’’ The rule inclusion of these additional items is after stating several other affirmative does not affect this right. Therefore, if unnecessary. As discussed above, the rights before it. In addition, the Board’s an employer is concerned that NLRA itself contains only a general remedial notices list the right to refrain employees will get the wrong statement that employees have the right last. See Ishikawa Gasket America, Inc., impression, it may legally express its not to participate in union and/or other above. So does the Board’s Notice of opinion regarding unionization as long protected concerted activities. Section Election. In addition, the notice as it does so in a noncoercive manner. 19 does specifically set forth the right of required by this rule states that it is Critics of the notice contend that the certain religious objectors to pay the illegal for an employer to take adverse notice should contain a number of equivalent of union dues to a tax- action against an employee ‘‘because additional rights and also explanations exempt charity; however, this right is [the employee] choose[s] not to engage of when and how an employee may opt implicated only when an employer and in any such [union-related] activity.’’ out of paying union dues. Thus, most union have entered into a union- The Board has revised the introduction employer groups argue that the notice security arrangement. Because the of the notice to include the right to should contain a statement regarding notice does not mention or explain such refrain—this addition further highlights the right to decertify a union. A number arrangements, the Board finds no reason an employee’s right to refrain from of those comments state that the notice to list this narrow exception to union- union activity. Finally, the Board should provide detailed guidance on the security requirements. In sum, the believes that people understand a right process for decertifying a union. Others Board is not persuaded that the notice as different from an obligation and thus suggest that the notice should contain needs to expand further on the right to will, for example, understand that the instructions for deauthorizing a union refrain by including a list of specific right to organize a union includes the security clause. A majority of employers ways in which employees can elect not right not to do so. Accordingly, the and individuals who filed comments on to participate or opt out of paying union Board concludes that the notice the content of the notice urge the Board dues. Employees who desire more sufficiently addresses the right to refrain to include a notice of employee rights information regarding the right not to among the list of statutory rights. In under Communications Workers v. participate can contact the Board. addressing the numerous comments Beck. Baker & McKenzie suggests The Board does not believe that questioning the Board’s neutrality, the adding a provision informing employees further explication of this point is Board points out that in Section 1 of the that for religious purposes an employee necessary. However, because so many NLRA, Congress declared that it is the may opt out of paying dues to a comments argue that the notice should policy of the United States to mitigate union.107 A few comments also suggest include the right to decertify a union or eliminate obstructions to the free that the notice add any rights that and rights under Communication flow of commerce ‘‘by encouraging the employees may have in ‘‘right-to-work’’ Workers v. Beck, the Board has decided practice and procedure of collective states. As indicated previously, to explain specifically why it disagrees bargaining and by protecting the numerous comments suggest the with each contention. exercise by workers of full freedom of inclusion of other rights of employees Concerning the right to decertify, the association, self-organization, and who do not desire union representation. notice states that employees have the designation of representatives of their Baker & McKenzie suggests a list of 26 right not to engage in union activity, own choosing, for the purpose of additional affirmative rights, most of ‘‘including joining or remaining a negotiating the terms and conditions of which only affect employees in a member of a union.’’ Moreover, the their employment or other mutual aid or unionized setting and are derived from notice does not mention the right to protection.’’ 29 U.S.C. 151. Thus, by its the Labor-Management Reporting and seek Board certification of a union. own terms, the NLRA encourages Disclosure Act, the Labor-Management Indeed, contrary to the numerous collective bargaining and the exercise of Relations Act, or other Federal labor comments suggesting that the proposed the other affirmative rights guaranteed statutes enforced by the Department of notice is a ‘‘roadmap’’ for union by the statute. In doing so, however, the Labor. The proposed list also includes organizing, the notice does not even NLRA seeks to ensure employee choice mention the right to petition for a union both to participate in union or other 107 NLRA Section 19 provides that ‘‘Any representation election, possibly leading protected concerted activity and to employee who is a member of and adheres to to union certification; rather, it merely established and traditional tenets or teachings of a states that employees have the right to refrain from doing so. bona fide religion, body, or sect which has Turning to the issues of whether the historically held conscientious objections to joining ‘‘organize a union’’ and ‘‘form, join or notice creates the impression that the or financially supporting labor organizations shall assist a union.’’ The notice does not give employer is encouraging unionization not be required to join or financially support any any further instructions on how an labor organization as a condition of employment; and whether an employer can be except that such employee may be required in a employee can exercise those rights. compelled to post the notice which contract between such employee’s employer and a Similarly, the notice states that contains information the employer labor organization in lieu of periodic dues and employees may choose not to remain a would otherwise not share with initiation fees, to pay sums equal to such dues and member of a union without further initiation fees to a nonreligious, nonlabor employees, the Board disagrees with organization charitable fund exempt from instructions on how to exercise that both arguments. First, the notice clearly taxation[.]’’ 29 U.S.C. 169. right. To include instructions for

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exercising one right and not the other agreement,’’ and the ‘‘right to nominate address certain rights of employers. The would upset the balanced recitation of candidates, to vote in elections of the notice is intended to inform employees rights. If employees have questions labor organization, to attend of their rights, not those of their concerning how they can exercise their membership meetings, and to employers. rights, the notice encourages them to participate in the deliberations and For all the foregoing reasons, the contact the Board. voting upon business properly before Board finds it unnecessary to modify the The Board has also determined that the meeting.’’ Those rights are not found section of the notice summarizing the addition of Beck rights in the final in the NLRA, but instead arise from employees’ NLRA rights. notice is unnecessary. Those rights other Federal labor laws not c. The Examples of Unlawful Employer apply only to employees who are administered by the NLRB. See Labor- Conduct in the Notice represented by unions under collective- Management Reporting and Disclosure bargaining agreements containing Act of 1959, 29 U.S.C. 401 et seq The proposed notice contained the union-security provisions. As stated in (LMRDA). The Board finds that it would following examples of unlawful the NPRM, unions that seek to obligate be inappropriate to include those conduct: employees to pay dues and fees under additional rights in a notice informing Under the NLRA, it is illegal for your those provisions are required to inform employees of their rights under the employer to: those employees of their Beck rights. NLRA. Prohibit you from soliciting for a union See California Saw & Knife Works, vi. Other Comments during non-work time, such as before or after above, 320 NLRB at 233. See 75 FR at work or during break times; or from 80412–80413. The Board was presented The Board has also considered, but distributing union literature during non-work with no evidence during this rejected, the contention that the notice time, in non-work areas, such as parking lots rulemaking that suggests that unions are contain simply a ‘‘short and plain’’ or break rooms. not generally complying with their description of rights such as that used Question you about your union support or notice obligations. In addition, the in remedial notices. See Ishikawa activities in a manner that discourages you Notice of Election, which is posted days Gasket America, Inc., above. The two from engaging in that activity. notices have different purposes: one Fire, demote, or transfer you, or reduce before employees vote on whether to be your hours or change your shift, or otherwise represented by a union, contains an looks back; the other, forward. As take adverse action against you, or threaten explanation of Beck rights. Moreover, as explained in the NPRM, the principal to take any of these actions, because you join the Board stated in the NPRM, only purpose of a remedial notice is to or support a union, or because you engage in about 8 percent of all private sector inform employees of unlawful conduct concerted activity for mutual aid and employees are represented by unions, that has taken place and what is being protection, or because you choose not to and by no means are all of them subject done to remedy that conduct. engage in any such activity. to union-security clauses. Accordingly, Accordingly, although a remedial notice Threaten to close your workplace if the number of employees to whom Beck contains only a brief summary of NLRA workers choose a union to represent them. applies is significantly smaller than the rights, it also contains examples of Promise or grant promotions, pay raises, or unlawful actions that have been other benefits to discourage or encourage number of employees in the private union support. sector covered by the NLRA. Id. at committed. To the extent that such a Prohibit you from wearing union hats, 80413. Indeed, in the ‘‘right-to-work’’ notice generally increases employees’ buttons, t-shirts, and pins in the workplace states, where union-security clauses are awareness of their rights, the unlawful except under special circumstances. prohibited, no employees are covered by conduct detailed adds to that awareness. Spy on or videotape peaceful union union security clauses, with the The proposed notice, by contrast, is a activities and gatherings or pretend to do so. possible exception of employees who notice intended to make employees 75 FR 80419. work in a Federal enclave where state aware of their NLRA rights generally. It The Board received limited comments laws do not apply. Accordingly, because normally will not be posted against a on six of the seven examples of Beck does not apply to the background of already-committed unfair unlawful employer conduct. As a overwhelming majority of employees in labor practices; it therefore needs to general matter, some comments contend today’s private sector workplace, and contain a summary both of NLRA rights that the number of examples of because unions already are obliged to and examples of unlawful conduct in employer misconduct is inform the employees to whom it does order to inform employees effectively of disproportionate compared to the apply of their Beck rights, the Board is the extent of their NLRA rights and of examples of union misconduct.108 Most not including Beck notification in the the availability of remedies for of the comments refer to the number of final notice. violations of those rights. Moreover, as paragraphs devoted to illegal employer The Board also disagrees with the the Board explained in the NPRM, the conduct (7) and the number of comment from Baker & McKenzie general notice of rights posted in the paragraphs devoted to illegal union contending that an exhaustive list of pre-election notice is sufficient because conduct (5). Several comments indicate additional rights should be included in at least one union along with the that when one compares the employer the notice. In addition to the reasons employer is on the scene to enlighten misconduct listed in Section 8(a) of the discussed above, the Board finds that it employees of their rights under the NLRA with union misconduct listed in would not be appropriate to include NLRA. 75 FR 80412 fn.19. Section 8(b), no such imbalance appears those rights, most of which are rights of The fundamental rights described in in the text of the statute. Several ` union members vis-a-vis their unions. the notice are well established and have comments provide additional examples For example, the comment suggests been unchanged for much of the Board’s of union misconduct that they say including the ‘‘right for each union history. Accordingly, the Board does not should be included. member to insist that his/her dues and share the concern expressed in some As with the notice’s statement of initiation fees not be increased * * * comments that a new notice will have affirmative rights, some of the except by a majority vote by secret to be posted each time the composition ballot * * *,’’ the ‘‘right of each of the Board changes. 108 See, e.g., comments of COLLE, Baker & employee in a bargaining unit to receive Finally, the Board rejects the McKenzie, National Association of Manufacturers, a copy of the collective bargaining contention that the notice should and American Trucking Association.

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

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interpretation would be reasonable, including an entire list of special you to Immigration and Customs because it is contrary to the plain circumstances, concerning both the Enforcement (ICE) or to other law language of the notice. The notice states wearing of union insignia and other enforcement authorities in order to that promises or grants of benefits ‘‘to matters (e.g., striking and picketing, intimidate or retaliate against you because you join or support a union, or because you discourage or encourage union support’’ soliciting and distributing union engage in concerted activity for mutual aid are unlawful. It would make little sense literature), would make it impossible to and protection. to use such language if the Board had summarize NLRA rights on an 11x17 meant that any promises or grants of inch poster. In any event, the Board The Board finds it unnecessary to add benefits were unlawful, rather than only finds that the general caveat that special this statement. The notice states that it those with the unlawful stated circumstances may defeat the is unlawful for an employer to ‘‘fire, purposes. And stating that such application of the general rule, coupled demote, or transfer you, or reduce your promises or grants to * * * encourage with the advice to employees to contact hours or change your shift, or otherwise union support are unlawful necessarily the NLRB with specific questions about take adverse action against you, or implies that not all promises and grants particular issues, achieves the balance threaten to take any of these actions, of benefits discourage union support. required for an employee notice of because you join or support a union, or rights about wearing union insignia in because you engage in concerted vi. Prohibitions on Union Insignia the workplace. activity for mutual aid and protection A few comments suggest that the (emphasis added) [.]’’ Reporting or provision fails to illuminate the vii. Spying or Videotaping threatening to report an employee in the conditions under which ‘‘special Aside from the few comments that manner described in the comment circumstances’’ may exist, including in suggest the provision be stricken, only would be a form of adverse action or hotels or retail establishments where the one comment specifically addresses the threat thereof, and the Board believes insignia may interfere with the content of this provision. The comment that it would be understood as such. employer’s public image, or when the states that the language is confusing d. Examples of Illegal Union Activity insignia is profane or vulgar. Another because a ‘‘supervisor might believe it comment indicates that the provision is would be permissible to photograph or The proposed notice contained the overly broad because it does not reflect tape record a union meeting. Another following examples of unlawful union that a violation depends on the work might say that their video camera conduct: Under the NLRA, it is illegal for a environment and the content of the doesn’t use tape so it’s okay to use.’’ The union or for the union that represents insignia. All the comments addressing Board has determined that no change is you in bargaining with your employer this provision suggest either adding necessary. In the Board’s view, it is more detail to the provision to narrow unlikely that a reasonable supervisor to: its meaning, or striking the provision would construe this notice language Threaten you that you will lose your job entirely. (which also says that it is unlawful to unless you support the union. Again, the Board disagrees. ‘‘spy on’’ employees’ peaceful union Refuse to process a grievance because you Employees have a statutorily protected have criticized union officials or because you activities) as indicating that it is are not a member of the union. right to wear union insignia unless the unlawful to videotape, but lawful to Use or maintain discriminatory standards employer is able to demonstrate tape record or photograph, such or procedures in making job referrals from a ‘‘special circumstances’’ that justify a activities. Supervisors are free to contact hiring hall. prohibition. Republic Aviation Corp. v. the Board if they are unsure whether a Cause or attempt to cause an employer to NLRB, 324 U.S. 793 (1945). For reasons contemplated response to union activity discriminate against you because of your of format, the notice cannot might be unlawful. union-related activity. accommodate those comments Take other adverse action against you suggesting that this provision specify viii. Other Suggested Additions to based on whether you have joined or support the union. cases in which the Board has found Illegal Employer Conduct ‘‘special circumstances,’’ such as where The Heritage Foundation suggests that 75 FR 80419. insignia might interfere with production the Board add language to the notice There were only a few comments or safety; where it conveys a message informing employees that if they choose addressing specific changes to the that is obscene or disparages a to be represented by a union, their language in this section of the notice. company’s product or service; where it employer may not give them raises or ALFA criticizes the provision that states interferes with an employer’s attempts bonuses for good performance without that a union may not ‘‘threaten you that to have its employees project a specific first bargaining with the union. The you will lose your job unless you image to customers; where it hinders comment suggests that the Board add support the union,’’ because the production; where it causes disciplinary the following provision ‘‘if a union proposed language ‘‘fails to capture problems in the plant; where it is in an represents you and your co-workers, Section 8(b)(1)(A)’s broader prohibition immediate patient care areas; or where give you a pay raise or a bonus, or against restraint and coercion.’’ The it would have any other consequences reduce or dock your pay, without comment suggests revising the language that would constitute special negotiating with the union.’’ The Board to state that a union may not ‘‘[r]estrain circumstances under settled precedent. rejects this suggestion for the same or coerce you in the exercise of your NLRB v. Mead Corp., 73 F.3d 74, 79 (6th reason it rejects other comments right to refrain from joining a union by Cir. 1996), enfg. Escanaba Paper Co., contending that the notice should threatening to inflict bodily harm or 314 NLRB 732 (1994). include the consequences of following you to your home and Given the lengthy list of potential unionization in the summary of NLRA refusing to leave unless you sign a special circumstances, the addition of rights, above. union card.’’ That comment also one or two examples of special The National Immigration Law Center suggests adding a provision stating that circumstances might mislead or confuse suggests that the Board add the it is unlawful for a union to ‘‘promise employees into thinking that the right to following to the notice poster: to waive your union initiation fee if you wear union insignia in all other Under the NLRA, it is illegal for your agree to sign a union card before a vote circumstances was absolute. And employer to: Report you or threaten to report is taken.’’

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Another comment argues that the As with the examples of unlawful ‘‘bargain in good faith and in a genuine illegal union conduct portion of the employer activity, the Board concludes effort to reach a written, binding notice fails to fully inform employees of that the provisions concerning unlawful agreement.’’ As discussed above, by their rights as union members.109 In union activity, as proposed, are accurate referring to a ‘‘genuine effort’’ to reach contrast, another comment states a and informative, and, as with the notice agreement, the notice necessarily different position—that the list of illegal as a whole, strike an appropriate implies that the parties are not obliged union conduct ‘‘ostensibly relates only balance between being simultaneously to actually reach one. The duty to to restraint or coercion by a union in a instructive and succinct. Moreover, the bargain in good faith has many unionized environment.’’ 110 The Board finds it unnecessary to include components. See NLRB v. Katz, 369 U.S. comment further states that the Board additional examples of unlawful 736 (1962). And the suggestion that should have included examples of conduct so that the lists of employer employers do not have to agree to ‘‘union restraint or coercion in an and union activity are the same length certain proposals, although correct, does organizing setting’’ but gives no specific because the notice describes the central not account for the line of cases that examples. forms of unlawful conduct engaged in suggest that an important ingredient in ALFA suggests three changes to the by each type of entity. Still less is it good faith bargaining is a willingness to unlawful union activity section. First, necessary to add a host of additional compromise. See Phelps Dodge, 337 rather than say that the union may not examples of unlawful union conduct, NLRB 455 (2002). ‘‘threaten you that you will lose your with the result that the list of such Turning to the suggestion that the job,’’ a more comprehensive statement conduct would be much longer than the notice include language informing would be ‘‘threaten, harass, or coerce list of unlawful employer conduct. In employees of their right to ‘‘sue’’ the you in order to gain your support for the the Board’s view, the list of unlawful union if it fails to represent them fairly, union.’’ The Board agrees, except as union conduct in the proposed notice the Board has concluded that the notice regards ‘‘harass,’’ which is sometimes fairly informs employees of the types of sufficiently apprises employees of their used to characterize almost any sort of conduct that a union is prohibited from right to fair representation and of their union solicitation. Accordingly, the engaging in without providing right to file unfair labor practice charges statement will be modified to read unnecessary or confusing examples. with the Board should a union fail to ‘‘threaten or coerce you in order to gain Employees may contact the NLRB if fulfill that duty. The rights that your support for the union.’’ Second, they believe a union has violated the employees have to sue unions directly the comment suggests changing ‘‘cause NLRA. in court without coming to the Board or attempt to cause an employer to are beyond the scope of this rulemaking. discriminate against you’’ to e. Collective-Bargaining Provision ‘‘discriminate or attempt to discriminate The collective-bargaining provision of f. Coverage Provision against you because you don’t support the NPRM states that ‘‘if you and your In regard to coverage under the NLRA, a union.’’ The Board disagrees, because co-workers select a union to act as your the proposed notice states: the suggested change would shift the collective bargaining representatives, your employer and the union are The National Labor Relations Act covers focus of the provision away from the most private-sector employers. Excluded sort of conduct contemplated in the required to bargain in good faith and in from coverage under the NLRA are public- rule. See NLRA Section 8(b)(2), 29 a genuine effort to reach a written, sector employees, agricultural and domestic U.S.C. 158(b)(2). Third, the comment binding agreement setting your terms workers, independent contractors, workers suggests changing ‘‘take other adverse and conditions of employment. The employed by a parent or spouse, employees action against you based on whether union is required to fairly represent you of air and rail carriers covered by the Railway you have joined or support the union’’ in bargaining and enforcing the Labor Act, and supervisors (although to ‘‘take adverse action against you agreement.’’ 75 FR 80419. supervisors that have been discriminated The Board received only a few against for refusing to violate the NLRA may because you have not joined or do not be covered). 75 FR 80419. support the union.’’ The Board agrees comments on this provision of the and will modify this provision of the notice. Notably, COLLE requests the A comment from the National notice accordingly. inclusion of a limitation on the Immigration Law Center suggests adding Baker & McKenzie urges that a variety provision that employees have the right the following language: ‘‘The NLRA of other examples of unlawful union to bargain collectively, in order to protects the above-enumerated rights of conduct be added to the notice, clarify that the employer’s obligation is all employees, irrespective of their including requiring nonmembers to pay only to bargain in good faith and not immigration status. That protection a fee to receive contract benefits, necessarily to reach an agreement. A extends to employees without work disciplining members for engaging in second comment suggests that the authorization, though certain remedies activity adverse to a union-represented notice inform employees that they have in those circumstances may be limited. grievant, disciplining members for the right to ‘‘sue a union for unfairly Employers cannot threaten you or refusing to engage in unprotected representing the employee in intimidate you on the basis of you activity, engaging in careless grievance bargaining, contract administration, or a immigration status to prevent you from handling, failing to notify employees of discrimination matter.’’ joining or supporting a union, or their Beck rights, requiring employees to The Board has decided that no engaging in concerted activity for agree to dues checkoff instead of direct changes are necessary to the duty to mutual aid and protection.’’ payment, discriminatorily applying bargain paragraph. The Board is The Board has decided not to amend hiring hall rules, and conditioning satisfied that the proposed collective- the coverage provision in the final continued employment on the payment bargaining provision provides sufficient notice. Although the Board understands of a fine or dues in ‘‘right-to-work’’ guidance to employees about the that many immigrant employees may be states. exercise of these rights while still unsure whether they are covered by the staying within the constraints set by a NLRA, the notice does not include a list 109 See comment of National Association of necessarily brief employee notice. As to of covered employees. Including Manufacturers. the first comment, the notice states that specific coverage of immigrants, but not 110 See comment of ALFA. an employer and union have a duty to other classes of employees, may cause

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confusion for many employees. such means.111 An employer that requirements for posting in languages Currently, the language in the notice customarily posts notices to its other than English, details of the tracks statutory language and provides employees on an intranet or internet site requirement for electronic posting of only the list of employees excluded must display the required employee notices by employers that customarily from coverage. As a result, those notice on such a site prominently—i.e., communicate with their employees employees not listed under the no less prominently than other notices electronically, and ‘‘safe harbor’’ exclusions will reasonably believe they to employees. The Board proposed to provisions for Federal contractors that are covered employees under the give employers two options to satisfy are already posting the Department of statute. Any employees who are unsure this requirement. An employer may Labor’s notice of NLRA rights. of their status should contact a regional either download the notice itself and a. Location of Posting office of the NLRB. post it in the manner described above, The final notice as modified is set or post, in the same manner, a link to Section 104.202(d) of the proposed forth in the Appendix to Subpart A of the Board’s Web site that contains the rule requires that the notice be posted this rule. full text of the required employee ‘‘in conspicuous places, including all notice. In the latter case, the proposed places where notices to employees are 2. Posting Issues rule states that the link must contain the customarily posted.’’ Some employers prescribed introductory language from and their representatives, including law The Board proposed that the notice to the poster, which appears in Appendix firm Baker & McKenzie, comment that employees shall be at least 11 inches by to Subpart A, below. An employer that the proposed rule does not define 17 inches in size, and in such colors and customarily communicates with its ‘‘customarily.’’ The Board responds that type size and style as the Board shall employees by e-mail will satisfy the the term is used in its normal meaning prescribe. The proposed rule further electronic posting requirement by of ‘‘ordinarily’’ or ‘‘usually,’’ as it has provides that employers that choose to sending its employees an e-mail been used in the Board’s remedial print the notice after downloading it message containing the link described orders for decades.112 This standard is from the Board’s Web site must print in above. consistent with the posting color, and the printed notice shall be at The proposed rule provides that, requirements in the regulations and least 11 inches by 17 inches in size. where a significant number of an statutes of other agencies.113 Baker & Proposed § 104.202(d) requires all employer’s employees are not proficient McKenzie’s comment contends that the covered employers to post the employee in English, the employer must provide quoted phrase should read instead notice physically ‘‘in conspicuous the required electronic notice in the ‘‘where other legally-required notices to places, including all places where language the employees speak. This employees are customarily posted.’’ The notices to employees are customarily requirement can be met either by Board disagrees. As under the posted.’’ Employers must take steps to downloading and posting, as required in Department of Labor’s notice posting ensure that the notice is not altered, § 104.202(f), the translated version of requirement,114 the Board’s final rule defaced, or covered with other material. the notice supplied by the Board, or by clarifies that the notice must be posted Proposed § 104.202(e) states that the prominently displaying, as required in wherever notices to employees Board will print the notice poster and § 104.202(f), a link to the Board’s Web regarding personnel rules and policies provide copies to employers on request. site that contains the full text of the are customarily posted and are readily It also states that employers may poster in the language the employees seen by employees, not simply where download copies of the poster from the speak. The Board will provide other legally mandated notices are Board’s Web site, http://www.nlrb.gov, translations of that link. 75 FR 80417. posted. for their use. It further provides that Section 104.203 of the proposed rule A number of comments from employers may reproduce exact provides that Federal contractors may employers 115 and individuals take the duplicates of the poster supplied by the comply with the requirements of the position that it is time to move away Board, and that they may also use rule by posting the notices to employees from paper posters and to encourage commercial poster services to provide required under the Department of employees to inform themselves of their the employee notice consolidated onto Labor’s notice-posting rule, 29 CFR part rights through the Internet. Many one poster with other Federally 471. Id. comments object that the posting mandated labor and employment The Board solicited comments on its requirement will add to already notices, as long as consolidation does proposed requirements for both physical cluttered bulletin boards or necessitate not alter the size, color, or content of the and electronic notice posting. In additional bulletin boards.116 The Board poster provided by the Board. Finally, addition, the Board solicited comments responds to these comments above in employers that have significant numbers on whether it should prescribe section II, subsection C, Factual Support of employees who are not proficient in standards regarding the size, clarity, for the Rule. The Council of Smaller English will be required to post notices location, and brightness of the of employee rights in the language or electronic link, including how to 112 See, e.g., The Golub Corporation, 159 NLRB languages spoken by significant prescribe electronic postings that are at 355, 369 (1966). numbers of those employees. The Board least as large, clear, and conspicuous as 113 See, e.g., 29 CFR 1903.2 (Occupational Safety will make available posters containing the employer’s other postings. and Health Act); 29 CFR 1601.30 (Title VII of the The Board received numerous Civil Rights Act of 1964); 42 U.S.C. 2000e-10(a) the necessary translations. (Americans with Disabilities Act); 29 U.S.C. 2619(a) comments concerning the technical In addition to requiring physical (Family and Medical Leave Act). requirements for posting the notices of 114 posting of paper notices, proposed 75 FR 28386. employee rights. Those comments 115 See, e.g., comments of Buffalo Wild Wings; § 104.202(f) requires that notices be address the locations where notices Associated Milk Producers, Inc.; Smitty’s, Inc.; distributed electronically, such as by e- would be physically posted, physical National Grocers Association; and Sorensen/Wille, mail, posting on an intranet or an Inc. characteristics of the posters, internet site, and/or other electronic 116 See, e.g., comments of Dr. Pepper Snapple Group; Georgia Caremaster Medical Services; means, if the employer customarily 111 See J. Picini Flooring, 356 NLRB No. 9, slip op. Homestead Village, Inc.; Exodus Designs & communicates with its employees by at 6 (2010). Surfaces; Bonnie Dedmore State Farm.

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Enterprises further maintains that the post a notice or cause a notice to be The Board has decided to retain the requirement to ensure that the notice is posted directed to its own employees. 11x17-inch poster size. As the NPRM conspicuous and not altered or defaced Retail Industry Leaders Association states, the Board will furnish paper imposes an unnecessary burden on asks whether the rule would apply to copies of the notice, at no charge, to employers. Caremaster Medical overseas employees of American employers that ask for them. Employers Services’ comment asks whether employers. The answer to that question that prefer to download and print the periodic inspections of the notices will is generally ‘‘no’’; the Board’s notice from the Board’s Web site will be conducted and, if so, by whom. jurisdiction does not extend to have two formats available: a one-page Specifically, this comment expresses American employees engaged in 11x17-inch version and a two-page 8 concern that employers will be forced to permanent employment abroad in 1⁄2x11-inch version, which must be permit union officials to enter their locations over which the United States printed in landscape format and taped facilities to inspect the notices. The rule has no legislative control. See Computer together to form the 11x17-inch poster. does not provide for such inspections or Sciences Raytheon, 318 NLRB 966 In response to the comments objecting alter current standards regarding union (1995). Employers of employees who are to the added expense of obtaining color access to employers’ premises. Rather, working abroad only temporarily are not copies through outside sources, the the Board contemplates that an required to post the notice in foreign Board has revised the rule to delete the employer’s failure to comply with the workplaces. requirement that reproductions of the rule will be brought to the attention of notice be in color, provided that the the employer or the Board by employees b. Size and Form Requirements reproductions otherwise conform to the or union representatives who are Many comments from organizations Board-provided notice. Accordingly, the lawfully on the premises. and individuals object to the 11x17-inch Board concludes that obtaining copies The International Union of Operating size prescribed by the proposed rule.119 of the notice will not be difficult or Engineers comments that the rule needs They argue that most employers do not expensive for employers. to apply to the marine construction have the capacity to make 11x17-inch The Board finds no merit to the other industry, in which employees work at color copies and will have to use objections to the 11x17-inch poster size. remote sites and do not necessarily see commercial copy services, which some Contrary to some comments, the Board a posting in the office. Another contend are expensive. A human does not believe that employees would comment similarly states that the rule is resources official also asserts that other think that NLRA rights are more not practical for small employers with required notices are smaller, and that important than other statutory rights, dispersed employees, e.g., trucking or the larger poster will be more eye- merely because the notice of NLRA insurance companies.117 Similarly, one catching, implying that NLRA rights are rights is somewhat larger than notices comment contends that the requirement more important. Other comments prescribed under some other statutes. It is burdensome for construction support the proposed 11x17-inch size, would seem that, upon learning of all of employers, whose employees report to stating that the notice should stand out their rights in the workplace, employees various worksites.118 The Board and be in large print, with one comment will determine from their understanding recognizes that certain work situations, specifying that the title should be of the rights themselves, rather than the such as those mentioned in the larger.120 The AFL–CIO argues that size of the various posters, which rights comments, present special challenges employers should not be permitted to (if any) are more important to them than with regard to physical posting. download the notice from the Board’s others. In the Board’s view, adopting a However, the Board concludes that Web site if their limited printing subjective ‘‘3′ rule’’ or a ‘‘legibility these employers must nonetheless post capacity would make it less eye- standard’’ could lead to disagreements the required notice at their work catching. over whether a particular poster was premises in accordance with the A few comments contend that the ‘‘legible’’ or could be read at a distance proposed rule. Electronic posting will prescribed size will make it difficult to of 3 feet. In addition, if, as some also aid the employers in providing the include in consolidated posters of comments contend (without citing notice to their employees in the manner various statutory rights, as the proposed specifics), the size of the Board’s notice in which they customarily communicate rule permits.121 One comment urges the will pose a problem for manufacturers with them. Board to follow the ‘‘3′ rule,’’ according of consolidated posters to include it TLC Companies contends that to which a notice is large enough if it with posters detailing other workplace professional employer organizations can be read from a distance of 3 feet,122 rights, that would seem to be a problem (PEOs) such as itself should be exempt and another suggests only a legibility best left to those manufacturers to solve. 123 from the rule’s requirements. It explains requirement. One comment states c. Language Issues that PEOs are ‘‘co-employers’’ of a client that minor deviations, such as 1⁄4 inch, employer’s employees, providing should not be deemed violations.124 The proposed rule requires that, payroll and other administrative Another comment expresses a concern ‘‘[w]here a significant portion of an services. However, it asserts that PEOs that a large, prominent poster could employer’s workforce is not proficient have no control over the client cause a few unhappy employees to in English, the employer must provide employer’s worksite. Accordingly, TLC begin activity that could result in the notice in the language the Companies is concerned that a PEO divisiveness in a small facility.125 employees speak.’’ This is the same could be found liable for its client’s standard applied in the Department of failure to post the notice. The Board 119 See, e.g., comment of Associated General Labor’s notice of NLRA rights for federal contemplates that employers will be Contractors (AGC) of Iowa. contractors (29 CFR 471.2(d)) and in the required to physically post a notice only 120 See, e.g., comments of AFL–CIO and three notice required under the Family and Georgetown University Law Center students. Medical Leave Act (29 CFR 825.300(4)). on their own premises or at worksites 121 See, e.g., comment of Sinnissippi Centers. Many comments support the where the employer has the ability to 122 AGC of Iowa. 123 Sinnissippi Centers. requirement and availability of 117 Comment of TLC Companies. 124 National Council of Agricultural Employers. translated notices, particularly as an 118 Comment of NAI Electrical Contractors. 125 Mercy Center Nursing Unit Inc. essential way of informing immigrant

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employees about their rights.126 But notice to those employees in their assist in providing the prescribed notice several comments complain that the respective language or languages or to to employees. As some comments state, rule does not define ‘‘significant.’’ 127 direct them to the Board’s Web site, electronic communication is now a Baker & McKenzie proposes that the http://www.nlrb.gov, where they can routine practice in many workplaces standard be 40 percent specifically of obtain copies of the notice in their and the source of much information the employer’s production and respective languages. The Board has from employers to their employees. maintenance workforce, while the also decided to add to the notice However, the Board has clarified the National Immigration Law Center instructions for obtaining foreign- final rule to mandate only that, if an proposes a 5 percent standard. Another language translations of the notice. employer customarily communicates comment urges that translated notices Employers will be required to request personnel rules or policies to its be required whenever any of the foreign-language notices from the Board employees in that manner, it must also employees are not proficient in or obtain them from the Board’s Web do so with respect to the notice of English.128 The U.S. Chamber of site in the same manner as the English- employee rights under the NLRA. The Commerce asserts that a safe harbor is language notice. If an employer requests concern that the rule will discourage needed for employers when a notice in from the Board a notice in a particular employers from using new technologies a particular language is not yet available language in which the notice is not is apparently not widely shared and, in from the Board. Moreover, a few available, the requesting employer will the Board’s view, is implausible. comments contend that the Board not be liable for non-compliance with Although the Board recognizes that should also provide Braille notices for the rule until the notice becomes some other statutes and regulations do vision-impaired employees, as well as available in that language. not require electronic notice, it notes audio versions for illiterate employees, With respect to employees who are that they generally predated the routine and versions of the notice that are vision-impaired or those who are use of electronic communications in the adaptable to assistive technologies.129 illiterate, employers may consult the workplace. Having only recently begun One individual proposes that the rule Board’s Regional Office on a case-by- ordering electronic posting of remedial mandate that employers read the notice case basis for guidance on appropriate notices,131 the Board has limited to employees when they are hired and methods of providing the required experience in this area, and employers to all employees annually. notice, including by audio recording. are encouraged to contact the local Having carefully considered the d. Electronic Posting Regional Office with questions about comments, the Board has decided to this provision. The Board does not agree define ‘‘significant’’ in terms of foreign- Many employer comments oppose the that employers should be permitted to language speakers as 20 percent or more requirement for electronic notice. The choose whether to provide physical or of an employer’s workforce. Thus, if as Coalition for a Democratic Workplace electronic notice, because some many as 20 percent of an employer’s points out that other agencies do not employers could select the less effective employees are not proficient in English require both electronic and physical of these alternatives, thus undermining but speak the same foreign language, the posting and asserts that only one the purpose of the rule. Finally, the employer must post the notice in that method is necessary. For example, the rights stated in the notice are not language, both physically and Coalition notes that the Family and accurately described as pertaining solely electronically (if the employer is Medical Leave Act notice obligation is to union membership, and the notice is otherwise required to post the notice satisfied by electronic posting alone, not intended to promote union electronically). If an employer’s and other statutes do not mention membership or union representation. workforce includes two or more groups electronic posting. The National Council Rather, the notice addresses a broad constituting at least 20 percent of the of Agricultural Employers urges the range of employee legal rights under the workforce who speak different Board to require electronic posting only NLRA, which involve protected languages, the employer must either if the employer posts other statutory or concerted activity as well as union physically post the notice in each of regulatory notices in that fashion. activity in both organized and those languages or, at the employer’s Another proposes that employers be unorganized workplaces, and also the option, post the notice in the language permitted to choose either physical or right to refrain from any such activity. spoken by the largest group of electronic posting. The National Many employer comments note that employees and provide each employee Association of Manufacturers remarks the proposed rule also does not define in each of the other language groups a that the proposed rule breaks new ‘‘customarily’’ as it pertains to copy of the notice in the appropriate ground for using an employer’s email electronic posting in § 104.202(f), i.e., language. If such an employer is also system to communicate information the type and degree of communication required to post the notice about ‘‘union membership.’’ The U.S. that triggers the requirement.132 electronically, it must do so in each of Chamber of Commerce suggests that this Numerous employers also participated those languages. If some of an aspect of the rule would chill in a postcard campaign objecting, employer’s employees speak a language employers’ use of new technologies. On among other things, that employers use not spoken by employees constituting at the other hand, the AFL–CIO and a wide variety of technology to least 20 percent of the employer’s several other commenters 130 support communicate with employees and that workforce, the employer is encouraged, electronic as well as physical posting; the rule could require them to use all but not required, either to provide the the Center for American Progress Action methods to convey the notice.133 For Fund, among others, points out that 126 See, e.g., comments of National Immigration electronic communications at work are 131 J. Picini Flooring, 356 NLRB No. 9 (2010). Law Center, Legal Aid Society—Employment Law standard now. 132 See, e.g., comments of International Center, and La Raza Centro Legal; Filipino After carefully considering these Foodservice Distributors Association (IFDA); Advocates for Justice. comments, the Board concludes that Associated Builders and Contractors; Los Angeles 127 See, e.g., comments of COLLE; Food Marketing County Business Federation; National Roofing Institute (FMI). electronic posting will substantially Contractors Association. 128 Georgetown law students. 133 See, e.g., comments of American Home 129 See, e.g., Baker & McKenzie; Heritage 130 See, e.g., comments of Gibson, Dunn, Cohen, Furnishings Alliance; Seawright Custom Precast; Foundation; Georgetown law students. Leifer & Yellig, P.C.; Beeson, Tayer & Bodine. Continued

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example, they ask whether an employer postings required under the final rule employers be allowed to choose to that occasionally uses text messaging or will be those on internet or intranet maintain the Department of Labor’s Twitter to communicate with employees sites. notice, although another comment would have to use those technologies Many comments address the asserts that employees might think that and, if so, how they would be able to characteristics of electronic posting, as the notice is no longer applicable comply with the rule, in view of the prescribed in § 104.202(f). In the NPRM, because of the lack of a current contract. length restrictions of these media. The the Board proposed not to prescribe the Another comment raises the possibility U.S. Chamber of Commerce raises the size, clarity, location, or brightness of an that either the Board or the Department same issue regarding faxing, voice mail, electronic notice or link to the notice, of Labor could decide to change its and instant messaging. The National but rather require that it be at least as notice and emphasized that they need to Roofing Contractors Association notes prominent as other electronic notices to be identical in order to provide the safe that some employers use email to employees, as the Department of Labor’s harbor. The Board responds that a communicate with certain employees, rule requires. No comments suggest Federal contractor that complies with while other employees have no access to more specific requirements; the the Department of Labor’s notice- email during their work day. As to email Michigan Health & Hospital Association posting rule will be deemed in communication itself, an individual argues that such requirements would compliance with the Board’s observes that many employees change result in inadvertent noncompliance. requirement.135 jobs every 3 to 4 years, and an email The Board has decided to adopt the reaches only those in the workforce at Department of Labor’s approach, as 3. Exceptions a specific time. The same comment proposed in the NPRM. The rule applies only to employers notes that the proposed rule does not Baker & McKenzie urges that the title that are subject to the NLRA. Under state when or how often email notice of the link in the proposed rule be NLRA Section 2(2), ‘‘employer’’ should be provided. Three Georgetown changed to ‘‘Employee Rights under the excludes the United States government, law students recommend that the rule National Labor Relations Act’’ rather any wholly owned government mandate email as well as intranet notice than ‘‘Important Notice about corporation, any Federal Reserve Bank, to employees when it goes into effect Employees Rights to Organize and any State or political subdivision, and and written notice to new employees Bargain Collectively with Their any person subject to the Railway Labor within a week of their starting Employers.’’ The Board agrees and has Act, 45 U.S.C. 151 et seq. 29 U.S.C. employment. revised the rule accordingly. 152(2). Thus, under the proposed rule, The Board responds that, as discussed A comment from Vigilant states that those excluded entities are not required above regarding the location of posting, a link to the Board’s Web site, which is to post the notice of employee rights. ‘‘customarily’’ is used in its normal one means of electronic posting, should The proposed rule also does not apply meaning. This provision of the rule not be required to include the to entities that employ only individuals would not apply to an employer that introductory language of the notice. The who are not considered ‘‘employees’’ only occasionally uses electronic means Board agrees, noting that the under the NLRA. See Subpart A, below; to communicate with employees. Department of Labor takes this 29 U.S.C. 152(3). Finally, the proposed However, in view of the numerous approach, and will not require that rule does not apply to entities over comments expressing concern over the electronic links to the Board’s Web site which the Board has been found not to proposed rule’s email posting include the introductory language. have jurisdiction, or over which the requirements, the Board has decided not For the foregoing reasons, the Board Board has chosen through regulation or to require employers to provide the has decided to retain the posting adjudication not to assert notice to employees by means of email requirements as proposed in the NPRM, jurisdiction.136 The Board proposed that and the other forms of electronic modified as indicated above. all employers covered under the NLRA communication listed in the previous would be subject to the notice posting e. Compliance With the Department of paragraph. In the Board’s judgment, the rule. 75 FR 80413. Labor’s Rule potential for confusion and the prospect The Coalition for a Democratic of requiring repeated notifications in Several comments opposing the Workplace argues that the final rule order to reach new employees outweigh proposed rule urge that, if the rule cannot be applied to religiously- the benefits that could be derived at the becomes final, the Board should retain affiliated employers. The Coalition margin from such notifications. All the ‘‘safe harbor’’ provided for Federal argues that assertion of jurisdiction employers subject to the rule will be contractors that comply with the would ‘‘substantially burden [such required to post the notice physically in Department of Labor’s notice posting employers’] exercise of religion in their facilities; and employers who rule.134 However, the U.S. Chamber of violation of both the First Amendment customarily post notices to employees Commerce states that some employers and the Religious Freedom Restoration regarding personnel rules or policies on post the Department of Labor’s notice at Act.’’ Similarly, Seyfarth Shaw contends an internet or intranet site will be facilities where it is not required or that religiously-affiliated healthcare required to post the Board’s notice on where Federal contract work is those sites as well. Moreover, those performed only sporadically. It 135 A few comments ask whether the Board’s rule notices (unlike the Board’s election and questions whether such employers must would preempt the Department of Labor’s rule. remedial notices) must remain posted; replace the Department of Labor’s notice Because the answer to that question would not thus, it is reasonable to expect that even affect the validity of the Board’s rule, the Board with the Board’s when no contract work finds it unnecessary to take a position on that issue though some employees may not see the is being performed, or whether they can in this proceeding. notices immediately, more and more comply with the Board’s rule by leaving 136 The proposed rule excludes small businesses will see them and learn about their the Department of Labor’s notice in whose impact on interstate commerce is de minimis NLRA rights as time goes by. or so slight that they do not meet the Board’s place. The Chamber proposes that discretionary jurisdiction requirements. See Accordingly, the only electronic generally An Outline of Law and Procedure in 134 See, e.g., comments of IFDA; Estes; The Sack Representation Cases, Chapter 1, found on the Mount Sterling, Kentucky Chamber of Commerce; Company; National Roofing Contractors Board’s Web site, http://www.nlrb.gov, and cases U.S. Xpress, Inc. Association. cited therein.

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institutions should be excluded from requirements. Those alternatives, not all requirement may affect other Board coverage if they are nonprofit and hold of which are mutually exclusive, were proceedings.137 themselves out to the public as being (1) Finding the failure to post the The Board received several hundred religious. required notices to be an unfair labor comments regarding the proposed The Board examines jurisdictional practice; (2) tolling the statute of means of enforcing the notice posting issues on a case-by-case basis, and the limitations for filing unfair labor requirement. Those that favor Board’s jurisdiction jurisprudence is practice charges against employers that implementing the rule also favor the highly complex. The Board has asserted fail to post the notices; (3) considering proposed enforcement mechanisms.138 jurisdiction over some religiously- the willful failure to post the notices as Those opposing the rule generally affiliated employers in the past, but has evidence of unlawful motive in unfair declined to assert jurisdiction over other oppose all three enforcement labor practice cases; (4) voluntary mechanisms. religiously-affiliated employers. See, compliance. 75 FR 80413–80414. e.g., Ecclesiastical Maintenance Service, As explained in the NPRM, the Board A. Noncompliance as an Unfair Labor 320 NLRB 70 (1995), and St. Edmund’s considered but tentatively rejected Practice High School, 337 NLRB 1260 (2002). In relying solely on voluntary compliance. Ukiah Valley Medical Center, the Board This option logically would appear to be The rule requires employers to inform found that neither the First Amendment the least conducive to an effective employees of their NLRA rights because nor the Religious Restoration Act enforcement of the notice-posting the Board believes that employees must precludes the Board from asserting requirement, and the Board’s limited know their rights in order to exercise jurisdiction over a religiously-affiliated experience with voluntary posting of them effectively. Accordingly, the Board employer. 332 NLRB 602 (2000). If an notices of employee rights seems to may find that an employer that fails or employer is unsure whether the Board confirm this. When an election petition refuses to post the required notice of has jurisdiction over its operations, it is filed, the Board’s Regional Office employee rights violates Section 8(a)(1) may contact the Board’s regional office. sends the employer Form NLRB–5492, of the NLRA, 29 U.S.C. 158(a)(1) by In its comment, the United Stated Notice to Employees, together with a ‘‘interfer[ing] with, restrain[ing], or Postal Service points out that it has leaflet containing significant ‘‘Rights of coerc[ing] employees in the exercise of different statutory rules from those Employees.’’ See the Board’s the rights guaranteed in section 7 (29 covering other private sector employees. Casehandling Manual, Part Two— U.S.C. 157).’’ Labor relations in the Postal Service are Representation Proceedings, Section As it explained in the NPRM, the governed by Chapter 12 of the Postal 11008.5, found on the Board’s Web site, Board expects that most employers that Reorganization Act of 1970, 39 U.S.C. http://www.nlrb.gov. The Regional fail to post the required notice will do 1201 et seq. Section 1209(a) of the Office also asks employers to post the Postal Reorganization Act generally so simply because they are unaware of notice of employee rights in the makes the NLRA applicable to all the rule, and that when it is called to workplace; however, the Board’s employee-management relations ‘‘to the their attention, they will comply experience is that the notices are seldom extent not inconsistent with the without the need for formal posted. Id. at 80414. Moreover, because provisions of this title.’’ As raised by the administrative action or litigation. the notice is voluntary and there is no comment, there are indeed several areas When that is not the case, the Board’s enforcement scheme, there is no remedy in which the Postal Reorganization Act customary procedures for investigating to fix the problem when the notice is is inconsistent with the NLRA. The and adjudicating alleged unfair labor not posted. The Board has found principal differences are that an agency practices may be invoked. See NLRA nothing in the comments to the NPRM shop is prohibited (id. section 1209(a)) Sections 10 and 11, 29 U.S.C. 160, 161; that would give it reason to believe that 139 and that postal employees may not 29 CFR part 102, subpart B. When the voluntary compliance would be any strike. Id. Section Board finds a violation, it will more effective under the present notice 410(b)(1)(incorporating 5 U.S.C. 7311). customarily order the employer to cease In light of these differences, the Board rule. Therefore, the Board has decided and desist and to post the notice of agrees that a postal worker-specific not to rely on voluntary compliance. notice is necessary. The Board, Instead the final rule provides that 137 The tolling and animus provisions are not failing to post the notice may be found remedies in the usual sense of the term; however, however, does not wish to create a these provisions inform the public of the impact notice without the benefit of specific to be an unfair labor practice and may also, in appropriate circumstances, be that violations of the notice posting obligation may public comment on this issue. have in other NLRB proceedings. As described Accordingly, the Board will exclude the grounds for tolling the statute of below, these impacts are not a ‘‘punishment’’ for limitations. In addition, a knowing and noncompliance. To the contrary, the tolling United States Postal Service from provision is intended to ensure that noncompliance coverage under the final rule; the Board willful failure to post employee notices may be found to be evidence of with the notice posting requirement does not may, at a later date, request comments prejudice innocent employees. And the animus on a postal worker-specific notice. unlawful motive in an unfair labor provision is intended to inform the public that practice case. (As the Board also knowing and willful violations of the rule may Subpart B—Enforcement and explained in the NPRM, it did not support an inference of animus toward NLRA Complaint Procedures consider imposing monetary fines for rights. 138 See, e.g., Harkin and Miller, National Subpart B of the rule contains noncompliance, because the Board lacks Employment Law Project, Public Justice Center, Inc. procedures for enforcement of the the statutory authority to impose 139 The Board’s General Counsel has employee notice-posting requirement. In ‘‘penalties or fines.’’ See, e.g., Republic unreviewable discretion as to whether to issue a Steel Corp. v. NLRB, 311 U.S. 7, 10–12 complaint in an unfair labor practice proceeding. crafting Subpart B, the Board was See, e.g., Vaca v. Sipes, 386 U.S. 171, 182 (1967). mindful of the need to identify an (1940).) These provisions have two The General Counsel has exercised that discretion effective remedy for noncompliance purposes: to ensure that any violations to refuse to proceed with meritorious charges when with the notice-posting requirement. of the notice-posting requirement that it would not serve the purposes of the Act. See The Board gave careful consideration to occur may be remedied where General Counsel memoranda 02–08 and 95–15. This necessary, and to describe how discretion includes dismissing any charge filed several alternative approaches to against an employer that is not covered by the enforcing the rule’s notice-posting violations of the notice-posting Board’s jurisdictional requirements.

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employee rights as well as a remedial surveillance of employees’ union Communications Workers v. Beck, notice.140 75 FR 80414. activities, threatening employees with above, violates Section 8(b)(1)(A) of the The comments opposing this proposal retaliation for engaging in protected NLRA. California Saw & Knife Works, make three principal arguments. First, activities—to violate Section 8(a)(1) by above, 320 NLRB at 233, 259, 261. An only Congress, not the Board, has the ‘‘interfer[ing] with, restrain[ing], or employer that fails or refuses to execute authority to ‘‘create a new unfair labor coerc[ing] employees in the exercise of an agreed-to collective-bargaining practice.’’ 141 Second, even if the Board the rights guaranteed in section 7’’ of agreement on request of the union possesses such authority, it has not the NLRA. Section 8 is equally silent violates Section 8(d), 8(a)(5) and, identified the Section 7 rights that concerning unions’ duty to inform derivatively, Section 8(a)(1). An would be interfered with by an employees of their rights under NLRB v. employer that fails to provide relevant employer’s failure to post the notice.142 General Motors, above, and information requested by the union that Third, ‘‘interfer[ing] with, restrain[ing], Communications Workers v. Beck, represents the employer’s employees or coerc[ing]’’ employees within the above, before attempting to obligate violates Section 8(a)(5) and (1). See, e.g., meaning of NLRA Section 8(a)(1) them pursuant to a union-security NLRB v. Truitt Mfg. Co., 351 U.S. 149 necessarily involves action, not failure clause, yet the Board finds that a (1956). to act; therefore, failure to post the union’s failure to provide that notice The NLRA’s recognition that a failure notice cannot violate Section 8(a)(1).143 restrains and coerces employees in to perform a legal duty may constitute The Board finds no merit in any of these violation of Section 8(b)(1)(A). unlawful interference, coercion or contentions. California Saw & Knife Works, above, restraint is not unique. Courts have To begin with, it is incorrect to say 320 NLRB at 233, 259, 261.144 expressly held that the failure to post that the Board lacks the authority to find Because, as described in detail above, notice required by regulation can be an that failure to post the notice violates notice posting is necessary to ensure ‘‘interference’’ with employee Family Section 8(a)(1) without Congressional effective exercise of Section 7 rights, a and Medical Leave Act rights. In a approval. It is true, as the Society for refusal to post the required notice is at provision that ‘‘largely mimics th[e Human Resource Management states, least an interference with employees’ language of] § 8(a)(1) of the NLRA,’’ that ‘‘Section 10(a) of the Act exercise of those rights. For these Bachelder v. Am. W. Airlines, 259 F. 3d specifically limits the NLRB’s powers to reasons, in finding that an employer’s 1112, 1123 (9th Cir. 2001), the FMLA preventing only the unfair labor failure to post the required notice states that ‘‘[i]t shall be unlawful for any practices listed in Section 8 of the Act. interferes with, restrains, or coerces employer to interfere with, restrain, or Section 8 is silent regarding any notice employees in the exercise of their NLRA deny the exercise of or the attempt to posting requirement (emphasis in rights, in violation of Section 8(a)(1), the exercise, any right provided under this original).’’ However, as the Supreme Board is acting consistently with its title.’’ 29 U.S.C. 2615(a)(1). In Court remarked long ago, settled practice. Some comments claim interpreting this language, the The [NLRA] did not undertake the that the Board has not identified any Department of Labor’s regulations impossible task of specifying in precise and specific Section 7 right to justify this specifically state that failure to post the unmistakable language each incident which remedy. But such specificity is not required notice of FMLA rights ‘‘may would constitute an unfair labor practice. On needed, because all Section 7 rights are constitute an interference with, the contrary that Act left to the Board the implicated by an employer’s failure to restraint, or denial of the exercise of an work of applying the Act’s general post the required notice. As previously employee’s FMLA rights’’ under section prohibitory language in the light of the infinite combinations of events which might stated, there is a strong nexus between 2615(a)(1). 29 CFR 825.300(e). Courts be charged as violative of its terms. Thus a knowledge of Section 7 rights and their have agreed, finding that the failure to ‘‘rigid scheme of remedies’’ is avoided and free exercise. It therefore follows that an provide FMLA notices is an ‘‘adverse administrative flexibility within appropriate employer’s failure to post this notice, action’’ against the employee that statutory limitations obtained to accomplish which informs employees of their supports a prima facie case of the dominant purpose of the legislation. Section 7 rights, reasonably tends to interference. Greenwell v. Charles Republic Aviation Corporation v. NLRB, interfere with the exercise of such Machine Works, Inc., (W.D. Ok. April 324 U.S. 793, 798 (1945) (citation rights. 15, 2011); Smith v. Westchester County, omitted). Accordingly, since its Finally, although most violations of (S.D.N.Y. February 14, 2011). creation, the Board in interpreting the NLRA involve actions rather than Accordingly, the Board finds no Section 8(a)(1) has found numerous failures to act, there are instances in impediment to declaring that an actions as to which ‘‘Section 8 is which a failure to act may be found to employer’s failure to post the required silent’’—e.g., coercively interrogating interfere with, restrain, or coerce notice will violate Section 8(a)(1).145 employees about their protected employees in the exercise of their As it explained in the NPRM, concerted activities, engaging in Section 7 rights. Thus, a union’s failure however, the Board expects that, in to provide the required notices under practice, few violations will be found 140 Consistent with precedent, it will be unlawful NLRB v. General Motors, above, and for failures to post the notice. The Board for an employer to threaten or retaliate against an anticipates that most employers that fail employee for filing charges or testifying in a Board 144 See Harkin and Miller. Although the Board to post the notice will do so because proceeding involving an alleged violation of the suggested in a footnote in California Saw that there they are unaware of the rule, and that notice-posting requirement. NLRA Sections 8(a)(1), was no obligation to inform employees of their 8(a)(4), 29 U.S.C. 158(a)(1), (4); Romar Refuse Section 7 rights, 320 NLRB at 232 n. 42, this dicta when they learn about the rule, they Removal, 314 NLRB 658 (1994). merely indicated that no such obligation had yet will post the notice without the need for 141 See, e.g., comments of FMI, Assisted Living been recognized in that particular context. To the formal administrative action or Federation of America (ALFA). extent it could be read as denying that such an litigation. 75 FR 80414. To that end, 142 See, e.g., comment of U. S. Chamber of obligation may exist, it is the considered view of the Commerce. Board that this reading must be rejected. Similarly, § 104.212(a) of the rule states that if an 143 See, e.g., comments of Employment and Labor the statement in U.S. Postal Service, 241 N.L.R.B. Law Committee, Association of Corporate Counsel 141, 152 (1979), regarding affirmative notice 145 ALFA contends that failure to post a Board- (‘‘ACC’’); California Chamber of Commerce obligations is limited to Weingarten rights, and, in required notice is not an unfair labor practice, but (California Chamber); and National Council of any event, does not suggest that notice of NLRA the authorities cited do not support that Agricultural Employers (NCAE). rights may never be required. proposition.

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unfair labor practice charge is filed an employer promptly posts the notice, ambiguous on the issue. Irwin v. Dep’t alleging failure to post the notice, ‘‘the ‘‘there will be no further administrative Veterans Affairs, 498 U.S. 89, 94–96 Regional Director will make reasonable proceedings, unless the Board has (1990); Zipes v. Trans World Airlines, efforts to persuade the respondent information giving the Board reason to Inc., 455 U.S. 385, 392–98 (1982); see employer to post the * * * notice believe that the preceding failure to do Young v. United States, 535 U.S. 43, 49 expeditiously,’’ and that ‘‘[i]f the so was intentional.’’ The Board rejects (2002) (‘‘It is hornbook law that employer does so, the Board expects these suggestions because they would limitations periods are customarily that there will rarely be a need for create unnecessary obstacles to effective subject to equitable tolling, unless further administrative proceedings.’’ 75 enforcement of the notice requirement. tolling would be inconsistent with the FR 80419. That requirement is straightforward, and text of the relevant statute.’’ (quotations Numerous comments assert that compliance should be a simple matter. and citations omitted)); Hallstrom v. finding the failure to post the notice to The Board believes that the General Tillamook County, 493 U.S. 20, 27 be an unfair labor practice is too harsh Counsel should have discretion to (1989) (‘‘The running of such statutes is a remedy, especially for small address particular cases of non- traditionally subject to equitable employers that are more likely to be compliance efficiently and tolling.’’); Honda v. Clark, 386 U.S. 484, excusably unaware of the rule.146 As appropriately, depending upon the 501 (1967); Glus v. Brooklyn E.D. just stated, in practice it should almost circumstances. Terminal, 359 U.S. 231, 232–33 (1959) never be necessary for proceedings to (equitable tolling of statutes of B. Tolling the Section 10(b) Statute of reach that point. For the few employers limitations is ‘‘[d]eeply rooted in our Limitations that may ultimately be found to have jurisprudence’’); Holmberg v. violated Section 8(a)(1) by failing to post NLRA Section 10(b) provides in part Armbrecht, 327 U.S. 392, 396–97 (1946) the notice of employee rights, the only that ‘‘no complaint shall issue based (equitable tolling is ‘‘read into every certain consequences will be an order to upon any unfair labor practice occurring federal statute of limitation’’). cease and desist and that the notice and more than six months prior to the filing In Zipes, the Supreme Court held that a remedial notice be posted; those of the charge with the Board[.]’’ 29 the timeliness provision of Title VII’s remedies do not strike the Board as U.S.C. 160(b). However, as the Board charge-filing requirement was ‘‘subject severe. stated in the NPRM, the 6-month filing to waiver, estoppel and equitable Michigan Health & Hospital period does not begin to run until the tolling.’’ 455 U.S. at 392–98. The Association urges that an employer be charging party has actual or constructive Supreme Court expressly analogized to allowed to correct an initial failure to notice of the allegedly unlawful the NLRA, and stated that Section10(b) post the notice without further conduct. See, e.g., John Morrell & Co., was not jurisdictional: ‘‘[T]he time consequences; Fireside Distributors, Inc. 304 NLRB 896, 899 (1991), review requirement for filing an unfair labor agrees and asks that technical violations denied 998 F.2d 7 (D.C. Cir. 1993) practice charge under the National of the rule not be subject to a finding of (table). 75 FR 80414. This makes Labor Relations Act operates as a statute a violation. The Heritage Foundation intuitive sense, because it would be of limitations subject to recognized backs the same approach for inadvertent unfair to expect charges to be filed equitable doctrines and not as a failures to post. The Board disagrees. To before the charging party could restriction of the jurisdiction of the repeat, the Board anticipates that most reasonably have known that the law was National Labor Relations Board.’’ Id. at employers that inadvertently fail to post violated. Similar concerns for fairness n.11. Zipes strongly supports the the notice will do so on being informed justify tolling the statute of limitations proposed rule. The analogy between of the posting requirement, and that in where an employee, although aware of Title VII and the NLRA is well those circumstances further proceedings the conduct in question, is excusably established, and neither the holding of will rarely be required. However, the unaware that the conduct is unlawful Zipes regarding Title VII nor Zipes’ Board believes that this matter is best because mandatory notice was not given characterization of 10(b) has ever been handled through the General Counsel’s to the employee. The Board found that called into doubt. traditional exercise of prosecutorial widespread ignorance of NLRA rights Notices of employment rights are discretion in accordance with the justified requiring notice to be posted. intended, in part, to advise employees directions given here. The Board cited the observation of the of the kinds of conduct that may violate California Chamber and NCAE U.S. Court of Appeals for the Third their rights so that they may seek contend that the Board should specify Circuit in a case involving the failure to appropriate remedies when violations the ‘‘reasonable efforts’’ a Regional post the notice required under the occur. Failure to post required notices Director will make to persuade an ADEA, that ‘‘[t]he [ADEA] posting deprives employees of both the employer to post the notice when a requirement was undoubtedly created knowledge of their rights and of the charge alleging a failure to post has been because Congress recognized that the availability of avenues of redress. filed. They propose that the rule be very persons protected by the Act might Accordingly, a substantial majority of amended to state that the Board will be unaware of its existence.’’ Bonham v. the courts of appeals—including the send the employer at least two mailed Dresser Industries, 569 F.2d 187, 193 First, Third, Fourth, Fifth, Sixth, letters, with the notice enclosed, (1977), cert. denied 439 U.S. 821 (1978). Seventh, Eighth, and Eleventh requesting that the employer post the Accordingly, the Board proposed that Circuits—have adopted the doctrine that notice within a specified period of time, tolling the 10(b) period for filing unfair the failure to post required employment preferably 30 days. They also assert that labor practice charges might be law notices may result in equitable the Board must specify the appropriate where the required notice tolling of the statute of limitations. circumstances in which additional has not been posted. 75 FR 80414. For Mercado v. Ritz-Carlton San Juan Hotel, proceedings will be appropriate. The the reasons discussed below, the Board 410 F.3d 41, 47–48, 95 FEP Cases 1464 Heritage Foundation urges that adheres to that view. (1st Cir. 2005) (Title VII); Bonham v. § 104.212(a) be modified to state that if Section 10(b) is a statute of Dresser Industries, above, 569 F.2d at limitations, and statutes of limitations 193 (ADEA); Hammer v. Cardio Medical 146 See, e.g., comments of St Mar Enterprises, Inc. are presumed to include equitable Products, Inc., 131 Fed. Appx. 829, 831– and National Federation of Independent Business. tolling whenever the statute is silent or 832 (3d Cir. 2005) (Title VII and ADEA);

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Vance v. Whirlpool Corp., 716 F.2d The Board received many comments doctrine form ‘‘two distinct lines of 1010 (4th Cir. 1983) (describing notice opposing this proposed rule provision. cases apply[ing] two distinct standards posting tolling as ‘‘the prevailing view Several comments assert that, when a to two distinct bases for equitable of the courts’’); Elliot v. Group Med. & charging party is unaware of the facts tolling’’). Surgical Serv., 714 F.2d 556, 563–64 supporting the finding of an unfair labor Some comments argue that because (5th Cir. 1983); EEOC v. Kentucky State practice, the Board tolls the 10(b) period Section 10(b) contains a limited Police Dept., 80 F.3d 1086, 1096 (6th only when the charged party has exception to the 6-month filing period Cir. 1996), cert. denied 519 U.S. 963 fraudulently concealed those facts from for employees in the military, it is (1996); Posey v. Skyline Corp., 702 F.2d the charging party.150 That is not so. improper for the Board to toll the 10(b) 102 (7th Cir. 1983); Schroeder v. Copley The Board has long held, with court period under other circumstances.152 Newspaper, 879 F.2d 266 (7th Cir. approval, that the 10(b) period begins to The Board rejects this argument as 1989); Kephart v. Inst. Gas Tech., 581 run only when the charging party has foreclosed by the Supreme Court’s F.2d 1287, 1289 (7th Cir. 1978); notice that the NLRA has been violated. holding in Zipes, above, and by the long Beshears v. Asbill, 930 F.2d 1348 (8th The party asserting the 10(b) defense line of Board and court decisions Cir. 1991); McClinton v. Alabama By- has the burden to show such notice; it finding tolling of the 10(b) period Prods. Corp., 743 F.2d 1483 (11th Cir. may do so by showing that the charging appropriate. In any event, the exception 1984); see also Henchy v. City of party had either actual or constructive in Section 10(b) for persons in the Absecon, 148 F. Supp. 2d 435, 439 (D. knowledge of the alleged unfair labor military provides that if the aggrieved N.J. 2001); Kamens v. Summit Stainless, practice prior to the 10(b) period. See, person ‘‘was prevented from filing such Inc., 586 F. Supp. 324, 328 (E.D. Pa. e.g., Broadway Volkswagen, 342 NLRB charge by reason of service in the armed 1984) (FLSA). 147 (But see Wilkerson v. 1244, 1246 (2004), enfd. sub nom. East forces, in which event the six-month Siegfried Ins. Agency, Inc., 683 F.2d Bay Automotive Council v. NLRB, 483 period shall be computed from the day 344, 347 (10th Cir. 1982) (‘‘the simple F.2d 628, 634 (9th Cir. 2007); University of his discharge.’’ This provision does failure to post [Title VII and ADEA] Moving & Storage Co., 350 NLRB 6, 7, not toll the six-month period during notices, without intent to actively 18 (2007); John Morrell & Co., above, armed service; rather, it states that the mislead the plaintiff respecting the 304 NLRB at 899; Pullman Building six-month period begins at discharge. cause of action, does not extend the Company, 251 NLRB 1048 (1980), enfd. See Holland v. Florida, 130 S.Ct. 2549, time within which a claimant must file 691 F.2d 507 (9th Cir. 1982) (table); 2561 (2010) (rejecting argument that his or her discrimination charge.’’)) Burgess Construction, 227 NLRB 765, explicit exceptions to time limits in After careful consideration, the Board 766 (1977), enfd. 596 F.2d 378 (9th Cir. nonjurisdictional statute of limitations is persuaded that the prevailing judicial 1978), cert. denied 440 U.S. 940 (1979). precluded equitable tolling).153 view should apply in the NLRA context Knowledge may be imputed if the A number of comments contend that as well.148 As an equitable concept, charging party would have discovered tolling the 10(b) period is contrary to the equitable tolling is a matter of fairness. the unlawful conduct by exercising salutary purpose of statutes of The Board has determined that many reasonable or due diligence. Broadway limitations in general, and 10(b) in employees are unaware of their NLRA Volkswagen, above, 342 NLRB at 1246. particular, which is ‘‘to require diligent rights and has devised a minimally Certainly, the Board has found it prosecution of known claims, thereby burdensome means of attempting to appropriate to toll the 10(b) period providing finality and predictability in rectify that situation—requiring when the charging party was excusably legal affairs and ensuring that claims employers to post workplace notices unaware of the pertinent facts because will be resolved while evidence is informing employees of those rights. To the charged party had fraudulently reasonably available and fresh.’’ 154 bar an employee who is excusably concealed them; see, e.g., Burgess Black’s Law Dictionary, 9th Edition, at unaware of the NLRA from seeking a Construction, above, 227 NLRB at 766; 1546. The Board recognizes that with remedy for a violation of NLRA rights but tolling is not limited to such the passage of time evidence can be lost because he or she failed to file an unfair circumstances. Pullman Building and witnesses die, move away, or their labor practice charge within the 10(b) Company, above, 251 NLRB at 1048. memories fade; it therefore will not period, when the employer did not post To the extent that the comments argue lightly find that the 10(b) period should the required notice, would unfairly that the Board should not engage in be tolled. However, like the courts deprive the employee of the protection equitable tolling of the 10(b) period whose decisions are cited above, the of the Act because of the employer’s when an employer has merely failed to Board also recognizes that equitable failure to comply with its legal post the notice but not engaged in tolling is a fundamental part of the responsibilities. To deny equitable fraudulent concealment,151 the Board statute of limitations, and that inequity tolling in such circumstances ‘‘would disagrees. Fraudulent concealment results from barring an individual from grant to the employee a right to be concerns a different kind of equitable seeking relief from a violation of his or informed without redress for violation.’’ doctrine, and is not directly relevant to her NLRA rights where the individual Bonham v. Dresser Industries, above, the notice posting equitable tolling excusably was unaware of these rights. 569 F.2d at 193.149 doctrine hereby adopted. See Mercado, After all, the purpose of a statute of above, 410 F.3d at 46–47 n.8 (employer limitations is to ‘‘require diligent 147 See comments of Harkin and Miller, AFL–CIO, misconduct and equitable tolling and Service Employees International Union (SEIU). 152 See, e.g., comments of California Chamber and 148 The Board has broad discretion to interpret in the absence of equitable tolling of the 10(b) NCAE. 10(b), including equitable tolling, in accordance period, such ‘‘redress’’ would not aid an employee 153 American Bus Association v. Slater, 231 F. 3d with its experience administering the Act. Lodge 64, who was excusably unaware of his or her NLRA 1 (D.C. Cir. 2000), cited by California Chamber and IAM v. NLRB, 949 F.2d 441, 444 (D.C. Cir. 1991) rights, failed to file a timely charge, and thus was NCAE, did not concern equitable tolling and is (deferring to the Board’s interpretation of 10(b) denied any remedy for violation of those rights. Cf. therefore inapposite. The court there also found that equitable exceptions). Kanakis Co., 293 NLRB 435, 436 fn. 10 (1989) Congress had expressly limited the sanctions 149 Under the final rule, the Board could also find (possibility of criminal sanctions against employer available under the Americans with Disabilities Act the failure to post the notice to be an unfair labor would be little comfort to charging party if deprived to those enumerated in that statute; such is not the practice, and could, if appropriate, consider a of recourse to Board’s remedial processes). case under the NLRA. willful failure to post to be evidence of unlawful 150 See, e.g., comments of FMI, COLLE. 154 See, e.g., comments of FMI, COLLE, and U.S. motive in an unfair labor practice case. However, 151 See, e.g., comments of FMI, COLLE. Chamber of Commerce.

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prosecution of known claims,’’ not employee had actual or constructive also suggest that some employees, claims that are unknown to the injured knowledge of the conduct alleged to be though represented, may have little party. As to concerns that the statute of unlawful, as well as actual or contact with their unions and rely on limitations could be tolled for years, constructive knowledge that the workplace notices instead of unions for ‘‘perhaps indefinitely,’’ 155 the Board conduct violated the NLRA, and yet relevant information. responds that such a potential also failed to timely file an unfair labor The Board finds some merit in both exists under other statutes, as well as practice charge, the Board will not toll sets of contentions. On the one hand, it under the NLRA when a charging party the 10(b) period merely because of the is reasonable to assume that employees is unaware of the facts giving rise to an employer’s failure to post the notice. Cf. who are represented by unions are more alleged unfair labor practice. However, John Morrell & Co., above, 304 NLRB at likely to be aware of their NLRA rights at this point, concerns about the 899. than unrepresented employees. And, unfairness of lengthy tolling periods are The Board asked for comments although being represented by a union entirely speculative. Tolling is an concerning whether unions filing unfair is not the same as being represented by equitable matter, and one factor to be labor practice charges should be deemed legal counsel, it is reasonable to assume considered in deciding whether to have constructive knowledge of the that union officials are sufficiently equitable tolling is appropriate is unlawful character of the conduct at conversant with the NLRA to be able to whether it would prejudice the issue. All of the comments that give employees effective advice as to respondent. Mercado, above, 410 F.3d at addressed this issue answered in the their NLRA rights. On the other hand, 48. Accordingly, if a lengthy tolling of affirmative.159 Unlike most employees, some employees, though represented by the 10(b) period would prejudice an unions routinely deal with issues unions, may in fact have little contact employer in a given case, the Board arising under the NLRA and are with their bargaining representatives for could properly consider that factor in therefore more familiar with the Act’s one reason or other and may, in fact, be determining whether tolling was provisions. Accordingly, the tolling filing charges against their appropriate in that case.156 provisions in the final rule apply only representative. Thus, the Board does not Several comments argue against to charges filed by employees, not those find it appropriate under all tolling the 10(b) period because filed by unions. (The Board still could circumstances to impute knowledge of ‘‘ignorance of the law is no excuse.’’ 157 toll the 10(b) period if a charging party NLRA rights to charge-filing employees This argument is amply refuted by the union did not discover the facts who are union members or are court decisions cited above, in which underlying the charge within six represented by unions. Rather, the limitations periods under other months, if the employees reporting Board will consider evidence workplace statutes were tolled because those events failed to alert the union concerning the union’s representational employers failed to post required within that time because they were presence and activity in determining notices. Most notably, the Fifth Circuit excusably unaware of their NLRA whether it is appropriate to toll the has emphasized that the failure to post rights.) 10(b) period. a required notice ‘‘vitiates the normal Several comments contend that assumption that an employee is aware failure to post the required notice C. Failure To Post as Evidence of of his rights.’’ Elliot v. Group Med. & should not toll the 10(b) period if an Unlawful Motive Surgical Serv., 714 F.2d 556, 563–64 employee who files an unfair labor The Board suggested that it could (5th Cir. 1983). In any event, the maxim practice charge is either a union consider an employer’s knowing failure relied on is generally understood to member or is represented by a union. to post the notice as evidence of have arisen in order to prevent Taft Stettinius & Hollister LLP asserts unlawful motive in an unfair labor individuals (usually in criminal cases) that the burden should be placed practice proceeding in which motive is from deliberately failing to ascertain equally on unions to ensure that their an issue. 75 FR 80414–80415. A number whether actions they contemplate taking organizers and members are aware of of comments assert that the Board would be lawful, and then pleading employee rights under the NLRA. cannot properly take that step.160 To the ignorance when accused of California Chamber and NCAE observe contrary, the Board has often considered lawbreaking.158 In the Board’s view, this that knowledge of a filing time limit is other unlawful conduct as evidence of reasoning loses much of its force when generally imputed to an individual who antiunion animus in cases in which applied to individuals, such as charging is represented by an attorney, see, e.g., unlawful motive was an element of an parties in unfair labor practice cases, Mercado v. Ritz-Carlton San Juan Hotel, unfair labor practice.161 See, e.g., Leiser who are not accused of any wrongdoing above, 410 F.3d at 47–48; they urge that Construction, LLC, 349 NLRB 413, 417– but who claim to have been injured by an employee who is represented by a 419 (2007) (threats, coercive statements, the unlawful actions of other parties. union should be treated similarly. interrogations evidence of unlawfully The Board emphasizes, however, that Conversely, three Georgetown motivated failure to hire), enfd. 281 Fed. failure to post the required notice will University law students oppose the idea Appx. 781 (10th Cir. 2008) not automatically warrant a tolling that union-represented employees (unpublished); Shearer’s Foods, 340 remedy. If an employer proves that an should be deemed to have constructive NLRB 1093, 1094 (2003) (plant closing knowledge of NLRA rights. They reason threat evidence of unlawfully motivated 155 See comments of Fisher & Phillips LLC and that some workplaces may have discharge); Ferguson-Williams, Inc., 322 National Grocers Association. NLRB 695, 703, 707 (1996) (threats, 156 As to ACC’s concern that the rule could unrepresented as well as represented potentially subject employers to unfair labor employees, and that imputing interrogations, creation of impression of practice charges based on conduct as far back as knowledge to the latter group would surveillance, evidence of unlawfully 1935, the Board stresses that tolling will be provide an incentive not to post the motivated discharge); Champion Rivet available only in the case of unlawful conduct that Co., 314 NLRB 1097, 1098 (1994) occurs after the rule takes effect. notice, thus depriving the former group 157 See, e.g., comments of Coalition for a of needed information. The students (circulating unlawful antiunion petition, Democratic Workplace and COLLE. 158 Moreover, even in criminal law, the principle 159 See, e.g., comments of U.S. Chamber of 160 See, e.g., comments of COLLE and California is not absolute. See, e.g., Lambert v. California, 355 Commerce, American Trucking Associations, Taft Chamber. U.S. 225 (1957). Stettinius & Hollister LLP. 161 See comment of AFL–CIO.

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refusal to recognize and bargain with concerned with fairness to the to post the notice is intentional and union, evidence of unlawfully employee, and these fairness concerns meant to prevent employees of learning motivated failure to hire). Thus, it is are unaffected by the employer’s good or their rights. proper for the Board to consider a bad faith; as previously noted, notice D. Other Comments knowing and willful failure to post the posting tolling is fundamentally notice as evidence of unlawful motive. different from tolling based upon The Board received many comments However, the Board has noticed that employer misconduct. However, an asserting that if the proposed it employed somewhat inconsistent employer that fails to post the notice enforcement scheme for failure to post language in the NPRM regarding the only because it honestly but erroneously the required notice is adopted, union consideration of failure to post the believes that it is not subject to the adherents will tear down the notices in notice as evidence of antiunion animus. NLRB’s jurisdiction does not thereby order to harass employers and, Thus, the caption of paragraph indicate that it is hostile to employees’ particularly, to vitiate 10(b).167 These 104.214(b) reads: ‘‘Knowing NLRA rights, but only that it believes comments express the concern that noncompliance as evidence of unlawful that those rights do not apply in the tolling the 10(b) period will lead to a motive.’’ However, the paragraph itself employer’s workplace. In such a case, flood of unfair labor practice charges, states that ‘‘If an employer has actual or the employer’s good faith normally and that, to avoid that eventuality, constructive knowledge of the should preclude finding the failure to employers will have to incur significant requirement to post the notice and fails post to be willful or evidence of costs of policing the postings and/or or refuses to do so, the Board may antiunion animus. installing expensive tamper-proof consider such a willful refusal as ACC contends that even though the bulletin boards.168 In the absence of evidence of unlawful motive in a case rule states that only a ‘‘willful’’ failure experience with such postings, the in which motive is an issue.’’ (Emphasis to post the notice may be considered Board deems these concerns speculative added in both cases.) 75 FR at 80420. In evidence of unlawful motive, in practice at this time. If particular employers the preamble to the NPRM, the Board the Board will always infer at least experience such difficulties, the Board referred only to knowing noncompliance constructive notice from the publication will deal with them on a case-by-case as evidence of unlawful motive. 75 FR of the rule in the Federal Register and basis. However, as explained above, at 80414–80415. On reflection, the the maxim that ‘‘ignorance of the law is tolling is an equitable matter, and if an Board wishes to clarify this provision to no excuse.’’ 164 The Board rejects this employer has posted the notice and state that, to be considered as evidence contention. The quoted maxim means taken reasonable steps to insure that it of unlawful motive, an employer’s only that an employer’s actual lack of remains posted, it is unlikely that the failure to post the notice must be both knowledge of the rule would not excuse Board would find tolling appropriate. knowing and willful—i.e., the employer its failure to post the notice. It would, California Chamber and NCAE ask the must have actual (as opposed to however, undercut any suggestion that Board to specify the ‘‘additional constructive) knowledge of the rule and the failure to post was willful and remedies’’ that may be imposed in the event of a notice posting violation. yet refuse, on no cognizable basis, to therefore indicative of unlawful motive. 165 104.213(a). The Board has broad post the notice. The Board is revising Contrary to numerous comments, discretion in crafting remedies for the language of the rule accordingly. finding a willful failure to post the The comment that prompted these notice as evidence of animus is not the violations of the NLRA. NLRB v. Seven- revisions urges that there should be no same as adopting a ‘‘presumption of Up Bottling Co. of Miami, 344 U.S. 344, adverse consequences for the employer animus’’ or ‘‘presumption of unlawful 346 (1953). The remedies imposed in a that does not post the notice because it motive.’’ There is no such presumption. given case depend on the nature of the has a good-faith (but, implicitly, The Board’s general counsel would have violations and the particular facts in the case. The Board declines to speculate as erroneous) belief that it is not covered the burden of proving that a failure to to every possible remedy that might be by the NLRA.162 The Board rejects this post was willful. In any event, a willful imposed in every imaginable set of contention as it pertains to finding the failure to post would not be conclusive circumstances. failure to post to be an unfair labor proof of unlawful motive, but merely evidence that could be considered, Several comments protest that practice or grounds for tolling the 10(b) employers could be fined for failing to period. Failure to post the notice along with other evidence, in determining whether the general post the notice; several others contend interferes with employees’ NLRA rights that the Board should levy fines instead regardless of the reason for the failure; counsel had demonstrated unlawful 166 of imposing the proposed remedies. The good faith, though commendable, is motive. Likewise, contrary to the contentions of ALFA and AHCA, the irrelevant.163 Additionally, tolling is Board will not assume that any failure 167 See, e.g., comments of Lemon Grove Care & Rehabilitation, numerous ‘‘postcard’’ comments. 162 One example could be an employer that 168 One comment asserts that because of the believes that it is subject to the Railway Labor Act Mike O’Connor Chevrolet, 209 NLRB 701, 703 potential for tolling the 10(b) period, ‘‘businesses and not to the NLRA. (1974), enf. denied on other grounds 512 F.2d 684 * * * will have to keep records forever[.]’’ The 163 This is so in other areas of NLRA law. For (8th Cir. 1975). Board finds no merit in this contention. Employers example, an employer who coercively interrogates 164 See also comment of American Health Care that are aware of the rule can avoid keeping records or disciplines an individual concerning his or her Association (AHCA). ‘‘forever’’ simply by posting the notice. Employers union activities violates the NLRA if the individual 165 See, e.g., comments of FMI and COLLE. that are not aware of the requirement to post the is a statutory employee, even though the employer 166 The Georgetown law students ask whether, if notice would also be unaware of the possibility of may have honestly believed that the individual was failure to post the notice may be found to be an tolling the 10(b) period in the event of a failure to a statutory supervisor and not protected by the unfair labor practice and also may be considered post, and thus would discern no reason to—and NLRA. Also, absent compelling economic evidence of antiunion animus, such a failure could probably would not—keep records ‘‘forever.’’ circumstances, an employer that is testing the ‘‘satisfy an element of its own violation.’’ The Prejudice to the employer because of long-lost Board’s certification of a newly-selected union in answer is no, because the failure to post, whether records would be considered by the Board in the court of appeals makes unilateral changes in knowing or inadvertent, would be an unfair labor determining whether tolling is appropriate in the unit employees’ terms and conditions of practice regardless of motive; knowing and willful particular case. employment at its peril; if the court affirms the failure to post would be relevant only in cases such Another comment complains that ‘‘the certification, the unilateral changes violate NLRA as those alleging unlawful discipline, discharge, or requirement of proof on the employer to ‘certify’ Section 8(a)(5) even if the employer believed in refusal to hire, in which motive is an element of the that this posting is up each day is burdensome[.]’’ good faith that the certification was inappropriate. violation. There is no such requirement.

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Board rejects both contentions because, measures supported by extensive Board addition to the proposed enforcement as explained in the NPRM, the Board and court precedent. scheme, the rule state that an does not have the authority to impose In addition, in a number of places the employer’s knowing failure to post the fines. 75 FR 80414, citing Republic Steel NPRM used the term ‘‘sanctions’’ in a notice of employee rights during the Corp. v. NLRB, 311 U.S. 7, 10–12 (1940). very loose sense to refer to aspects of the critical period before a representation Another comment argues that the Board proposed enforcement scheme, election shall be grounds for setting the should not provide remedies for failing inadvertently suggesting that this election aside on the filing of proper to post the notice because such scheme was punitive. The term objections. The Board finds that this is remedies are not provided under other ‘‘sanctions’’ was an inapt choice of unnecessary, because the Board’s notice statutes. In fact, both remedies and descriptor for the enforcement scheme: of election, which must be posted by an sanctions are imposed under some the classic 8(a)(1) remedial order has employer three working days before an statutes; see, e.g., 29 CFR 1601.30 (fine long been upheld as nonpunitive; election takes place, contains a of $110 per offense for failing to post equitable tolling is concerned with summary of employee NLRA rights and notice under Title VII); 29 CFR fairness to employees, not punishment a list of several kinds of unfair labor 825.300(a)(1) (same sanction for failing of misconduct, and is fully consistent practices, and failure to post that notice to post notice under FMLA); cases cited with current Board doctrine; and the already constitutes grounds for setting above for tolling of limitation periods animus provision is little more than the an election aside.171 In any event, for failing to post notices under several common-sense extension of well- during a union organizing campaign, the statutes. established evidentiary principles that union can instruct members of its in- One comment contends that the apply to many other NLRA violations, plant organizing committee to verify proposed remedies were proposed and is also not designed to punish whether the notice required under this solely as means of deterring failures to employers. That they may also furnish rule has been posted; if it has not, the post the notices, and are therefore incentives for employers to comply with union can so inform the employer and, inappropriate; several other comments the notice-posting rule does not detract if need be, the Board’s regional office. from their legitimacy; if it were assert that the proposed remedies are Subpart C—Ancillary Matters punitive.169 Although the Board otherwise, the Board could never disagrees, there is language in the impose any remedy for violations of the Several technical issues unrelated to NPRM that may have inadvertently NLRA if the remedy had a deterrent those discussed in the two previous suggested that the enforcement effect. In any event, the Board hereby subparts are set out in this subpart. mechanisms were proposed solely for disavows any suggestion from deterrent purposes. The Board wishes to statements in the NPRM that the IV. Dissenting View of Member Brian E. correct any such misimpression. As remedial measures were proposed solely Hayes stated above, in explaining why it was as penalties. ‘‘Agencies may play the sorcerer’s proposing those mechanisms, the Board Contrary to the tenor of numerous 170 apprentice but not the sorcerer stated in its NPRM that it was ‘‘mindful comments opposing this rule, the himself.’’ 172 of the need to identify effective Board is not issuing the rule in order to Today, my colleagues conjure up a incentives for compliance.’’ 75 FR entrap unwary employers and make new unfair labor practice based on a 80413. Later, referring to tolling the operations more difficult for them new statutory obligation. They impose 10(b) period and considering a willful because of inadvertent or technical on as many as six million private failure to post the notice as evidence of violations. It is doing so in order that employers the obligation to post a notice unlawful motive, the Board said that it employees may come to understand of employee rights and selected ‘‘proposes the following options their NLRA rights through exposure to illustrative unfair labor practices. The intended to induce compliance with the notices posted in their workplaces obligation to post is deemed enforceable notice-posting requirement.’’ Id. at explaining those rights. Accordingly, through Section 8(a)(1)’s proscription of 80414. However, the Board made those the important thing is that the notices be interference with employees’ Section 7 statements while explaining why it had posted. As explained above, an rights, and the failure to post is further determined not to rely entirely on employer that fails to post the notice penalized by equitable tolling of Section employers’ voluntary compliance with because it is unaware of the rule, but 10(b)’s limitations period and the the rule. (The Board had had little promptly posts the notice when the rule possible inference of discriminatory success in persuading employers to is brought to its attention, will nearly motivation for adverse employment voluntarily post notices of employee always avoid any further proceedings. actions taken in the absence of posting. rights during the critical period leading Similarly, an employer that posts the While the need for a more informed up to a representation election.) Id. By notice but fails initially to comply with constituency might be a desirable goal, noting that the proposed enforcement one of the technical posting it is attainable only with Congressional scheme would have some deterrent requirements will almost always avoid imprimatur. The Board’s rulemaking effect in that context, the Board did not further problems by correcting the error authority, broad as it is, does not mean to imply that it was proposing when it is called to the employer’s encompass the authority to promulgate those measures solely for deterrence attention. And if an employer is unsure a rule of this kind. Even if it did, the purposes. For the reasons discussed at of what the rule requires in a particular action taken here is arbitrary and length above, the Board has found that setting, it can seek and receive guidance capricious, and therefore invalid, finding a failure to post the notices to from the Board. because it is not based on substantial violate Section 8(a)(1) and, in The Service Employees International evidence and it lacks a reasoned appropriate circumstances, to warrant Union and the United Food and analysis. tolling the 10(b) period and/or inferring Commercial Workers propose that, in unlawful motive in an unfair labor 171 practice case are legitimate remedial 170 For example, ‘‘This seems to be yet another See Section 103.20 of the Board’s Rules and trap for the employers. Another avenue to subject Regulations. them to law suits and interrogations, and 172 Alexander v. Sandoval, 532 U.S. 275, 291 169 See, e.g., comments of FMI, ALFA, AHCA. uneconomic activities and ungodly expenditures.’’ (2001).

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No Statutory Authority for the Proposed laws. See Title VII of the Civil Rights absence of such language in its enabling Rule Act of 1964 (Title VII), 42 U.S.C. statute. No agency has made the failure The majority concedes that the 2000e–10, the Age Discrimination in to comply with a notice-posting ‘‘National Labor Relations Act does not Employment Act (ADEA), 29 U.S.C. 627, requirement unlawful absent express directly address an employer’s The Occupational Safety and Health statutory authorization, until today. obligation to post a notice of its Act, 29 U.S.C. 657(c), the Americans The explicit inclusion of notice- employees’ rights arising under the Act with Disabilities Act (ADA), 42 U.S.C. posting provisions and permissible or the consequences an employer may 12115, the Family and Medical Leave sanctions by Congress in other labor face for failing to do so.’’ In fact, the Act (FMLA), 29 U.S.C. 2619(a), and the legislation undercuts the majority’s NLRA 173 makes no mention of any such Uniformed Service Employment and claim that this notice-posting rule is not putative obligation. The majority further Reemployment Rights Act (USERRA), a ‘‘major policy decision properly made acknowledges that the NLRA ‘‘is almost 38 U.S.C. 4334(a). by Congress alone.’’ Strangely, the unique among major Federal labor laws The majority points out that the majority does not merely contend that in not including an express statutory Department of Labor (DOL) promulgated this pattern in comparable labor provision requiring employers routinely a notice-posting rule under the Fair legislation fails to prove that Congress to post notices at their workplaces Labor Standards Act (FLSA), although did not intend that the Board should informing employees of their statutory that statute does not contain a specific have the rulemaking authority under rights.’’ Despite the obvious import of statutory provision on workplace Section 6 to mandate the notice posting these admissions, the majority postings. However, the FLSA, unlike the at issue here. They conversely contend concludes that the Board’s plenary NLRA, imposes a data-collection and that it proves Congress must have recordkeeping requirement on intended to confer such authority on the authority under Section 6 of the Act to 174 make rules ‘‘necessary to carry out the employers. 29 U.S.C. 211(c). DOL’s Board! Perhaps cognizant of the weakness of provisions of the Act’’ permits Wage and Hour Administrator this position, the majority attempts to promulgation of the rule they advocate. promulgated the notice-posting downplay the import of Congressional I disagree. regulation in 1949 in reliance on this Congress did not give specific requirement. It appears that the silence on the Board’s authority to statutory authority to the Board to propriety of the FLSA rule has never mandate notice posting and to enforce require the posting of a general rights been challenged, perhaps because, that mandate through unfair labor notice when it passed the Wagner Act unlike the rule promulgated herein, practice sanctions. They cite Cheney in 1935. Just one year earlier, however, there are no citations or penalties R.R. Co. v. ICC, 902 F. 2d 66, 68–69 Congress amended the Railway Labor assessed for the failure to post. This is (D.C. Cir. 1990), for the proposition that the maxim ‘‘expressio unius est exclusio Act (‘‘RLA’’) to include an express a significant point of distinction that alterius,’’ which holds that the special notice-posting requirement. 45 U.S.C. warrants further discussion. It must be constantly borne in mind mention of one thing indicates an intent 152 Eighth; Pub. L. No. 73–442, 48 Stat. that the rule promulgated today makes for another thing not be included 1185, 1188 (1934). As the Supreme the failure to post the required notice a elsewhere, may not always be a useful Court noted, the RLA served as the violation of the Act. The majority tool for interpreting the intent of model for the National Labor Relations misleadingly seeks to decouple Congress. Obviously, the usefulness of Act. NLRB v. Pennsylvania Greyhound obligation from violation in its analysis this tool depends on the context of a Lines, 303 U.S. 261 (1938). See also by discussing the latter in the context of particular statute. Independent Ins. NLRB v. Jones & Laughlin Steel Corp., enforcement of the assertedly lawful Agents of Am., Inc. v. Hawke, 211 F.3d 301 U.S. 1, 44 (1937); H. J. Heinz Co. v. notice-posting rule. That is nonsense. 638 (D.C. Cir. 2000) (applying the NLRB, 311 U.S. 514, 524–525(1941). Making noncompliance an unfair labor maxim). In my view, the absence of an That Congress did not include an practice is integral to the rule and, express notice provision in the NLRA, express notice-posting requirement consequently, integral to an analysis of and the failure to amend the Act to when passing the Wagner Act the whether the notice-posting requirement include one when Congress expressly following year strongly implies, if not is a permissible exercise of the Board’s included notice posting provisions in compels, the conclusion that Congress rulemaking authority. Of the other labor statutes, shows that it did did not intend for the Board to have aforementioned agencies that have not intend to authorize the Board to regulatory authority to require such a notice-posting requirements, none of promulgate this rule.175 notice. Nothing in the legislative history them makes the failure to post unlawful, Arguing to the contrary, the majority hints of any concern by Congress about absent additional specific statutory asserts that the notice-posting rule is the need for employers to notify authorization. Only the RLA, Title VII, employees generally of their rights FMLA, and the Occupational Safety Act 174 Of course, this reasoning would seem to under the new enacting statute. Since (OSHA) have such authorizing language. dictate that the failure of the Board to inform its own employees of their general rights under the 1935, despite extensive revisions in the ADA, the ADEA, the FLSA, and the Taft-Hartley Act amendments of 1947 Federal Labor Relations Act is an unfair labor USERRA do not. Consequently, an practice, even though that statute imposes no such and the Landrum-Griffin Act employer’s failure to post a notice under express requirement. To date, I am not aware that amendments of 1959, Congress has those statutes is not subject to sanction this agency, or any other, views itself as subject to never added such authority. such an enforceable obligation. as unlawful. 175 On the other hand, when Congress The majority contends that the fact that the Thus, both before and after the rule comes 76 years after the NLRA was enacted is has subsequently desired to include a Wagner Act, Congress has consistently not a ‘‘condition of validity.’’ Mayo Foundation for general rights notice-posting manifested by express statutory Medical Education and Research v. United States, requirement, it has done so expressly in 131 S.Ct. 704, 713–14 (2011) (quoting Smiley v. language its intent to impose a general Citibank (S.D.), N.A., 517 U.S. 735, 740 (1996) other federal labor and employment notice-posting duty on employers with (‘‘neither antiquity nor contemporaneity with the respect to the rights of employees under statute is a condition of validity.’’). I have no 173 Throughout this dissent, I will refer generally various federal labor laws. Only one problem with that proposition, but if the Board to the statute we administer as the NLRA, unless lacks statutory authority to promulgate a rule, it is the discussion focuses on a specific historical administrative agency promulgated a of no matter that it attempts to do so in year 1 or version, such as the Wagner Act. notice-posting requirement in the year 76 of its existence.

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entitled to deference under the analysis to relate reasonably to some other no relation to the few examples the set forth in Chevron U.S.A. Inc. v. provision as part of the overall statutory majority can muster in Board precedent. Natural Resources Defense Council, scheme contemplated by Congress.176 The only instance with even a passing Inc., 467 U.S. 837 (1984). Under Nothing in the text or the regulatory resemblance to the rights notice-posting Chevron, where Congress has not structure of the NLRA suggests that the requirement here is the requirement that ‘‘directly addressed the precise question Board has the authority to promulgate a union give notice of Beck 178 and at issue,’’ id. at 842–843, that the notice-posting rule at issue in order General Motors 179 rights. However, the rulemaking authority may be used in to address a gap in the statutory scheme failure to give such a notice is not per order ‘‘to fill any gap left, implicitly or for resolving questions concerning se unlawful. It becomes an unfair labor explicitly, by Congress.’’ Id. at 843. representation through Section 9, or in practice only when a union, without Even assuming that the absence of an preventing, through Sections 8 and 10, giving notice, takes the affirmative explicit posting requirement in the specifically enumerated unfair labor action of seeking to obligate an NLRA is not interpreted as clear practices that adversely affect employee to pay fees and dues under a expression of Congressional intent, the employees’ Section 7 rights. On the union-security clause.180 Beyond that, a majority fails to persuade that Congress contrary, it is well-established that the union has no general obligation to give delegated authority in Section 6 of the Board lacks independent authority to employees notice of their Beck and NLRA for the Board to fill a putative initiate or to solicit the initiation of General Motors rights; much less does it statutory gap by promulgating a rule representation and unfair labor practice violate the NLRA by failing to do so. By that an employer commits an unfair proceedings, and Section 10(a) limits contrast, the rule promulgated today labor practice by failing to affirmative the Board’s powers to preventing only imposes a continuing obligation on notify its employees of their rights the unfair labor practices listed in employers to post notice of employees’ under the NLRA. As the Supreme Court Section 8 of the Act. Yet the majority general rights and, even absent any has explained, ‘‘the ultimate question is asserts that it may exceed these affirmative act involving those rights, whether Congress would have intended, limitations by requiring employers to makes the failure to maintain such and expected, courts to treat [the post a notice of employee rights and notice unlawful.181 regulation] as within, or outside, its illustrative unfair labor practices at all Unlike my colleagues, I find that the delegation to the agency of ‘gap-filling’ times, regardless of whether a petition Supreme Court’s opinion in Local 357, authority.’’ Long Island Care at Home, had been filed or an employer has been Teamsters v. NLRB, 365 U.S. 667 (1961), Ltd. v. Coke, 551 U.S. 158, 173 (2007). found to have committed an unfair labor speaks directly to this point. In that There is no doubt that there are many practice. case, the Board found a hiring hall gaps and ambiguities in the NLRA that The majority’s reliance on a agreement unlawfully discriminatory Congress intended for the Board to combination of Section 7, 8, and 10 per se because, even though it included address, using its labor expertise, either warrants special mention. They reason an express anti-discrimination through adjudication or rulemaking. that an employer interferes with Section However, the existence of ambiguity in 7 rights in general, and thereby violates practice ‘‘listed in Section 8.’’ Thus, ‘‘[n]either the a statute is not enough per se to warrant Section 8(a)(1), by failing to give National Labor Relations Board nor the courts are deference to the agency’s interpretation continuous notice to employees of those given any blanket authority to prohibit whatever of its authority in every respect. The labor practices that in their judgment are deemed rights. It may be a truism that an to be unfair.’’ S. Rep. No. 573, 74th Cong., 1st Sess. ambiguity must be such as to make it employee must be aware of his rights in 17 (1935) at 8–9 reprinted in Legislative History of appear that Congress either explicitly or order to exercise them, but it does not the National Labor Relations Act of 1935, Vol. II at implicitly delegated authority to cure follow that it is the employer under our 2307–2308 (1985). that ambiguity. Am. Bar Ass’n v. FTC, statutory scheme who must provide 178 Communications Workers v. Beck, 487 U.S. 430 F.3d 457, 469 (D.C. Cir. 2005); 735 (1988). enlightenment or else incur liability for 179 Motion Picture Ass’n of America, Inc. v. NLRB v. General Motors, 373 U.S. 734 (1963). violating those rights. The new unfair 180 California Saw & Knife Works, 320 NLRB 224, FCC, 309 F. 3d 796, 801 (D.C. Cir. 2002) labor practice created by the rule bears 233 (1995). (‘‘MPAA ’’) (‘‘agency’s interpretation of no reasonable relation to any unfair 181 None of the FMLA cases cited by the majority [a] statute is not entitled to deference labor practice in the NLRA’s pre- support finding that a failure to post a general absent a delegation of authority from notice of employee rights under the NLRA is existing enforcement scheme developed unlawful. In Bachelder, the Ninth Circuit actually Congress to regulate in the areas at 177 over seven decades. It certainly bears found ‘‘unavailing’’ the employer’s argument that it issue.’’). had satisfied all its specific FMLA notice Thus, even when an administrative 176 See, e.g., Mourning v. Family Publications obligations because it had complied with the agency seeks to address what it believes Service, Inc., 411 U.S. 356, (1973) Unlike here, the FMLA’s general posting rule. Id. at 1127, fn. 5. is a serious interpretive problem, the Federal Reserve Board easily met this standard in Rather, the court found that because the employer Supreme Court has said that the agency Mourning when issuing a disclosure regulation failed to ‘‘notify’’ an employee which of the four under the Truth in Lending Act, even though that FMLA’s ‘‘leave year’’ calculation methods it had ‘‘may not exercise its authority ‘in a Act did not explicitly require lenders to make such chosen, the employer ‘‘interfered’’ with that manner that is inconsistent with the disclosures. In sustaining the regulation, the Court employee’s rights and, therefore, improperly used administrative structure that Congress found the regulation to be within the Federal the employee’s FMLA covered absences as a enacted into law.’ ’’ FDA v. Brown & Reserve’s rulemaking authority and, in light of the ‘‘negative factor’’ when taking the affirmative legislative history, the disclosure requirement was adverse action of discharging her. Williamson Tobacco Corp., 529 U.S. not contrary to the statute. ‘‘The crucial distinction, Similarly, in neither Greenwell v. Charles 120, 125(2000) (quoting ETSI Pipeline * * * [was that] the disclosure requirement was in Machine Works, Inc., 2011 WL 1458565 (W.D.Okla., Project v. Missouri, 484 U.S. 495, fact enforced through the statute’s pre-existing 2011); Smith v. Westchester County, 769 F. Supp 2d 517(1988)). Further, the statute at issue remedial scheme and in a manner consistent with 448 (S.D.N.Y. 2011), was the FMLA general posting it.’’ Ragsdale v. Wolverine World Wide, Inc., 535 requirement at issue. Smith did not involve a notice must be considered as a ‘‘symmetrical U.S. 81, 94 (2002). issue and Greenwell involved the employer’s failure and coherent regulatory scheme.’’ 177 The Senate report on the Wagner bill stressed to comply with a different notification obligation Gustafson v. Alloyd Co., 513 U.S. 561, that unfair labor practices were ‘‘strictly limited to under the FMLA. 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 those enumerated in section 8. This is made clear In any event, as previously stated, FMLA by paragraph 8 of section 2, which provides that expressly provides that employers give notice to (1995). In our case, the exercise of ‘The term ‘unfair labor practice’ means unfair labor employees of rights thereunder and expressly rulemaking authority under Section 6 is practice listed in Section 8,’’ and by Section 10(a) provides for sanctions if notice is not given. The not self-effectuating; it must be shown empowering the Board to prevent any unfair labor NLRA does neither.

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provision, it did not include two unfair labor practices is necessary to presence.’’ Id. No such conclusion was additional provisions that the Board carry out any substantive section of the possible in that case. No such declared were necessary to prevent NLRA. Nevertheless, the majority conclusion is possible here. Quite ‘‘unlawful encouragement of union construes AHA as an endorsement of simply, the Board lacks statutory membership.’’ The Court disagreed, deference to the exercise of Section 6 authority to promulgate a rule that stating rulemaking authority whenever imposes a new obligation on employers Perhaps the conditions which the Board Congress did not expressly limit this and creates a new unfair labor practice attaches to hiring-hall arrangements will in authority. This is patently incorrect. ‘‘To to enforce it. suggest, as the [majority] effectively time appeal to the Congress. Yet, where The Rule Is Arbitrary and Capricious Congress has adopted a selective system for does, that Chevron deference is required dealing with evils, the Board is confined to any time a statute does not expressly Even if the Board arguably has that system. National Labor Relations Board negate the existence of a claimed rulemaking authority in this area, v. Drivers, etc. Local Union, 362 U.S. 274, administrative power * * *, is both deference is unwarranted under 284–290, 80 S.Ct. 706, 712–715, 4 L.Ed.2d flatly unfaithful to the principles of Chevron and the Administrative 710. Where, as here, Congress has aimed its administrative law * * * and refuted by Procedure Act if the rule promulgated is sanctions only at specific discriminatory precedent.’’ Railway Labor Executives’ ‘‘arbitrary or capricious in substance, or practices, the Board cannot go farther and Ass’n v. National Mediation Bd., 29 manifestly contrary to the statute.’’ establish a broader, more pervasive United States v. Mead Corp., 533 U.S. regulatory scheme.182 F.3d 655, 671 (D.C.Cir.1994) (citation omitted). Were courts ‘‘to presume a 218, 227 (2001). Also see AHA, 499 U.S. Congress in Section 8(a)(1) aimed its delegation of power absent an express at 618–20 (applying arbitrary and sanctions only at employer actions that withholding of such power, agencies capricious standard in its consideration interfere with the exercise of Section 7 would enjoy virtually limitless of the Board’s rule on acute care rights. By this rulemaking, my hegemony, a result plainly out of hospital bargaining units). ‘‘Normally, colleagues go farther and establish a keeping with Chevron and quite likely an agency rule would be arbitrary and broader, more pervasive regulatory with the Constitution as well.’’ Id. capricious if the agency has relied on scheme that targets employer inaction, In sum, the majority’s notice rule does factors which Congress has not intended or silence, as unlawful interference. As not address a gap that Congress it to consider, entirely failed to consider Local 357 instructs, they lack the delegated authority to the Board to fill, an important aspect of the problem, authority to do this.183 whether by rulemaking or adjudication. offered an explanation for its decision American Hospital Association v. The Supreme Court has made clear that that runs counter to the evidence before NLRB, 499 U.S. 606 (1991) (AHA), upon ‘‘[w]here Congress has in the statute the agency, or is so implausible that it which the majority heavily relies, given the Board a question to answer, could not be ascribed to a difference in illustrates a valid exercise of authority the courts will give respect to that view or the product of agency under Section 6. In AHA, the Supreme answer; but they must be sure the expertise.’’ Motor Vehicle Mfg. Ass’n of Court unanimously upheld the Board’s question has been asked.’’ NLRB v. the U.S., Inc. v. State Farm Mut. Auto. health care unit rule, finding that Insurance Agents’ Int’l Union, 361 U.S. Ins. Co., 463 U.S. 29, 43 (1983). ‘‘[T]he Section 6’s general grant of rulemaking 419, 432–433 (1960). The Supreme agency must examine the relevant data authority ‘‘was unquestionably Court also has made clear: ‘‘[Congress] and articulate a satisfactory explanation sufficient to authorize the rule at issue does not * * * hide elephants in for its action including a ‘rational in this case unless limited by some mouseholes.’’ Whitman v. American connection between the facts found and other provision in the Act.’’ Id. at 609– Trucking Associations, 531 U.S. 457, the choice made.’ ’’ Id. (quoting 10 (emphasis added). The Court further 468 (2001). Burlington Truck Lines v. United States, found that the rule was clearly My colleagues’ action here is 371 U.S. 156, 168 (1962)). See also consistent with authority under Section markedly like the Federal Trade Business Roundtable et al. v. S.E.C.,— 9(b) to make appropriate bargaining unit Commission (FTC) regulation rejected as F.3d—, 2011 WL 2936808 (D.C. Cir., determinations. It specifically rejected ultra vires by the court of appeals in July 22, 2011) (finding SEC acted the argument that language in 9(b) Am. Bar Ass’n v. FTC, supra. The FTC arbitrarily and capriciously by relying directing the Board to decide the issued a ruling that attorneys engaged in on insufficient empirical data appropriate bargaining unit ‘‘in each certain practices were financial supporting its rule and by completely case’’ limited its authority to define institutions subject to the privacy discounting contrary studies). appropriate units by rulemaking. provision of the Gramm-Leach-Bliley In AHA, the Board’s health care Congress expressly authorized the Act (GBLA). Upon review of the bargaining units rule was supported by Board in Section 9(b) to determine detailed statutory scheme at issue, the ‘‘the extensive record developed during appropriate bargaining units and the court found it ‘‘difficult to believe that the rulemaking proceedings, as well as Board exercised its rulemaking Congress, by any remaining ambiguity, its experience in the adjudication of authority to promulgate a rule intended to undertake the regulation [of health care cases during the 13-year ‘‘necessary to carry out’’ Section 9(b). In a subject] * * * and never mentioned period between the enactment of the contrast, as previously stated, there is [it] in the statute.’’ 430 F.3d at 469. The health care amendments and its notice no reasonable basis for finding that a court further opined that to find the of proposed rulemaking.’’ AHA, 499 rule making it unlawful for employers to FTC’s interpretation to be ‘‘deference- U.S. at 618. The Supreme Court upheld fail to post and maintain a notice of worthy, we would have to conclude that the validity of the rule finding it ‘‘based employee rights and selected illustrative Congress not only had hidden a rather on substantial evidence and supported large elephant in a rather obscure by a ‘‘reasoned analysis.’’ Id. at 619 182 365 U.S. at 676. mousehole, but had buried the (citing Motor Vehicle Mfrs. Ass., 463 183 My colleagues attempt to distinguish Local ambiguity in which the pachyderm U.S. at 57). 357 as limited to an interpretation of Sec. 8(a)(3) lurks beneath an incredibly deep mound By contrast, the majority’s articulation and 8(b)(2)’s prohibition of discriminatory practices. That may have been the issue before the of specificity, none of which bears the of the need to mandate that employers Court, but I do not view the quoted rationale as so footprints of the beast or any indication violate Section 8(a)(1) unless they post limited. that Congress even suspected its a notice of employee rights is not based

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on substantial evidence, nor does it management attorneys to the opposite communications, sufficient when the provide a satisfactory explanation for effect that the employees know about Wagner Act was passed, but not now? the choice they have made. They their rights under the Act, but my The union density levels for 1935 and contend that a mandatory notice posting colleagues find these less persuasive. today are roughly the same.185 Why at rule enforceable through Section 8(a)(1) In any event, the partisan opinions a time when the Board champions its is needed because they believe that most and perceptions, although worthy of new Web site and the Acting General employees are unaware of their NLRA consideration, ultimately fail as Counsel continues to encourage the rights and therefore cannot effectively substantial evidence supporting the regional outreach programs initiated by exercise those rights. This belief is Board majority’s initial premise for his predecessor, do my colleagues so based on: (1) Some studies indicating proposing the rule. There remains the readily dismiss the Board’s role in that employees and high school Board’s conclusion that the decline in providing information about rights students about to enter the work force union density provides the missing under the statute we administer? For are generally uninformed about labor factual support. The majority explains that matter, why are the numerous law; (2) an influx of immigrants in the that there was less need for a posting of employee, labor organizer, and worker labor force who are presumably also information about NLRA rights when advocacy groups whose comments uninformed about labor law; (3) the the union density was higher because profess awareness of these rights unable current low and declining percentage of ‘‘friends and family who belonged to to communicate this information to union-represented employees in the unions’’ would be a source of those who they know lack such private sector, which presumably means information. This is nothing more than awareness? Is the problem one of access that unions are less likely to be a source supposition. There is no empirical or message? Would a reversal of the of information about employee rights; evidence of a correlation between union union density trend or an increase in and (4) the absence of any general legal density and access to information about petition and charge filings be the only requirement that employers or anyone employee rights, just as there are no reliable indicators of increased else inform employees about their broad-based studies supporting the awareness? NLRA rights. 75 FR 80411. suppositions about a lack of information I would think that a reasoned Neither the Notice of Proposed stemming from high school curricula or explanation for the choice of a sweeping Rulemaking nor today’s notice the influx of immigrants in the work rule making it unlawful for employers to summarizing comments in response to force. fail to post and maintain notice of that notice come anywhere close to At bottom, the inadequacy of the employee rights would at least include providing a substantial factual basis record to support my colleagues’ factual some discussion of these questions and supporting the belief that most premise is of no matter to them. In attempt to marshal more than a employees are unaware of their NLRA response to comments contending that fragmented and inconclusive factual rights. As for the lack of high school the articles and studies they cite are old record to support their choice. The education on this subject, we have only and inadequately supported, they glibly majority fails to do so. Their rule is a few localized studies cited in a 1995 respond that the commenters ‘‘cite no patently arbitrary and capricious. journal article by a union attorney.184 more recent or better supported studies Executive Order 13496 With respect to the assumption that to the contrary,’’ as if opponents of the immigrants entering the work force, we proposed rule bear that burden. Of The majority mentions in passing have even less, only anecdotal accounts. course, it is the agency’s responsibility Executive Order 13496 186 and the DOL For that matter, beyond the cited journal to make factual findings that support its implementing regulation 187 mandating article, almost all supposed factual decision and those findings must be that Federal contractors post a notice to support for the premise that employees supported by substantial evidence that employees of NLRA rights that is in are generally unaware of their rights must examine the relevant data and most respects identical to the notice at comes in comments received from articulate a satisfactory explanation for issue here. Their consideration of this individuals, union organizers, attorneys its action. Burlington Truck Lines, 371 administrative action should have led representing unions, and immigrant U.S. at 167. them to the understanding that they lack rights and worker assistance Even more telling is the majority’s the authority to do what the President organizations agreeing, based on footnote observation that there is no real and DOL clearly could do to advance professed personal experience, that need to conduct a study of the extent of essentially the same policy choice. most employees (obviously not employees’ knowledge of NLRA rights The authority to require that including most of the employee because the notice posting rule would contractors agree to post an NLRA commenters) are unfamiliar with their be justified even if only 10 percent of employee rights notice as part of doing NLRA rights. There are, as well, the workforce lacked such knowledge. business with the Federal government anecdotal accounts and comments from This statement betrays the entire factual comes both from the President’s employers, employer associations and premise upon which the rulemaking authority as chief executive and the initiative was purportedly founded and specific grant of Congressional authority 184 Peter D. DeChiara, ‘‘The Right to Know: An reveals a predisposition to issue the rule in the Federal Property and Argument for Informing Employees of Their Rights regardless of the facts. This is patently Administrative Services Act, 40 U.S.C. under the National Labor Relations Act,’’ 32 Harv. ‘‘arbitrary and capricious.’’ 101 et seq. There was no need or J. on Legis. 431, at 436 and fn. 28 (1995). attempt to justify the promulgation of In the Notice of Proposed Rulemaking, the Even assuming, if we must, that there majority also relied on two articles by Professor is some factual basis for a concern that the notice-posting rule by relying on Charles J. Morris, a co-petitioner for notice-posting employees lack sufficient information evidence that employees lacked rulemaking: ‘‘Renaissance at the NLRB— about their NLRA rights, the majority knowledge of their rights. Moreover, in Opportunity and Prospect for Non-Legislative Procedural Reform at the Labor Board,’’ 23 Stetson also fails to provide a rational L. Rev. 101, 107 (1993); and ‘‘NLRB Protection in explanation for why that concern 185 Mayer, Gerald, ‘‘Union Membership Trends in the Nonunion Workplace: A Glimpse at a General dictates their choice made to address the United States’’ (2004). Federal Publications. Theory of Section 7 Conduct,’’ 137 U. Pa. L. Rev. Paper 174, Appendix A. http:// that concern. Why, for instance, was a _ 1673, 1675–1676 (1989). Professor Morris did not digitalcommons.ilr.cornell.edu/key workplace/. refer to any specific evidence supporting a belief noncompulsory information system, 186 74 FR 6107 (Feb. 4, 2009). that employees lack knowledge of their rights. primarily reliant on personal union 187 75 FR 28368 (May 20, 2011).

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the notice of a final rule, DOL rejected wherever possible, when drafting Board then multiplied this figure by commenters’ contentions that the regulations that will have a significant 2 hours to estimate the average costs for Executive Order and implementing impact on a substantial number of small employers to comply with this rule regulation were preempted by the entities. The focus of the RFA is to during the first year in which the rule Board’s jurisdiction under the Garmon ensure that agencies ‘‘review draft rules is in effect. Accordingly, this rule is doctrine.188 Necessarily, this meant that to assess and take appropriate account estimated to impose average costs of DOL believed that the rule requiring of the potential impact on small $64.40 per employer subject to the federal contractors to post the employee businesses, small governmental NLRA (2 hours × $32.20) during the first rights notice did not involve any rights jurisdictions, and small organizations, year.191 These costs will decrease protected by Section 7 of the Act, such as provided by the [RFA].’’ E.O. 13272, dramatically in subsequent years as a right to receive such information Sec. 1, 67 FR 53461 (‘‘Proper because the only employers affected from their employer, or conduct Consideration of Small Entities in will be those that did not previously prohibited by the Act, such as the Agency Rulemaking’’). However, an satisfy their posting requirements or that employer’s failure to provide such agency is not required to prepare a final have since expanded their facilities or information. regulatory flexibility analysis for a final established new ones. Because the final Not only does my colleagues’ rule if the agency head certifies that the rule will not require employers to post rulemaking action today contradict rule will not, if promulgated, have a the notice by email, instant messaging, DOL’s preemption analysis, but its flaws significant economic impact on a text messaging, and the like, the cost of are manifest in comparison to the DOL’s substantial number of small entities. 5 compliance should be, if anything, rule and the authority enabling it. U.S.C. 605(b). Based on the analysis somewhat less than the Board below, in which the Board has previously estimated. Conclusion189 estimated the financial burdens to According to the United States Census Surely, no one can seriously believe employers subject to the NLRA Bureau, there were approximately 6 that today’s rule is primarily intended to associated with complying with the million businesses with employees in inform employees of their Section 7 requirements contained in this final 2007. Of those, the SBA estimates that right to refrain from or to oppose rule, the Board has certified to the Chief all but about 18,300 were small organizational activities, collective Counsel for Advocacy of the Small businesses with fewer than 500 192 bargaining, and union representation. Business Administration (SBA) that this employees. This rule does not apply My colleagues seek through rule will not have a significant to employers that do not meet the promulgation of this rule to reverse the economic impact on a substantial Board’s jurisdictional requirements, but steady downward trend in union number of small entities. density among private sector employees The primary goal of this rule is business workers were $23.00. Table B–8. Accordingly, the Board multiplied that number by in the non-agricultural American notifying employees of their rights 1.4 to arrive at its estimate of $32.20 average hourly workforce. Theirs is a policy choice under the NLRA. This goal is achieved earnings, including fringe benefits.) In the NPRM, which they purport to effectuate with through the posting of notices by the Board estimated hourly earnings of $31.02, the force of law on several fronts in based on BLS data from January 2009. 75 FR 80415. employers subject to the NLRA of the The estimate has been updated to reflect increases rulemaking and in case-by-case rights of employees under the NLRA. in hourly earnings since that time. Those increases adjudication. In this instance, their The Board will make the notices have been relatively minor, and do not affect the action in declaring that employers available at no cost to employers; there Board’s conclusion that the economic impact of the violate the law by failing to inform rule will not be significant; see discussion below. are no information collection, record 191 The National Roofing Contractors Association employees of their Section 7 rights is keeping, or reporting requirements. asserts (without support) that ‘‘federal agencies both unauthorized and arbitrary and The Board estimates that in order to have a notoriously poor track record in estimating capricious. Regardless of the arguable comply with this rule, each employer the costs of new regulations on businesses’’; it merits of their policy choice or the therefore predicts that ‘‘the actual cost for many subject to the NLRA will spend a total employers could be considerably higher.’’ The broad scope of Chevron deference and of 2 hours during the first year in which Board recognizes that some employers, generally the Board’s rulemaking authority, I am the rule is in effect. This includes 30 firms with extensive and/or multiple facilities, may confident that a reviewing court will minutes for the employer to learn where incur initial compliance costs in excess of the soon rescue the Board from itself and Board’s estimate. For example, a company with and how to post the required notices, 30 multiple locations may require more than 30 restore the law to where it was before minutes to acquire the notices from the minutes to physically post the notices on all of its the sorcerer’s apprentice sent it askew. Board or its Web site, and 60 minutes various bulletin boards. The Board’s estimate, to post them physically and however, is an average for all employers; many V. Regulatory Procedures small employers, especially those with only one electronically, depending on where and facility and/or limited electronic communication A. Regulatory Flexibility Act how the employer customarily posts with employees, may incur lower compliance costs. The Regulatory Flexibility Act of 1980 notices to employees. The Board In this regard, however, contrary to numerous assumes that these activities will be comments, such as that of St Mar Enterprises, Inc., (RFA), 5 U.S.C. 601 et seq., requires the Board does not expect that the rule will be agencies promulgating final rules to performed by a professional or business ‘‘very burdensome’’ for businesses with more than prepare a final regulatory flexibility worker, who, according to Bureau of one facility. Normally, such firms should have to analysis and to develop alternatives Labor Statistics data, earned a total learn about the rule’s requirements and acquire the hourly wage of about $32.20 in March notices only once, no matter how many facilities are 190 involved. The same should be true for electronic 188 San Diego Bldg. Trades Council v. Garmon, 2011, including fringe benefits. The posting: downloading the notice and posting it on 359 U.S. 236, 244 (1959) an employer’s Web site normally should have to be 189 Because I find the rule is invalid, I find it 190 Source: U.S. Department of Labor, Bureau of done once for all facilities. Thus, the only unnecessary to comment on the content of the Labor Statistics, ‘‘Economic News Release,’’ Table additional costs involved for multi-facility firms notice or the consequences, other than finding an B–8, June 3, 2011 (available at http://www.bls.gov). should be those of physically posting the notices at unfair labor practice, if an employer fails to post the (The Board is administratively informed that BLS each facility. required notice. For the reasons stated in my estimates that fringe benefits are approximately 192 Source: SBA Office of Advocacy estimates dissenting opinion in J. Picini Flooring, 356 NLRB equal to 40 percent of hourly wages. Thus, to based on data from the U.S. Department of No. 9 (2010), I also disagree with the rule’s calculate total average hourly earnings, BLS Commerce, Bureau of the Census, and trends from requirement that certain employers must also multiplies average hourly wages by 1.4. In March, the U.S. Department of Labor, Bureau of Labor electronically distribute the notice. 2011, average hourly wages for professional and Statistics, Business Employment Dynamics.

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the Board does not have the means to an annual inflow or outflow across state several comments urge that small calculate the number of small lines of at least $50,000. Siemons employers be exempted from the rule, businesses within the Board’s Mailing Service, 122 NLRB 81 (1959). the Board remains persuaded, for the jurisdiction. Accordingly, the Board Given that the Board estimates that this reasons set forth in the NPRM, that such assumes for purposes of this analysis rule will cost, on average, $64.40, the an exemption is unwarranted. 195 that the great majority of the nearly 6 total cost for the smallest affected Some comments contend that, in million small businesses will be companies would be an amount equal to concluding that the proposed rule will affected, and further that this number is less than two-tenths of one percent of not have a significant impact on small a substantial number within the that required annual inflow or outflow employers, the Board understates the meaning of 5 U.S.C. 601. However, as (.13%). The Board concludes that such rule’s actual prospective costs. One discussed below, because the economic a small percentage is highly unlikely to comment, from Baker & Daniels LLP, impact on those employers is minimal, adversely affect a small business.193 argues that the Board improperly the Board concludes that, under 5 And, in the Board’s judgment, the social focuses solely on the cost of complying U.S.C. 605, the final rule will not have benefits of employees’ (and employers’) with the rule—i.e., of printing and a significant economic impact on any becoming familiar with employees’ posting the notice—and ignored the small employers. NLRA rights far outweigh the minimal ‘‘actual economic impact of the rule’s The RFA does not define ‘‘significant costs to employers of posting notices effect and purpose.’’ According to this economic impact.’’ 5 U.S.C. 601. In the informing employees of those rights.194 comment, it is predictable that, as more absence of specific definitions, ‘‘what is For all the foregoing reasons, the employees become aware of their NLRA ‘significant’ * * * will vary depending Board has concluded that the final rule rights, they will file more unfair labor on the problem that needs to be will not have a significant economic practice charges and elect unions to addressed, the rule’s requirements, and impact on a substantial number of small serve as their collective-bargaining the preliminary assessment of the rule’s entities. 5 U.S.C. 605. representatives. The comment further impact.’’ See A Guide for Government As discussed in the NPRM, because it asserts that the Board has ignored the Agencies: How to Comply with the assumes that a substantial number of ‘‘economic realities of unionization,’’ Regulatory Flexibility Act, Office of small businesses will be required to specifically that union wages are Advocacy, U.S. Small Business comply with the rule, the Board inflationary; that unions make business Administration at 17 (available at preliminarily considered alternatives less flexible, less competitive, and less http://www.sba.gov) (SBA Guide). As to that would minimize the impact of the profitable; and that unions cause job economic impact and whether it is rule, including a tiered approach for loss and stifle economic recovery from significant, one important indicator is small entities with only a few recessions. Accordingly, this comment the cost of compliance in relation to employees. However, as it also contends that ‘‘the Board’s RFA revenue of the entity or the percentage explained, the Board rejected those certification is invalid, and [that] the of profits affected. Id. at 17. More alternatives, concluding that a tiered Board must prepare an initial regulatory specifically, the criteria to be considered approach or an exemption for some flexibility analysis.’’ Numerous other are: small entities would substantially comments echo similar concerns, but • Whether the rule will lead to long- undermine the purpose of the rule without reference to the RFA. term insolvency, i.e., regulatory costs because so many employers would be The Board disagrees with the that significantly reduce profits; exempt under the SBA definitions. • comment submitted by Baker & Daniels Whether the rule will lead to short- Given the very small estimated cost of 196 term insolvency, i.e., increasing LLP. Section 605(b) of the RFA states compliance, it is possible that the that an agency need not prepare an operating expenses or new debt more burden on a small business of than cash reserves and cash flow can initial regulatory flexibility analysis if determining whether it fell into a the agency head certifies that the rule support, causing nonmarginal firms to particular tier might exceed the burden close; • of compliance. The Board further 195 Cass County Electric Cooperative says that, Whether the rule will have pointed out that Congress gave the after estimating the average cost of compliance, ‘‘the disproportionate effects, placing small Board very broad jurisdiction, with no NLRB quickly digresses into an attempt to estimate entities at a significant competitive the cost of the proposed rule on only small suggestion that it wanted to limit businesses.’’ The Board responds that in estimating disadvantage; and coverage of any part of the NLRA to • Whether the rule will result in the cost of the rule on small businesses, it was only larger employers. The Board also doing what the RFA explicitly requires (and that inefficiency, i.e., in social costs to small believes that employees of small focusing on small businesses, which comprise more entities that outweigh the social benefits than 99 percent of potentially affected firms, is employers have no less need of a Board resulting from the rule. Id. at 26. hardly a ‘‘digression’’). The comment also asserts notice than have employees of larger Applying these standards, the Board that the Board concluded ‘‘that the cost of employers. Finally, the Board’s estimating the implementation cost will likely concludes that the economic impact of jurisdictional standards mean that very exceed the cost of implementation, and thus is not its notice-posting rule on small small employers will not be covered by warranted. At best, this is a poor excuse to justify employers is not significant. The Board the rule.’’ This misstates the Board’s observation the rule in any case. 75 FR 80416. (A has determined that the average cost of that ‘‘Given the very small estimated cost of summary of the Board’s discretionary compliance, it is possible that the burden on a small complying with the rule in the first year jurisdictional standards appears in business of determining whether it fell into a for all employers subject to the NLRA § 104.204, below.) Thus, although particular tier might exceed the burden of will be $64.40. It is unlikely in the compliance.’’ This observation was one of the extreme that this minimal cost would reasons why the Board rejected a tiered approach 193 In reaching this conclusion, the Board believes to coverage for small entities, not an ‘‘excuse to lead to either the short- or long-term it is likely that employers that might otherwise be justify the rule.’’ 75 FR 80416. insolvency of any business entity, or significantly affected even by the low cost of 196 In any event, the comment from Baker & place small employers at a competitive compliance under this rule will not meet the Daniels LLP and related comments are difficult to disadvantage. Since this rule applies Board’s jurisdictional requirements, and square with the assertions made in numerous other consequently those employers will not be subject to comments that the notice posting is unnecessary only to organizations within the NLRB’s this rule. because employees are already well aware of their jurisdictional standards, the smallest 194 See further discussion in section II, subsection NLRA rights and have made informed decisions not employer subject to the rule must have C, Factual Support for the Rule, above. to join unions or seek union representation.

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will not have a significant economic to the rule’s projected compliance costs should not be necessary for employers, impact on a substantial number of small to small entities (none of which would small or large, to add human resources entities. 5 U.S.C. 605(b) (emphasis result from posting a workplace notice), staff, retain counsel, or resort to added). The Board understands the not the kinds of speculative and indirect litigation if they have questions ‘‘economic impact of * * * the rule’’ to economic impact that Baker & Daniels concerning whether the proposed rule refer to the costs to affected entities of LLC invokes.200 applies to them or about the complying with the rule, not to the Associated Builders and Contractors, requirements for technical compliance economic impact of a series of Inc. (ABC) and Retail Industry Leaders with the rule, including how the subsequent decisions made by Association (RILA) contend that the electronic posting provisions individual actors in the economy that Board’s RFA analysis fails to account for specifically affect their enterprises.202 are neither compelled by, nor the the costs of electronic notice posting, Such questions can be directed to the inevitable result of, the rule.197 Even if especially for employers that Board’s regional offices, either by more employees opt for union communicate with employees via telephone, personal visit, email, or representation after learning about their multiple electronic means. Both regular mail, and will be answered free rights, employers can avoid the adverse comments deplore what they consider of charge by representatives of the effects on business costs, flexibility, and to be the rule’s vague requirements in Board.203 profitability predicted by Baker & this respect. ABC argues that clear Cass County Electric Cooperative Daniels LLP and other commenters by guidance is needed, and that the Board argues that the Board failed to take into not agreeing to unions’ demands that should withdraw the electronic notice account legal expenses that employers might produce those effects.198 posting requirements until more will incur if they fail to ‘‘follow the The Board finds support for this view information can be gathered. RILA letter of the proposed rule.’’ The in the language of Section 603 of the asserts that ‘‘[d]eciphering and comment urges that the Board should RFA, which lists the items to be complying with the Board’s estimate the cost to businesses ‘‘should included in an initial regulatory requirements would impose significant they have to defend themselves against flexibility analysis if one is required. 5 legal and administrative costs and an unfair labor practice for failure to U.S.C. 603. Section 603(a) states only inevitably result [in] litigation as parties comply with the rule, no matter what that such analysis ‘‘shall describe the disagree about when a communication the circumstances for that failure might impact of the proposed rule on small is ‘customarily used,’ and whether and be,’’ presumably including failures to entities.’’ 5 U.S.C. 603(a). However, when employees need to be informed post the notice by employers that are Section 603(b) provides, as relevant through multiple communications.’’ unaware of the rule and inadvertent here, that ‘‘[e]ach initial regulatory Numerous comments assert that failures to comply with technical flexibility analysis * * * shall employers, especially small employers posting requirements. International contain—* * * that lack professional human resources Foodservice Distributors Association ‘‘(4) a description of the projected staff, will incur significant legal contends that the Board also should reporting, recordkeeping and other expenses as they attempt to comply have considered the costs of tolling the compliance requirements of the with the rule. For example, Fisher and statute of limitations when employers proposed rule, including an estimate of Phillips, a management law firm, urges fail to post the notice. However, the the classes of small entities which will that the cost of legal fees should be costs referred to in these comments are be subject to the requirement and the included in assessing the economic costs of not complying with the rule, not type of professional skills necessary for impact of the proposed rule: ‘‘[I]t might compliance costs. As stated above, for preparation of the report or record[.]’’ 5 be considered naı¨ve to assume that a RFA purposes, the relevant economic U.S.C. 603(b)(4) (emphasis added). The significant percentage of small analysis focuses on the costs of Small Business Administration cites, as employers would not seek the advice of complying with the rule.204 examples of ‘‘other compliance counsel, and it would be equally naı¨ve requirements,’’ to assume that a significant percentage rule’s electronic notice posting requirements; its of those newly-engaged lawyers could estimated average cost of $62.04 specifically (a) Capital costs for equipment needed to be retained for as little as $31.02/hour.’’ included such costs. 75 FR 80415. Although ABC meet the regulatory requirements; (b) costs of faults the Board for failing to issue a preliminary modifying existing processes and procedures Those comments are not persuasive. request for information (RFI) concerning the ways to comply with the proposed rule; (c) lost The choice to retain counsel is not a employers communicate with employees sales and profits resulting from the proposed requirement for complying with the electronically, the Board did ask for comments concerning its RFA certification in the NPRM, id. rule; (d) changes in market competition as a rule. This is not a complicated or at 80416. In this regard, ABC states only that ‘‘many result of the proposed rule and its impact on nuanced rule. The employer is only ABC member companies communicate with small entities or specific submarkets of small required to post a notice provided by employees through email or other electronic entities; (e) extra costs associated with the the Board in the same manner in which means,’’ which the Board expressly contemplated payment of taxes or fees associated with the that employer customarily posts notices in the NPRM, id. at 80413, and which is also the proposed rule; and (f) hiring employees Board’s practice with respect to communicating dedicated to compliance with regulatory to its employees. The Board has with its own employees. If ABC has more specific requirements.199 explained above what the rule’s information it has failed to provide it. In any event, electronic posting provisions require of the final rule will not require email or many other types of electronic notice. Thus, the ‘‘impact’’ on small entities employers in general, and it has referred to in Section 603(a) refers only 202 Association of Corporate Counsel contends simplified those provisions by that employers will have to modify their policies eliminating the requirement that notices and procedures manuals as a result of the rule. The 197 For RFA purposes, the relevant economic Board questions that contention, but even if some impact on small entities is the impact of be provided by email and many other 201 employers do take those steps, they would not be compliance with the rule. Mid-Tex Electric forms of electronic communication. It a cost of complying with the rule. Cooperative, Inc. v. FERC, 773 F.2d 327, 342 (D.C. 203 Fisher and Phillips also suggest that the Board Cir. 1985), cited in SBA Guide, above, at 77. 200 Baker & Daniels LLP cites no authority to failed to take into account the effect that the 198 NLRA Section 8(d) expressly states that the support its contention that the RFA is concerned proposed rule would have on the Board’s own case obligation to bargain in good faith ‘‘does not compel with costs other than the costs of compliance with intake and budget. The RFA, however, does not either party to agree to a proposal or require the the rule, and the Board is aware of none. require an estimate of the economic effects of making of a concession[.]’’ 29 U.S.C. 158(d). 201 Contrary to ABC’s and RILA’s assertions, the proposed rules on Federal agencies. 199 SBA Guide, above, at 34. Board did estimate the cost of complying with the 204 See fn. 197, above.

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Some comments assert that the notice is not defaced or torn down. The posting of the employee notice required content of the notice will prompt rule does not require, or even suggest, by § 104.202. As noted in § 104.202(e), employee questions, which managers that employers must spend thousands of the Board will make the notice and supervisors will have to answer, dollars to install tamper-proof bulletin available, and employers will be and be trained to answer, and that the boards or that employers must permitted to post copies of the notice Board failed to account for the cost of constantly monitor the notice.208 that are exact duplicates in content, such training and discussions in terms One comment contends that most size, format, and type size and style. of lost work time.205 Other comments small employers do not have 11 x 17- Under the regulations implementing the contend that employers will incur costs inch color printers, and therefore will PRA, ‘‘[t]he public disclosure of of opposing an increased number of have to have the posters printed information originally supplied by the union organizing campaigns.206 commercially at a cost that, alone, Federal government to [a] recipient for Relatedly, several comments state that assertedly will exceed the Board’s the purpose of disclosure to the public’’ employers should be allowed to, and/or estimate of the cost of the rule. The is not considered a ‘‘collection of will respond to the notice by informing Board understands the concerns of this information’’ under the Act. See 5 CFR employees of aspects of unionization small employer. The Board points out 1320.3(c)(2). Therefore, contrary to and collective bargaining that are not that it will furnish a reasonable number several comments, the posting covered by the notice; some suggest that of copies of the notice free of charge to requirement is not subject to the employers may post their own notices any requesting employer. Moreover, as PRA.210 presenting their point of view.207 (A few explained above, employers may The Board received no comments comments, by contrast, protest that reproduce the notice in black-and-white suggesting that the PRA covers the costs employers will be prohibited from and may print the notice on two to the Federal government of presenting their side of the issues raised standard-sized, 8.5 x 11-inch pages and administering the regulations by the posting of notices.) The Board tape or bind them together, rather than established by the proposed rule. responds that any costs that employers having them printed commercially. Therefore, the NPRM’s discussion of may incur in responding to employee A number of comments argue that the this issue stands. questions, in setting forth the rule will lead to workplace conflict. For Accordingly, this rule does not employers’ views on unions and example, the comment of Wiseda contain information collection collective bargaining, or in opposing Corporation contains the following: requirements that require approval by union organizing efforts will be incurred Unnecessary Confusion and Conflict in the the Office of Management and Budget entirely at the employers’ own volition; Workplace. The labor law terms and under the PRA (44 U.S.C. 3507 et seq.). they are not a cost of complying with industrial union language of the proposed 211 the rule. notice (such as hiring hall and concerted C. Congressional Review Act (CRA) As discussed above, many comments activity) present an unclear and adversarial This rule is a ‘‘major rule’’ as defined express concerns that union supporters picture to employees. Most non-union by Section 804(2) of the Small Business will tear down the notices in order to employers like us, who wish to remain non- union, encourage cooperative problem Regulatory Enforcement Fairness Act of expose employers to 8(a)(1) liability for solving. In a modern non-union workplace, 1996 (Congressional Review Act), failing to post the notices. Some of these to require such a poster encouraging strikes because it will have an effect on the comments also contend that, as a result, and restroom leaflets is disrespectful of the economy of more than $100 million, at employers will have to spend hard work and good intentions of employers, least during the year it takes effect. 5 considerable time monitoring the management, and employees. The proposed U.S.C. 804(2)(A).212 Accordingly, the notices to make sure that they are not poster would exist alongside other company notices on problem-solving, respect for torn down, or incur additional costs of 210 The California Chamber of Commerce and the installing tamper-proof bulletin boards. others, resolving harassment issues, etc., and National Council of Agricultural Employers dispute would clearly be out of character and this conclusion. They assert that the PRA One commenter predicts that his inappropriate. (Emphasis in original.) employer will have to spend $20,000 for distinguishes between the ‘‘agencies’’ to which it Another comment puts it more bluntly: applies and the ‘‘Federal government,’’ and such bulletin boards at a single facility, therefore that the exemption provided in 5 CFR or a total of $100,000 at all of its ‘‘The notice as proposed is more of an 1320.3(c)(2) applies only to information supplied by facilities, and even then will have to invitation to cause employee/employer ‘‘the actual Federal government,’’ not to information spend two hours each month disputes rather than an explanation of supplied by a Federal agency such as the Board. employee rights.’’ The Board’s response The flaw in this argument is that there is no such monitoring the postings. For the reasons legal entity as ‘‘the [actual] Federal government.’’ discussed above, the Board is not is that the ill effects predicted in these What is commonly referred to as ‘‘the Federal convinced at this time that the problem comments, like the predicted adverse government’’ is a collection of the three branches of posters being torn down is anything effects of unionization discussed above, of the United States government, including the are not costs of compliance with the departments of the executive branch, and the more than speculative, and accordingly various independent agencies, including the Board. is inclined to discount these predictions rule, but of employees’ learning about If ‘‘the Federal government’’ can be said to act at substantially. In any event, the rule their workplace rights. In addition, all, it can do so only through one or more of those requires only that employers ‘‘take Congress, not the Board, created the entities—in this instance, the Board—and that is subject rights and did so after finding undoubtedly the meaning that the drafters of 5 CFR reasonable steps’’—not every 1320(c)(2) meant to convey. conceivable step—to ensure that the that vesting employees with these rights 211 5 U.S.C. 801 et seq. would reduce industrial strife. 212 A rule is a ‘‘major rule’’ for CRA purposes if 205 See, e.g., comments of Cass County Electric 209 it will (A) Have an annual effect on the economy Cooperative and Baker & McKenzie. The latter B. Paperwork Reduction Act (PRA) of $100 million or more; (B) cause a major increase estimates that each private sector employee will The final rule imposes certain in costs or prices for consumers, individual spend at least an hour attending meetings minimal burdens associated with the industries, government agencies, or geographic concerning the content of the notice, and that the regions; or (C) result in significant adverse effects cost to the economy in terms of lost employee work on competition, employment, investment, time will be $3.5 billion. 208 Contrary to one comment’s suggestion, no productivity, innovation, or the ability of United 206 See, e.g., comment of Dr. Pepper Snapple employer will be ‘‘bankrupted’’ by fines imposed if States-based enterprises to compete with foreign- Group. the notice is torn down. As explained above, the based enterprises in domestic and export markets. 207 See, e.g., comments of Metro Toyota and Board does not have the authority to impose fines. 5 U.S.C. 804. The notice-posting rule is a ‘‘major Capital Associated Industries, Inc. 209 44 U.S.C. 3501 et seq. Continued

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effective date of the rule is 75 days after Authority: National Labor Relations Act partnerships, associations, corporations, publication in the Federal Register.213 (NLRA), Section 6, 29 U.S.C. 156; legal representatives, trustees, trustees Administrative Procedure Act, 5 U.S.C. 553. in cases under title 11 of the United List of Subjects in 29 CFR Part 104 States Code, or receivers. 29 U.S.C. Subpart A—Definitions, Requirements Administrative practice and 152(1). for Employee Notice, and Exceptions procedure, Employee rights, Labor Rules, regulations, and orders, as used and Exemptions unions. in § 104.202, means rules, regulations, Text of Final Rule § 104.201 What definitions apply to this and relevant orders issued by the Board part? pursuant to this part. Accordingly, a new part 104 is added Supervisor means any individual to 29 CFR chapter 1 to read as follows: Employee includes any employee, and is not limited to the employees of a having authority, in the interest of the PART 104—NOTIFICATION OF particular employer, unless the NLRA employer, to hire, transfer, suspend, lay EMPLOYEE RIGHTS; OBLIGATIONS explicitly states otherwise. The term off, recall, promote, discharge, assign, OF EMPLOYERS includes anyone whose work has ceased reward, or discipline other employees, because of, or in connection with, any or responsibly to direct them, or to Subpart A—Definitions, Requirements for current labor dispute or because of any adjust their grievances, or effectively to Employee Notice, and Exceptions and unfair labor practice, and who has not recommend such action, if in Exemptions obtained any other regular and connection with the foregoing the Sec. substantially equivalent employment. exercise of such authority is not of a 104.201 What definitions apply to this part? However, it does not include merely routine or clerical nature, but 104.202 What employee notice must requires the use of independent employers subject to the NLRA post in agricultural laborers, supervisors, or independent contractors, or anyone judgment. 29 U.S.C. 152(11). the workplace? Unfair labor practice means any 104.203 Are Federal contractors covered employed in the domestic service of any under this part? family or person at his home, or by his unfair labor practice listed in section 8 104.204 What entities are not subject to this parent or spouse, or by an employer of the National Labor Relations Act, 29 part? subject to the Railway Labor Act (45 U.S.C. 158. 29 U.S.C. 152(8). Appendix to Subpart A—Text of Employee U.S.C. 151 et seq.), or by any other Union means a labor organization as Notice person who is not an employer as defined above. Subpart B—General Enforcement and defined in the NLRA. 29 U.S.C. 152(3). § 104.202 What employee notice must Complaint Procedures Employee notice means the notice set employers subject to the NLRA post in the 104.210 How will the Board determine forth in the Appendix to Subpart A of workplace? whether an employer is in compliance this part that employers subject to the (a) Posting of employee notice. All with this part? NLRA must post pursuant to this part. employers subject to the NLRA must 104.211 What are the procedures for filing Employer includes any person acting a charge? post notices to employees, in 104.212 What are the procedures to be as an agent of an employer, directly or conspicuous places, informing them of followed when a charge is filed alleging indirectly. The term does not include their NLRA rights, together with Board that an employer has failed to post the the United States or any wholly owned contact information and information required employee notice? Government corporation, or any Federal concerning basic enforcement 104.213 What remedies are available to cure Reserve Bank, or any State or political procedures, in the language set forth in a failure to post the employee notice? subdivision thereof, or any person the Appendix to Subpart A of this part. 104.214 How might other Board subject to the Railway Labor Act, or any (b) Size and form requirements. The proceedings be affected by failure to post labor organization (other than when the employee notice? notice to employees shall be at least 11 acting as an employer), or anyone acting inches by 17 inches in size, and in such Subpart C—Ancillary Matters in the capacity of officer or agent of format, type size, and style as the Board 104.220 What other provisions apply to this such labor organization. 29 U.S.C. shall prescribe. If an employer chooses part? 152(2). Further, the term ‘‘employer’’ to print the notice after downloading it does not include entities over which the from the Board’s Web site, the printed rule’’ because, as explained in the discussion of the Board has been found not to have notice shall be at least 11 inches by 17 Regulatory Flexibility Act above, the Board has jurisdiction, or over which the Board estimated that the average cost of compliance with inches in size. the rule will be approximately $64.40 per affected has chosen through regulation or (c) Adaptation of language. The employer; thus, because there are some 6 million adjudication not to assert jurisdiction. National Labor Relations Board may employers that could potentially be affected by the Labor organization means any find that an Act of Congress, rule, the total cost to the economy of compliance organization of any kind, or any agency clarification of existing law by the with the rule will be approximately $386.4 million. As further explained, nearly all of that cost will be or employee representation committee courts or the Board, or other incurred during the year in which the rule takes or plan, in which employees participate circumstances make modification of the effect; in subsequent years, the only costs of and which exists for the purpose, in employee notice necessary to achieve compliance will be those incurred by employers whole or in part, of dealing with the purposes of this part. In such that either open new facilities or expand existing ones, and those that for one reason or another fail employers concerning grievances, labor circumstances, the Board will promptly to comply with the rule during the first year. The disputes, wages, rates of pay, hours of issue rules, regulations, or orders as are Board therefore expects that the costs of compliance employment, or conditions of work. 29 needed to ensure that all future will be far less than $100 million in the second and U.S.C. 152(5). employee notices contain appropriate subsequent years. The Board is confident that the rule will have none of the effects enumerated in 5 National Labor Relations Board language to achieve the purposes of this U.S.C. 804(2)(B) and (C) above. (Board) means the National Labor part. 213 The Board finds unpersuasive the suggestions Relations Board provided for in section (d) Physical posting of employee in several comments that the effective date of the 3 of the National Labor Relations Act, 29 notice. The employee notice must be rule be postponed to as late as April 15, 2012. The Board finds nothing in the requirements of the rule U.S.C. 153. 29 U.S.C. 152(10). posted in conspicuous places where or in the comments received that would warrant Person includes one or more they are readily seen by employees, postponing the effective date. individuals, labor organizations, including all places where notices to

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employees concerning personnel rules (f) Electronic posting of employee (1) The United States or any wholly or policies are customarily posted. notice. (1) In addition to posting the owned Government corporation; Where 20 percent or more of an required notice physically, an employer (2) Any Federal Reserve Bank; employer’s workforce is not proficient must also post the required notice on an (3) Any State or political subdivision in English and speaks a language other intranet or internet site if the employer thereof; than English, the employer must post customarily communicates with its (4) Any person subject to the Railway the notice in the language employees employees about personnel rules or Labor Act; speak. If an employer’s workforce policies by such means. An employer (5) Any labor organization (other than includes two or more groups that customarily posts notices to when acting as an employer); or constituting at least 20 percent of the employees about personnel rules or (6) Anyone acting in the capacity of workforce who speak different policies on an intranet or internet site officer or agent of such labor languages, the employer must either will satisfy the electronic posting organization. physically post the notice in each of requirement by displaying (b) In addition, employers employing those languages or, at the employer’s prominently—i.e., no less prominently exclusively workers who are excluded option, post the notice in the language than other notices to employees—on from the definition of ‘‘employee’’ spoken by the largest group of such a site either an exact copy of the under § 104.201 are not covered by the employees and provide each employee poster, downloaded from the Board’s requirements of this part. in each of the other language groups a Web site, or a link to the Board’s Web (c) This part does not apply to entities copy of the notice in the appropriate site that contains the poster. The link to over which the Board has been found language. If an employer requests from the Board’s Web site must read, not to have jurisdiction, or over which the Board a notice in a language in ‘‘Employee Rights under the National the Board has chosen through regulation which it is not available, the requesting Labor Relations Act.’’ or adjudication not to assert employer will not be liable for non- (2) Where 20 percent or more of an jurisdiction. compliance with the rule until the employer’s workforce is not proficient (d)(1) This part does not apply to notice becomes available in that in English and speaks a language other entities whose impact on interstate language. An employer must take than English, the employer must commerce, although more than de reasonable steps to ensure that the provide notice as required in paragraph minimis, is so slight that they do not notice is not altered, defaced, covered (f)(1) of this section in the language the meet the Board’s discretionary by any other material, or otherwise employees speak. If an employer’s jurisdiction standards. The most rendered unreadable. workforce includes two or more groups commonly applicable standards are: (e) Obtaining a poster with the constituting at least 20 percent of the (i) The retail standard, which applies employee notice. A poster with the workforce who speak different to employers in retail businesses, required employee notice, including a languages, the employer must provide including home construction. The Board poster with the employee notice the notice in each such language. The will take jurisdiction over any such translated into languages other than Board will provide translations of the employer that has a gross annual English, will be printed by the Board, link to the Board’s Web site for any volume of business of $500,000 or more. and may be obtained from the Board’s employer that must or wishes to display (ii) The nonretail standard, which office, 1099 14th Street, NW., the link on its Web site. If an employer applies to most other employers. It is Washington, DC 20570, or from any of requests from the Board a notice in a based either on the amount of goods the Board’s regional, subregional, or language in which it is not available, the sold or services provided by the resident offices. Addresses and requesting employer will not be liable employer out of state (called ‘‘outflow’’) telephone numbers of those offices may for non-compliance with the rule until or goods or services purchased by the be found on the Board’s Web site at the notice becomes available in that employer from out of state (called http://www.nlrb.gov. A copy of the language. ‘‘inflow’’). The Board will take poster in English and in languages other jurisdiction over any employer with an than English may also be downloaded § 104.203 Are Federal contractors covered annual inflow or outflow of at least from the Board’s Web site at http:// under this part? $50,000. Outflow can be either direct— www.nlrb.gov. Employers also may Yes, Federal contractors are covered. to out-of-state purchasers—or indirect— reproduce and use copies of the Board’s However, contractors may comply with to purchasers that meet other official poster, provided that the copies the provisions of this part by posting the jurisdictional standards. Inflow can also duplicate the official poster in size, notices to employees required under the be direct—purchased directly from out content, format, and size and style of Department of Labor’s notice-posting of state—or indirect—purchased from type. In addition, employers may use rule, 29 CFR part 471. sellers within the state that purchased commercial services to provide the them from out-of-state sellers. employee notice poster consolidated § 104.204 What entities are not subject to (2) There are other standards for onto one poster with other Federally this part? miscellaneous categories of employers. mandated labor and employment (a) The following entities are These standards are based on the notices, so long as the consolidation excluded from the definition of employer’s gross annual volume of does not alter the size, content, format, ‘‘employer’’ under the National Labor business unless stated otherwise. These or size and style of type of the poster Relations Act and are not subject to the standards are listed in the Table to this provided by the Board. requirements of this part: section.

TABLE TO § 104.204

Employer category Jurisdictional standard

Amusement industry ...... $500,000. Apartment houses, condominiums, cooperatives ...... $500,000. Architects ...... Nonretail standard.

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TABLE TO § 104.204—Continued

Employer category Jurisdictional standard

Art museums, cultural centers, libraries ...... $1 million. Bandleaders ...... Retail/nonretail (depends on customer). Cemeteries ...... $500,000. Colleges, universities, other private schools ...... $1 million. Communications (radio, TV, cable, telephone, telegraph) ...... $100,000. Credit unions ...... Either retail or nonretail standard. Day care centers ...... $250,000. Gaming industry ...... $500,000. Health care institutions: Nursing homes, visiting nurses associations ...... $100,000. Hospitals, blood banks, other health care facilities (including doctors’ and dentists’ offices) ..... $250,000. Hotels and motels ...... $500,000. Instrumentalities of interstate commerce ...... $50,000. Labor organizations (as employers) ...... Nonretail standard. Law firms; legal service organizations ...... $250,000. Newspapers (with interstate contacts) ...... $200,000. Nonprofit charitable institutions ...... Depends on the entity’s substantive pur- pose. 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 misconduct. This Notice gives you general during non-work time, in non-work areas, under more than one category, the information about your rights, and about the such as parking lots or break rooms. • Board will assert jurisdiction if the obligations of employers and unions under Question you about your union support employer meets the jurisdictional the NLRA. Contact the National Labor or activities in a manner that discourages you from engaging in that activity. standard of any of those categories. Relations Board (NLRB), the Federal agency that investigates and resolves complaints • Fire, demote, or transfer you, or reduce (4) There are a few employer your hours or change your shift, or otherwise categories without specific under the NLRA, using the contact information supplied below, if you have any take adverse action against you, or threaten jurisdictional standards: questions about specific rights that may to take any of these actions, because you join (i) Enterprises whose operations have apply in your particular workplace. or support a union, or because you engage in a substantial effect on national defense ‘‘Under the NLRA, you have the right to: concerted activity for mutual aid and or that receive large amounts of Federal • Organize a union to negotiate with your protection, or because you choose not to funds engage in any such activity. employer concerning your wages, hours, and • (ii) Enterprises in the District of other terms and conditions of employment. Threaten to close your workplace if • workers choose a union to represent them. Columbia Form, join or assist a union. • (iii) Financial information • Bargain collectively through Promise or grant promotions, pay raises, or other benefits to discourage or encourage organizations and accounting firms representatives of employees’ own choosing union support. (iv) Professional sports for a contract with your employer setting • Prohibit you from wearing union hats, your wages, benefits, hours, and other (v) Stock brokerage firms buttons, t-shirts, and pins in the workplace working conditions. (vi) U. S. Postal Service except under special circumstances. • Discuss your wages and benefits and (5) A more complete discussion of the • Spy on or videotape peaceful union Board’s jurisdictional standards may be other terms and conditions of employment or activities and gatherings or pretend to do so. found in An Outline of Law and union organizing with your co-workers or a ‘‘Under the NLRA, it is illegal for a union union. Procedure in Representation Cases, • or for the union that represents you in Chapter 1, found on the Board’s Web Take action with one or more co-workers bargaining with your employer to: site, http://www.nlrb.gov. to improve your working conditions by, • Threaten or coerce you in order to gain among other means, raising work-related (e) This part does not apply to the your support for the union. complaints directly with your employer or • United States Postal Service. Refuse to process a grievance because with a government agency, and seeking help you have criticized union officials or because Appendix to Subpart A—Text of from a union. you are not a member of the union. • Employee Notice Strike and picket, depending on the • Use or maintain discriminatory purpose or means of the strike or the standards or procedures in making job ‘‘EMPLOYEE RIGHTS UNDER THE picketing. referrals from a hiring hall. NATIONAL LABOR RELATIONS ACT • Choose not to do any of these activities, • Cause or attempt to cause an employer The National Labor Relations Act (NLRA) including joining or remaining a member of to discriminate against you because of your guarantees the right of employees to organize a union. union-related activity. and bargain collectively with their ‘‘Under the NLRA, it is illegal for your • Take adverse action against you because employers, and to engage in other protected employer to: you have not joined or do not support the concerted activity or to refrain from engaging • Prohibit you from talking about or union. in any of the above activity. Employees soliciting for a union during non-work time, ‘‘If you and your co-workers select a union covered by the NLRA* are protected from such as before or after work or during break to act as your collective bargaining certain types of employer and union times; or from distributing union literature representative, your employer and the union

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are required to bargain in good faith in a practices, and for remedying conduct § 104.213 What remedies are available to genuine effort to reach a written, binding that the Board finds to be unlawful. See cure a failure to post the employee notice? agreement setting your terms and conditions NLRA Sections 10–11, 29 U.S.C. 160– (a) If the Board finds that the of employment. The union is required to respondent employer has failed to post fairly represent you in bargaining and 61, and 29 CFR part 102, subpart B. enforcing the agreement. the required employee notices as § 104.211 What are the procedures for alleged, the respondent will be ordered ‘‘Illegal conduct will not be permitted. If filing a charge? you believe your rights or the rights of others to cease and desist from the unlawful have been violated, you should contact the (a) Filing charges. Any person (other conduct and post the required employee NLRB promptly to protect your rights, than Board personnel) may file a charge notice, as well as a remedial notice. In generally within six months of the unlawful with the Board alleging that an some instances additional remedies may activity. You may inquire about possible employer has failed to post the be appropriately invoked in keeping violations without your employer or anyone employee notice as required by this with the Board’s remedial authority. else being informed of the inquiry. Charges (b) Any employer that threatens or may be filed by any person and need not be part. A charge should be filed with the filed by the employee directly affected by the Regional Director of the Region in retaliates against an employee for filing violation. The NLRB may order an employer which the alleged failure to post the charges or testifying at a hearing to rehire a worker fired in violation of the required notice is occurring. concerning alleged violations of the law and to pay lost wages and benefits, and (b) Contents of charges. The charge notice-posting requirement may be may order an employer or union to cease found to have committed an unfair labor violating the law. Employees should seek must be in writing and signed, and must be sworn to before a Board agent, notary practice. See NLRA Section 8(a)(1) and assistance from the nearest regional NLRB 8(a)(4), 29 U.S.C. 158(a)(1), (4). office, which can be found on the Agency’s public, or other person authorized to Web site: http://www.nlrb.gov. administer oaths or take § 104.214 How might other Board You can also contact the NLRB by calling acknowledgements, or contain a proceedings be affected by failure to post toll-free: 1–866–667–NLRB (6572) or (TTY) declaration by the person signing it, the employee notice? 1–866–315–NLRB (1–866–315–6572) for under penalty of perjury, that its (a) Tolling of statute of limitations. hearing impaired. contents are true and correct. The When an employee files an unfair labor If you do not speak or understand English well, you may obtain a translation of this charge must include: practice charge, the Board may find it notice from the NLRB’s Web site or by calling (1) The charging party’s full name and appropriate to excuse the employee the toll-free numbers listed above. address; from the requirement that charges be ‘‘*The National Labor Relations Act covers (2) If the charge is filed by a union, filed within six months after the most private-sector employers. Excluded the full name and address of any occurrence of the allegedly unlawful from coverage under the NLRA are public- conduct if the employer has failed to sector employees, agricultural and domestic national or international union of which it is an affiliate or constituent unit; post the required employee notice workers, independent contractors, workers unless the employee has received actual employed by a parent or spouse, employees (3) The full name and address of the of air and rail carriers covered by the Railway or constructive notice that the conduct employer alleged to have violated this complained of is unlawful. See NLRA Labor Act, and supervisors (although part; and supervisors that have been discriminated Section 10(b), 29 U.S.C. 160(b). against for refusing to violate the NLRA may (4) A clear and concise statement of (b) Noncompliance as evidence of be covered). the facts constituting the alleged unfair unlawful motive. The Board may ‘‘This is an official Government Notice and labor practice. consider a knowing and willful refusal must not be defaced by anyone.’’ to comply with the requirement to post § 104.212 What are the procedures to be the employee notice as evidence of Subpart B—General Enforcement and followed when a charge is filed alleging that unlawful motive in a case in which Complaint Procedures an employer has failed to post the required employee notice? motive is an issue. § 104.210 How will the Board determine whether an employer is in compliance with (a) When a charge is filed with the Subpart C—Ancillary Matters this part? Board under this section, the Regional Director will investigate the allegations § 104.220 What other provisions apply to The Board has determined that this part? employees must be aware of their NLRA of the charge. If it appears that the allegations are true, the Regional (a) The regulations in this part do not rights in order to exercise those rights modify or affect the interpretation of effectively. Employers subject to this Director will make reasonable efforts to persuade the respondent employer to any other NLRB regulations or policy. rule are required to post the employee (b)(1) This subpart does not impair or notice to inform employees of their post the required employee notice expeditiously. If the employer does so, otherwise affect: rights. Failure to post the employee (i) Authority granted by law to a the Board expects that there will rarely notice may be found to interfere with, department, agency, or the head thereof; be a need for further administrative restrain, or coerce employees in the or exercise of the rights guaranteed by proceedings. (ii) Functions of the Director of the NLRA Section 7, 29 U.S.C. 157, in (b) If an alleged violation cannot be Office of Management and Budget violation of NLRA Section 8(a)(1), 29 resolved informally, the Regional relating to budgetary, administrative, or U.S.C. 158(a)(1). Director may issue a formal complaint legislative proposals. Normally, the Board will determine against the respondent employer, (2) This subpart must be implemented whether an employer is in compliance alleging a violation of the notice-posting consistent with applicable law and when a person files an unfair labor requirement and scheduling a hearing subject to the availability of practice charge alleging that the before an administrative law judge. appropriations. employer has failed to post the After a complaint issues, the matter will (c) This part creates no right or employee notice required under this be adjudicated in keeping with the benefit, substantive or procedural, part. Filing a charge sets in motion the Board’s customary procedures. See enforceable at law or in equity by any Board’s procedures for investigating and NLRA Sections 10 and 11, 29 U.S.C. party against the United States, its adjudicating alleged unfair labor 160, 161; 29 CFR part 102, subpart B. departments, agencies, or entities, its

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officers, employees, or agents, or any Signed in Washington, DC, August 22, other person. 2011. Wilma B. Liebman, Chairman. [FR Doc. 2011–21724 Filed 8–25–11; 8:45 am] BILLING CODE 7545–01–P

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