[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80410-80420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32019]
[[Page 80410]]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 104
RIN 3142--AA07
Proposed Rules Governing Notification of Employee Rights Under
the National Labor Relations Act
AGENCY: National Labor Relations Board.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: This Notice of Proposed Rulemaking (NPRM) proposes a
regulation requiring employers, including labor organizations in their
capacity as employers, subject to the National Labor Relations Act
(NLRA) to post notices informing their employees of their rights as
employees under the NLRA. The National Labor Relations Board (Board)
believes that many employees protected by the NLRA are unaware of their
rights under the statute. The intended effects of this action are to
increase knowledge of the NLRA among employees, to better enable the
exercise of rights under the statute, and to promote statutory
compliance by employers and unions.
The proposed rule establishes the size, form, and content of the
notice, and sets forth provisions regarding sanctions and remedies that
may be imposed if an employer fails to comply with its obligations
under the rule.
DATES: Comments regarding this proposed rule must be received by the
Board on or before February 22, 2011. Any comments received after the
comment period closes will be considered only to the extent feasible.
ADDRESSES: You may submit comments, identified by 3142-AA07, only by
the following methods:
Internet--Federal eRulemaking Portal. Electronic comments may be
submitted through http://www.regulations.gov. To locate the proposed
rule, search ``documents open for comment'' and use key words such as
``National Labor Relations Board'' or ``Notification of Employee Rights
under the National Labor Relations Act'' to find documents accepting
comments. Follow the instructions for submitting comments.
Delivery--Comments should be sent to: Lester A. Heltzer, Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW.,
Washington, DC 20570. Because of security precautions, the Board
continues to experience delays in U.S. mail delivery. You should take
this into consideration when preparing to meet the deadline for
submitting comments. The Board encourages electronic filing. The Board
recommends that you confirm receipt of your delivered comments by
contacting (202) 273-1067 (this is not a toll-free number). Individuals
with hearing impairments may call 1-866-315-6572 (TTY/TDD).
Only comments submitted through http://www.regulations.gov, hand
delivered, or mailed will be accepted; ex parte communications received
by the Board will be made part of the rulemaking record and will be
treated as comments only insofar as appropriate. Comments will be
available for public inspection at http://www.regulations.gov and
during normal business hours (8:30 a.m. to 5 p.m. EST) at the above
address.
The Board will post all comments received on http://www.regulations.gov without making any change to the comments,
including any personal information provided. The http://www.regulations.gov Web site is the Federal eRulemaking portal, and all
comments posted there are available and accessible to the public. The
Board cautions commenters not to include their personal information
such as Social Security numbers, personal addresses, telephone numbers,
and e-mail addresses in their comments, as such submitted information
will become viewable by the public via the http://www.regulations.gov
Web site. It is the commenter's responsibility to safeguard his or her
information. Comments submitted through http://www.regulations.gov will
not include the commenter's e-mail address unless the commenter chooses
to include that information as part of his or her comment.
FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW.,
Washington, DC 20570, (202) 273-1067 (this is not a toll-free number),
1-866-315-6572 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The Proposed Rule is organized as follows:
I. Background--briefly describes the development of the Proposed
Rule
II. Authority--cites the legal authority supporting the Proposed
Rule
III. Overview of the Rule--outlines the proposed regulatory text
IV. Dissenting View of Member Brian E. Hayes
V. Regulatory Procedures--sets forth the applicable regulatory
requirements and requests comments on specific issues
I. Background
The NLRA, enacted in 1935, is the Federal statute that regulates
most private sector labor-management relations in the United States.\1\
Section 7 of the NLRA, 29 U.S.C 157, guarantees that
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\1\ Labor-management relations in the railroad and airline
industries are governed by the Railway Labor Act, 45 U.S.C. 151 et
seq.
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
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refrain from any or all such activities[.]
In Section 1, 29 U.S.C. 151, Congress explained why it was
necessary for those rights to be protected:
The denial by some employers of the right of employees to
organize and the refusal by some employers to accept the procedure
of collective bargaining lead to strikes and other forms of
industrial strife or unrest, which have the intent or the necessary
effect of burdening or obstructing commerce[.] * * *
* * * * *
Experience has proved that protection by law of the right of
employees to organize and bargain collectively safeguards commerce
from injury, impairment, or interruption, and promotes the flow of
commerce by removing certain recognized sources of industrial strife
and unrest, by encouraging practices fundamental to the friendly
adjustment of industrial disputes arising out of differences as to
wages, hours, or other working conditions, and by restoring equality
of bargaining power between employers and employees.
* * * * *
It is declared to be the policy of the United States to
eliminate the causes of certain substantial obstructions to the free
flow of commerce and to mitigate and eliminate these obstructions
when they have occurred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by workers of
full freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or other
mutual aid or protection.
Thus, Congress plainly stated that, in its judgment, protecting the
rights of employees to form and join unions and to engage in collective
bargaining would benefit not only the employees themselves, but the
nation as a whole. The Board was established to ensure that employers
and, later, unions respect the exercise of employees' rights under the
NLRA.\2\
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\2\ The original NLRA did not include restrictions on the
actions of unions; those were added in the Labor-Management
Relations (Taft-Hartley) Act of 1947, 29 U.S.C. 141 et seq., Title
I.
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For employees to exercise their NLRA rights, however, they must
know that
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those rights exist. There is reason to think that most do not. As one
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commentator put it,
American workers are largely ignorant of their rights under the
NLRA, and this ignorance stands as an obstacle to the effective
exercise of such rights. For example, during union organizing
campaigns, employees' ignorance of the law hinders their ability to
assess employer anti-union propaganda, thus diluting their right to
organize. In the non-union setting, employees' ignorance leads to
the underutilization of legitimate workplace protests, of the
voicing of group grievances, and of requests for outside help from
government agencies or other third parties. In sum, lack of notice
of their rights disempowers employees.
Peter D. DeChiara, ``The Right to Know: An Argument for Informing
Employees of Their Rights under the National Labor Relations Act,'' 32
Harv. J. on Legis. 431, 433-434 (1995) (footnotes omitted).\3\
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\3\ See also Charles J. Morris, ``Renaissance at the NLRB--
Opportunity and Prospect for Non-Legislative Procedural Reform at
the Labor Board,'' 23 Stetson L. Rev. 101, 107 (1993) (``Most
American employees either have never heard of the NLRB or they do
not know what it does, and very few know how to initiate Board
action.''); Morris, ``NLRB Protection in the Nonunion Workplace: A
Glimpse at a General Theory of Section 7 Conduct, 137 U. Pa. L. Rev.
1673, 1675-1676 (1989) (commenting on the widespread ignorance of
NLRA rights on the part of nonunion employees).
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There are any number of reasons why such a knowledge gap could
exist. The overwhelming majority of private sector employees are not
represented by unions, and thus lack an important source of information
about NLRA rights.\4\ Immigrants, who comprise an increasing proportion
of the nation's work force, are unlikely to be familiar with their
workplace rights, including their rights under the NLRA. Several
studies have suggested that high school students, many of whom are
about to enter the labor force, are uninformed about labor law and
labor relations. See DeChiara, above, at 436 and fn. 28 (citing
studies).
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\4\ In 2009, only 8 percent of non-agricultural private sector
employees were represented by unions. U.S. Department of Labor,
Bureau of Labor Statistics, News Release USDL-10-0069, Table 3
(January 22, 2010). Source: Department of Commerce, Bureau of the
Census, Current Population Survey.
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If employees are largely unaware of their NLRA rights, however, one
reason surely is that, except in very limited circumstances, no one is
required to inform them of those rights.\5\ The NLRA is almost unique
among major Federal labor laws in not including an express statutory
provision requiring employers routinely to post notices at their
workplaces informing employees of their statutory rights. Such postings
are required under the Fair Labor Standards Act,\6\ Title VII of the
Civil Rights Act of 1964,\7\ the Age Discrimination in Employment
Act,\8\ the Occupational Safety and Health Act,\9\ the Americans with
Disabilities Act,\10\ the Family Medical Leave Act,\11\ the Uniformed
Service Employment and Reemployment Rights Act,\12\ the Railway Labor
Act,\13\ the Employee Polygraph Protection Act,\14\ the Migrant and
Seasonal Agricultural Workers Protection Act,\15\ and other Federal
statutes.
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\5\ The Board requires that employees be notified of their NLRA
rights in only the following narrow circumstances: (1) For the three
working days before a Board-conducted representation election, the
employer is required to post a notice of election including a brief
description of employee rights; see 29 CFR 103.20. (2) When an
employer or a union has been found to have violated employee rights
under the NLRA, it is required to post a notice containing a brief
summary of those rights. (3) Before a union may seek to obligate
newly hired nonmember employees to pay dues and fees under a union-
security clause, it must inform them of their right under NLRB v.
General Motors, 373 U.S. 734 (1963), and Communications Workers v.
Beck, 487 U.S. 735 (1988), to be or remain nonmembers and that
nonmembers have the right to object to paying for union activities
unrelated to the union's duties as the bargaining representative and
to obtain a reduction in dues and fees for such activities.
California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub
nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied
sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The same notice must
also be given to union members if they did not receive it when they
entered the bargaining unit. Paperworkers Local 1033 (Weyerhaeuser
Paper Co.), 320 NLRB 349, 350 (1995), rev'd. on other grounds sub
nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated sub
nom. United Paperworkers Intern. Union v. Buzenius, 525 U.S. 979
(1998).
\6\ 29 U.S.C. 211 (implementing regulation 29 CFR 516.4).
\7\ 42 U.S.C. 2000e-10(a).
\8\ 29 U.S.C. 627.
\9\ 29 U.S.C. 651, 657(c).
\10\ 42 U.S.C. 12101, 12115.
\11\ 29 U.S.C. 2601, 2619(a).
\12\ 38 U.S.C. 4334.
\13\ 45 U.S.C. 152, Eighth.
\14\ 29 U.S.C. 2003.
\15\ 29 U.S.C. 1821
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Thus, the NLRA stands out as an exception to the widespread notice-
posting practice that has long been common in the workplace, even
though it is the basic Federal labor law protecting private-sector
employees who act together to address terms and conditions of
employment. ``This absence of a general notice requirement under the
NLRA is remarkable given the significance of the Act as the cornerstone
of private-sector labor law in this country.'' See DeChiara, ``The
Right to Know,'' above at 433.
Several efforts have been made to address this anomaly. In 1993,
Charles J. Morris \16\ petitioned the Board to issue a broad rule
requiring employers and unions to post notices advising employees of
their rights and duties under the NLRA and of addresses and telephone
numbers where employees can contact the Board for information and
assistance. In 1998, then-California Governor Pete Wilson petitioned
the Board to require employers to inform employees, by either mailed or
posted notices, of the rights of nonmembers under Communications
Workers v. Beck.\17\ Most recently, on January 30, 2009, President
Obama issued Executive Order 13496, requiring Federal contractors and
subcontractors to include in their Government contracts specific
provisions requiring them to post notices of employees' NLRA rights. On
May 20, 2010, the Department of Labor issued a Final Rule implementing
the order effective June 21, 2010. 75 FR 28368, 29 CFR part 471. Both
of the petitions and President Obama's order stressed the need for
employees to be informed of their NLRA rights.
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\16\ Professor Emeritus of Law, Southern Methodist University.
\17\ See fn. 5 above. In 1992, President George H.W. Bush issued
Executive Order 12800, requiring unionized Federal contractors to
post notices informing employees of their rights under General
Motors and Beck. In 1993, President Clinton revoked that order. See
E.O.12836. In 2001 President George W. Bush issued Executive Order
13201 containing requirements similar to those in Executive Order
12800. On January 30, 2009, President Obama revoked that order. See
E.O. 13496, Section 13.
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After due consideration, the Board now proposes to require that
employees of all employers subject to the NLRA be informed of their
NLRA rights, as they are of other rights at the workplace. Informing
employees of their statutory rights is central to advancing the NLRA's
promise of ``full freedom of association, self-organization, and
designation of representatives of their own choosing.'' NLRA Section 1,
29 U.S.C. 151. It is fundamental to employees' exercise of their rights
that the employees know both their basic rights and where they can go
to seek help in understanding those rights. Notice of the right of
self-organization, to form, join, or assist labor organizations, to
bargain collectively, to engage in other concerted activities, and to
refrain from such activities, and information pertaining to the Board's
role in protecting statutory rights serves the public interest.
The workplace itself is the most appropriate place for
communicating with employees about their basic statutory rights as
employees. See Eastex, Inc v. NLRB, 437 U.S. 556, 574 (1978). Workplace
posting informs
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employers, as well as employees, of the employees' rights. Thus, some
employers may be less likely to violate their employees' NLRA rights
once they know what those rights are; others may be dissuaded from
violations by the knowledge that employees know their rights and may be
less likely to acquiesce if their rights are violated. In any event, it
seems plausible that ``employees who see the notice, instead of
quitting or suffering in silence, would be more likely to exercise
their right to act together to improve conditions such as low pay,
undesirable work schedules, or uncomfortable or dangerous conditions in
the workplace.'' DeChiara, The Right to Know, above, at 462 (footnotes
omitted). Indeed, as the New York Times reported with respect to a
successful Supreme Court litigant:
One thing that inspired Ms. White in her struggle, curiously,
was the bland, government-mandated flier posted by every employer,
the one that promises a workplace free of discrimination on the
basis of race, creed or sex. ``I can always visualize that,'' she
said. ``But I never thought it would happen to me.''
Shaila Dewan, Forklift Driver's Stand Leads to Broad Rule Protecting
Workers Who Fear Retaliation, New York Times (June 24, 2006) (quoting
plaintiff in Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53
(2006)).
For the foregoing reasons, the Board proposes a new rule requiring
all employers subject to the NLRA to post a copy of a notice advising
employees of their rights under the NLRA and providing information
pertaining to the enforcement of those rights. As explained below, the
burden of compliance will be minimal--the notices will be made
available by the Board (both electronically and in hard copy), and
employers need only post the notices in places where they customarily
post notices to employees; there are no reporting or recordkeeping
requirements.
II. Authority
Section 6 of the NLRA, 29 U.S.C. 156, provides that ``The Board
shall have authority from time to time to make, amend, and rescind, in
the manner prescribed by the Administrative Procedure Act [5 U.S.C.
553], such rules and regulations as may be necessary to carry out the
provisions of this Act.'' The Board interprets Section 6 as authorizing
the proposed rule, and specifically invites comments on this issue.
III. Overview of the Rule
If adopted, the Board's proposed rule, which requires employers
subject to the NLRA to post notices of employee rights under the NLRA,
will be set forth in Chapter 1, Part 104 of Volume 29 of the Code of
Federal Regulations (CFR). Subpart A of the proposed rule sets out
definitions; prescribes the size, form, and content of the employee
notice; and lists the categories of employers that are not covered by
the proposed rule. Subpart B sets out standards and procedures related
to allegations of noncompliance and enforcement of the proposed rule.
The discussion below is organized in the same manner and explains the
Board's reasoning in adopting the standards and procedures contained in
the regulatory text, which follows. The Board invites comments on any
issues addressed by the proposals in this rulemaking.
Subpart A--Definitions, Requirements for Employee Notice, and
Exceptions From Coverage Definitions
For the most part, the definitions proposed in this rule are taken
from those appearing in Section 2 of the NLRA, 29 U.S.C. 152. The Board
invites comments regarding the definitions proposed in Sec. 104.201
below.
Requirements for Employee Notice
Content requirements. The proposed notice contains a summary of
employee rights established under the NLRA. The Board believes that
requiring notice of employee rights effectuates the purposes of the
NLRA. Section 104.202 of the proposed rule requires employers subject
to the NLRA to post and maintain the notice in conspicuous places,
including all places where notices to employees are customarily posted,
and to take reasonable steps to ensure that the notices are not
altered, defaced, or covered by any other material.
In arriving at the content of the notice of employee rights, the
Board is proposing to adopt the language of the Department of Labor's
final rule requiring Federal contractors to post notices of employees'
NLRA rights. 29 CFR part 471. The Board tentatively agrees with the
Department of Labor that neither quoting the statement of employee
rights contained in Section 7 of the NLRA nor briefly summarizing those
rights in the notice would be likely to effectively inform employees of
their rights.\18\ Rather, the language of the notice should include a
more detailed description of employee rights derived from Board and
court decisions implementing those rights.\19\ The Board also sees
merit in the Department of Labor's judgment that including in the
notice examples, again derived from Board and court decisions, of
conduct that violates the NLRA will assist employees in understanding
their rights. The Board has carefully reviewed the content of the
notice required under the Department of Labor's final rule, which was
modified in response to comments from numerous sources,\20\ and has
tentatively concluded that that notice explains employee rights
accurately and effectively without going into excessive or confusing
detail. The Board therefore finds it unnecessary, for purposes of this
proposed rulemaking, to modify the language of the notice in the
Department of Labor's final rule. Because the notice of employee rights
would be the same under the Board's proposed rule as under the
Department of Labor's rule, Federal contractors that have posted the
Department of Labor's required notice would have complied with the
Board's rule and, so long as that notice is posted, would not have to
post a second notice.
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\18\ Section 7 of the NLRA states, very generally, that
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining of
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities[.]
29 U.S.C. 157.
\19\ The pre-election notices and remedial notices that the
Board requires to be posted in other contexts contain only summary
descriptions of employee rights. In the pre-election context,
however, at least one union is on the scene and presumably will
enlighten employees about their NLRA rights to some extent. And the
purpose of remedial notices is chiefly to inform employees of what
employers and/or unions have done to violate their NLRA rights, and
less to inform them of their rights in general.
\20\ See 75 FR 28372-28381.
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The Board also tentatively agrees with the Department of Labor that
it is unnecessary for the notice to include specifically the right of
employees who are not union members and who are covered by a
contractual union-security clause to refuse to pay union dues and fees
for any purpose other than collective bargaining, contract
administration, or grievance adjustment. See Communications Workers v.
Beck, 487 U.S. 735 (1988).\21\ In the relatively small number of
workplaces where union-security provisions exist, unions that seek to
obligate employees to pay dues and fees under those provisions are
already required to inform those employees of their Beck rights. See
footnote 5 above. In other words, existing law already requires notice
of this particular set of rights to all
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employees who may exercise them. Moreover, there are too few employees
who might benefit from such specific notice of this one set of rights
to warrant its inclusion in the general notice. Only about 8 percent of
all private sector employees are currently represented by unions,\22\
and by no means are all of them subject to union-security clauses.
Indeed, in the 22 so-called ``right to work'' states that prohibit
union-security arrangements, no employees are covered by union-security
clauses. Because Beck does not even apply to the overwhelming majority
of employees in today's private sector workplace, and because unions
already are obliged to inform the employees to whom it does apply of
their Beck rights, the Board does not propose to include this
notification in the notice of employee rights.
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\21\ This issue is the subject of the petition filed by former
Governor Pete Wilson; see earlier discussion, above.
\22\ See fn. 4, above.
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The Board invites comment on all of the issues raised by the
statement of NLRA rights proposed for inclusion in the required notice
to employees. In particular, the Board requests comments on whether the
notice contains sufficient information about employee rights, whether
it effectively conveys that information to employees, and whether it
achieves the desired balance between providing an overview of employee
rights and limiting unnecessary and distracting information.
The proposed Appendix to Subpart A includes Board contact
information and basic enforcement procedures to enable employees to
learn more about their NLRA rights and how to enforce them. Thus, the
required notice confirms that unlawful conduct will not be permitted,
provides information about the Board and about filing a charge with the
Board, and states that the Board will prosecute violators of the NLRA.
The notice also indicates that there is a 6-month statute of
limitations for filing charges with the Board alleging violations and
provides Board contact information. The Board invites suggested
additions or deletions to these provisions that would improve the
content of the notice of employee rights.
Size and form requirements. The Board proposes that the notice to
employees shall be at least 11 inches by 17 inches in size, and in such
colors and type size and style as the Board shall prescribe. Employers
that choose to print the notice after downloading it from the Board's
Web site must print in color, and the printed notice shall be at least
11 inches by 17 inches in size.
Posting requirements. Proposed Sec. 104.202(d) requires all
covered employers to post the employee notice physically ``in
conspicuous places, including all places where notices to employees are
customarily posted.'' Employers must take steps to ensure that the
notice is not altered, defaced, or covered with other material.
Proposed Sec. 104.202(e) states that the Board will print the notice
poster and provide copies to employers on request. It also states that
employers may download copies of the poster from the Board's Web site,
www.nlrb.gov, for their use. It further provides that employers may
reproduce exact duplicates of the poster supplied by the Board, and
that they may also use commercial poster services to provide the
employee notice consolidated onto one poster with other Federally
mandated labor and employment notices, as long as consolidation does
not alter the size, color, or content of the poster provided by the
Board. Finally, employers that have significant numbers of employees
who are not proficient in English will be required to post notices of
employee rights in the language or languages spoken by significant
numbers of those employees. The Board will make available posters
containing the necessary translations.
In addition to requiring physical posting of paper notices,
proposed Sec. 104.202(f) requires that notices be distributed
electronically, such as by e-mail, posting on an intranet or an
internet site, and/or other electronic means, if the employer
customarily communicates with its employees by such means.\23\ An
employer that customarily posts notices to its employees on an intranet
or internet site must display the required employee notice on such a
site prominently--i.e., no less prominently than other notices to
employees. The Board proposes to give employers two options to satisfy
this requirement. An employer may either download the notice itself and
post it in the manner described above, or post, in the same manner, a
link to the Board's Web site that contains the full text of the
required employee notice. In the latter case, the link must contain the
prescribed introductory language from the poster, which appears in
proposed Appendix to Subpart A, below. An employer that customarily
communicates with its employees by e-mail will satisfy the electronic
posting requirement by sending its employees an e-mail message
containing the link described above.
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\23\ See J. Picini Flooring, 356 NLRB No. 9, slip op. at 6
(2010).
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Where a significant number of an employer's employees are not
proficient in English, the employer must provide the required
electronic notice in the language the employees speak. This requirement
can be met either by downloading and posting, as required in Sec.
104.202(f), the translated version of the notice supplied by the Board,
or by prominently displaying, as required in Sec. 104.202(f), a link
to the Board's Web site that contains the full text of the poster in
the language the employees speak. The Board will provide translations
of that link.
The Board seeks comments on its proposed requirements for both
physical and electronic notice posting. In addition, the Board solicits
comments on whether it should prescribe standards regarding the size,
clarity, location, and brightness of the electronic link, including how
to prescribe electronic postings that are at least as large, clear, and
conspicuous as the employer's other postings.
Exceptions. The proposed rule applies only to employers that are
subject to the NLRA. Under NLRA Section 2(2), ``employer'' excludes the
United States government, any wholly owned government corporation, any
Federal Reserve Bank, any State or political subdivision, and any
person subject to the Railway Labor Act, 45 U.S.C. 151 et seq. 29
U.S.C. 152(2). Thus, under the proposed rule, those excluded entities
are not required to post the notice of employee rights. The proposed
rule also does not apply to entities that employ only individuals who
are not considered ``employees'' under the NLRA. See Subpart A, below;
29 U.S.C. 152(3). Finally, the proposed rule does not apply to entities
over which the Board has been found not to have jurisdiction, or over
which the Board has chosen through regulation or adjudication not to
assert jurisdiction.\24\
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\24\ The proposed rule excludes small businesses whose impact on
interstate commerce is de minimis or so slight that they do not meet
the Board's discretionary jurisdiction requirements. See generally
An Outline of Law and Procedure in Representation Cases, Chapter 1,
found on the Board's Web site, http://www.nlrb.gov, and cases cited
therein.
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Subpart B--Enforcement and Complaint Procedures
Subpart B of the proposed rule contains procedures for enforcement
of the employee notice-posting requirement and sanctions for
noncompliance. In crafting Subpart B, the Board was mindful of the need
to identify effective incentives for compliance. The Board gave careful
consideration to several alternative approaches to achieving the
highest degree of compliance with the rule's
[[Page 80414]]
notice-posting requirements. Those alternatives, not all of which are
mutually exclusive, are (1) finding the failure to post the required
notices to be an unfair labor practice; (2) tolling the statute of
limitations for filing unfair labor practice charges against employers
that fail to post the notices; (3) considering the willful failure to
post the notices as evidence of unlawful motive in unfair labor
practice cases; (4) voluntary compliance.
The Board has considered but tentatively rejected relying solely on
voluntary compliance. This option logically would appear to be the
least likely to be effective, and the Board's limited experience with
voluntary posting of notices of employee rights seems to confirm this.
When an election petition is filed, the Board's Regional Office sends
the employer Form NLRB-5492, Notice to Employees, together with a
leaflet containing significant ``Rights of Employees.'' See the Board's
Casehandling Manual, Part Two--Representation Proceedings, Section
11008.5, found on the Board's Web site, http://www.nlrb.gov. The
Regional Office also asks employers to post the notice of employee
rights in the workplace; however, the Board's experience suggests that
the notices are seldom posted. Therefore, the Board does not propose to
rely on voluntary compliance alone; but voluntary compliance, in
combination with either tolling the statute of limitations or finding a
knowing failure to post employee notices to be evidence of unlawful
motive, or both, may be a workable approach. (The Board did not
consider imposing monetary fines for noncompliance, because the Board
lacks the statutory authority to impose punitive remedies. See, e.g.,
Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-12 (1940).)
Accordingly, the Board proposes the following sanctions for failure
or refusal to post the required employee notices: (1) Finding the
failure to post the required notices to be an unfair labor practice;
(2) tolling the statute of limitations for filing unfair labor practice
charges against employers that fail to post the notices; and (3)
considering the knowing failure to post the notices as evidence of
unlawful motive in unfair labor practice cases. The Board invites
comments on any of the enforcement and procedural matters proposed in
Subpart B.
Noncompliance as an unfair labor practice. The proposed rule
requires employers to inform employees of their NLRA rights because the
Board believes that employees must know their rights in order to
exercise them effectively. Accordingly, the Board proposes to find that
an employer that fails or refuses to post the required notice of
employee rights violates Section 8(a)(1) of the NLRA, 29 U.S.C.
158(a)(1) by ``interfer[ing] with, restrain[ing], or coerc[ing]
employees in the exercise of the rights guaranteed in Section 7 (29
U.S.C. 157).''
The Board expects that most employers that fail to post the
required notice will do so simply because they are unaware of the rule,
and that when it is called to their attention, they will comply without
the need for formal administrative action or litigation. When that is
not the case, the Board's customary procedures for investigating and
adjudicating alleged unfair labor practices may be invoked. See NLRA
Sections 10 and 11, 29 U.S.C. 160, 161; 29 CFR part 102, subpart B.\25\
When the Board finds a violation, it will customarily order the
employer to cease and desist and to post the notice of employee rights
as well as a remedial notice.
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\25\ The Board's General Counsel has unreviewable discretion as
to whether to issue a complaint in an unfair labor practice
proceeding. This discretion includes dismissing any charge filed
against an employer who is not covered by the Board's jurisdictional
requirements.
---------------------------------------------------------------------------
Consistent with precedent, it will be unlawful for an employer to
threaten or retaliate against an employee for filing charges or
testifying in a Board proceeding involving an alleged violation of the
notice-posting requirement. NLRA Sections 8(a)(1), 8(a)(4), 29 U.S.C.
158(a)(1), (4); Romar Refuse Removal, 314 NLRB 658 (1994).
The Board also proposes the following options intended to induce
compliance with the notice-posting requirement, either in addition to
or instead of finding the failure to post to be an unfair labor
practice:
Tolling statute of limitations. Failure to post the notice of
employee rights may warrant tolling the 6-month statute of limitations
for filing unfair labor practice charges. NLRA Section 10(b) provides
in part that ``no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board[.]'' 29 U.S.C. 160(b). However, the 6-month
period does not begin to run until the charging party has actual or
constructive notice of the allegedly unlawful conduct. See, e.g., John
Morrell & Co., 304 NLRB 896, 899 (1991), review denied 998 F.2d 7 (DC
Cir. 1993) (table).
The same should be true when an employee, although aware of the
conduct in question, is excusably unaware that the conduct is unlawful.
As the U.S. Court of Appeals for the Third Circuit has observed in
another context, ``The [ADEA] posting requirement was undoubtedly
created because Congress recognized that the very persons protected by
the Act might be unaware of its existence.'' Bonham v. Dresser
Industries, 569 F.2d 187, 193 (1977), cert. denied 439 U.S. 821 (1978).
Because notices of employee rights are intended, in part, to advise
employees of the kinds of conduct that may violate their rights, courts
have repeatedly found in cases arising under other Federal employment
laws that the statutes of limitation for filing actions should be
tolled when employers fail to post required notices informing employees
of their rights, unless the employee has obtained knowledge of those
rights or is represented by counsel. See, e.g., Mercado v. Ritz-Carlton
San Juan Hotel, 410 F.3d 41, 47-48, 95 FEP Cases 1464 (1st Cir. 2005)
(Title VII); EEOC v. Kentucky State Police Dept., 80 F.3d 1086, 1096
(6th Cir. 1996), cert. denied 519 U.S. 963 (1996); Bonham, above, 569
F.2d at 93 (ADEA); Hammer v. Cardio Medical Products, Inc., 131 Fed.
Appx. 829, 831-832 (3d Cir. 2005) (Title VII and ADEA); Henchy v. City
of Absecon, 148 F. Supp. 2d 435, 439 (D. N.J. 2001); Kamens v. Summit
Stainless, Inc., 586 F. Supp. 324, 328 (E.D. Pa. 1984) (FLSA). (But see
Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 347 (10th Cir.
1982) (``the simple failure to post [Title VII and ADEA] notices,
without intent to actively mislead the plaintiff respecting the cause
of action, does not extend the time within which a claimant must file
his or her discrimination charge.'')) The same reasoning would appear
applicable to unfair labor practice allegations under the NLRA.
Accordingly, if an employer fails to post the required notice of
employee rights, the Board may find that the 6-month period for filing
charges does not begin to run until the notice is posted or the
employee filing the charge otherwise acquires actual or constructive
notice that the conduct in question may be unlawful. The Board invites
comments as to whether unions filing charges should be deemed to have
constructive knowledge of illegality.
Knowing noncompliance as evidence of unlawful motive. An employer
that is aware, or should be aware, of the requirement to post the
notice of employee rights and fails to do so is knowingly preventing
employees from learning of their NLRA rights. Therefore, when it is
adjudicating cases in which unlawful motive is an element of one or
more alleged violations, the Board may
[[Page 80415]]
consider knowing noncompliance with the posting requirement in
determining whether unlawful motive has been established.
Subpart C--Ancillary Matters
Several technical issues unrelated to those discussed in the two
previous subparts are set out in this subpart.
IV. Dissenting View of Member Brian E. Hayes
A majority of the current Board had decided to grant the rule-
making petitions herein prior to my confirmation as a Board Member. As
a consequence of this timing I did not participate in the decision to
grant the instant petitions, nor did I participate in the drafting of
the proposed rule. Had I done so, my decision would have been to deny
the instant petitions as I believe the Board lacks the statutory
authority to promulgate or enforce the type of rule which the petitions
contemplated and which the proposed rule makes explicit. Accordingly, I
dissent from the Board's actions today.
The instant proposed rule would impose a requirement that all
employers subject to the Board's jurisdiction post a notice of
employees' rights identical to that which the Department of Labor,
acting pursuant to clear authority under an Executive Order, has
recently required federal contractors to post. Going well beyond that
requirement, however, the proposed rule here would further impose
unfair labor practice liability for any failure to post a notice and
would also suspend the Section 10(b) limitations period for any unfair
labor practice charge against a noncompliant employer.
Public comment is invited on all aspects of the proposed rule and
its proposed enforcement. I believe such comment is plainly warranted
and should address the Board's authority to impose or enforce such a
rule. In my view, it is essential to have a broader basis for enacting
such a rule than the opinions of my colleagues and the treatises of the
party requesting rulemaking, Professor Charles Morris.
My colleagues acknowledge that the Act differs from several more
recent statutes that expressly require the posting of individual rights
notices. The absence of such express language in our Act is a strong
indicator, if not dispositive, that the Board lacks the authority to
impose such a requirement. In particular, I do not believe that the
language of Section 6 of the Act is sufficient statutory authority for
imposing such a notice requirement and sanctions for noncompliance. To
the contrary, Section 10 of the Act indicates to me that the Board
clearly lacks the authority to order affirmative notice-posting action
in the absence of an unfair labor practice charge filed by an outside
party. For that reason, without regard for whether a notice-posting
requirement would further the purposes of the Act if the Board had the
authority to impose it, I would have denied the petitions for
rulemaking.
Brian E. Hayes, Member
V. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et
seq., requires agencies promulgating proposed rules to prepare an
initial regulatory flexibility analysis and to develop alternatives
wherever possible, when drafting regulations that will have a
significant impact on a substantial number of small entities. The focus
of the RFA is to ensure that agencies ``review rules to assess and take
appropriate account of the potential impact on small businesses, small
governmental jurisdictions, and small organizations, as provided by the
[RFA].'' E.O. 13272, Sec. 1, 67 FR 53461 (``Proper Consideration of
Small Entities in Agency Rulemaking''). However, an agency is not
required to prepare an initial regulatory flexibility analysis for a
proposed rule if the Agency head certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. 5 U.S.C 605(b). Based on the analysis below, in
which the Board has estimated the financial burdens to employers
subject to the NLRA associated with complying with the requirements
contained in this final rule, the Board has certified to the Chief
Counsel for Advocacy of the Small Business Administration (``SBA'')
that this rule will not have a significant economic impact on a
substantial number of small entities.
The primary goal of the proposed rule is the notification to
employees of their rights with respect to collective bargaining and
other concerted activities protected by Section 7 of the NLRA. This
goal is achieved through the posting of notices by employers subject to
the NLRA of the rights of employees under the NLRA. The Board will make
the notices available at no cost to employers; there are no information
collection or reporting requirements.
The Board estimates that in order to comply with this rule, each
employer subject to the NLRA will spend a total of 2 hours during the
first year in which the rule is in effect. This includes 30 minutes for
the employer to learn where and how to post the required notices, 30
minutes to acquire the notices from the Board or its Web site, and 60
minutes to post them physically and electronically, depending on where
and how the employer customarily posts notices to employees. The Board
assumes that these activities will be performed by a professional or
business worker, who, according to Bureau of Labor Statistics data,
earned a total hourly wage of $31.02 in January 2009, including fringe
benefits. The Board then multiplied this figure by 2 hours to estimate
the average costs for employers to comply with this rule during the
first year in which the rule is in effect. Accordingly, this rule is
estimated to impose average costs of $62.04 per employer subject to the
NLRA (2 hours x $31.02) during the first year. These costs will
decrease dramatically in subsequent years because the only employers
affected will be those that have did not previously satisfy their
posting requirements or that have since expanded their facilities or
established new ones.
According to the United States Census Bureau, there were
approximately 6 million businesses with employees in 2007. Of those,
the SBA estimates that all but about 18,300 were small businesses with
fewer than 500 employees.\26\ This rule does not apply to employers who
do not meet the Board's jurisdictional requirements, but the Board does
not have the means to calculate the number of small businesses within
the Board's jurisdiction. Accordingly, the Board assumes for purposes
of this analysis that the great majority of the nearly 6 million small
businesses will be affected.
---------------------------------------------------------------------------
\26\ Source: SBA Office of Advocacy estimates based on data from
the U.S. Department of Commerce, Bureau of the Census, and trends
from the U.S. Department of Labor, Bureau of Labor Statistics,
Business Employment Dynamics.
---------------------------------------------------------------------------
Based on the foregoing, the Board concludes that that the proposed
rule will not have a significant economic impact on a substantial
number of small entities. The Regulatory Flexibility Act does not
define either ``significant economic impact'' or ``substantial'' as it
relates to the number of regulated entities. 5 U.S.C. 601. In the
absence of specific definitions, ``what is `significant' or
`substantial' will vary depending on the problem that needs to be
addressed, the rule's requirements, and the preliminary assessment of
the rule's impact.'' See A Guide for Government Agencies: How to Comply
with the Regulatory Flexibility Act, Office of Advocacy, U.S. Small
Business Administration at 17 (available at http://
[[Page 80416]]
www.sba.gov) (``SBA Guide''). As to economic impact, one important
indicator is the cost of compliance in relation to revenue of the
entity or the percentage of profits affected. SBA Guide, above, at 17.
Here, the Board has determined that the average cost of complying with
the notice-posting rule in the first year for all employers subject to
the NLRA will be $62.04. The Board concludes that this economic impact
on small employers is not significant.\27\ The Board assumes that the
number of small employers that will be affected by the proposed rule is
a substantial number within the meaning of 5 U.S.C. 601. However,
because the economic impact on those employers is minimal, the Board
concludes that, under 5 U.S.C. 605, the proposed rule will not have a
significant economic impact on any small employers.
---------------------------------------------------------------------------
\27\ In reaching this conclusion, the Board considered the
likelihood that employers who might otherwise be significantly
affected even by the low cost of compliance under this rule will not
meet the Board's jurisdictional requirements. Thus, those employers
will not be subject to this rule.
---------------------------------------------------------------------------
As stated above, the Board assumes that a substantial number of
small businesses will be required to comply with this proposed rule.
The Board has preliminarily considered and rejected alternatives that
would minimize the impact of the proposed rule, including a tiered
approach for small entities with only a few employees, concluding that
a tiered approach or an exemption for some small entities would
substantially undermine the purpose of the proposed rule because so
many employers would be exempt under the SBA definitions. Given the
very small estimated cost of compliance, it is possible that the burden
on a small business of determining whether it fell into a particular
tier might exceed the burden of compliance. Congress gave the Board
very broad jurisdiction, with no suggestion that it wanted to limit
coverage of any part of the Act to only larger employers. The Board
also believes that employees of small employers may well be those
workers most in need of a Board notice. Finally, the Board's
jurisdictional standards mean that very small employers will not be
covered by the proposed rule in any case. A summary of the Board's
discretionary jurisdictional standards appears in Sec. 104.204, below.
The Board invites the public to comment on the above certification.
Paperwork Reduction Act (PRA) 28
The proposed rule imposes certain minimal burdens associated with
the posting of the employee notice required by Sec. 104.202. As noted
in Sec. 104.202(e), the Board will make the notice available, and
employers will be permitted to post exact duplicate copies of the
notice. Under the regulations implementing the PRA, ``[t]he public
disclosure of information originally supplied by the Federal government
to [a] recipient for the purpose of disclosure to the public'' is not
considered a ``collection of information'' under the Act. See 5 CFR
1320.3(c)(2). Therefore, the posting requirement is not subject to the
PRA.
---------------------------------------------------------------------------
\28\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
The PRA does not cover the costs to the Federal government of
administering the regulations established by the proposed rule. The
regulations implementing the PRA define ``burden,'' in pertinent part,
as ``the total time, effort, or financial resources expended by persons
to generate, maintain, retain, or disclose or provide information to or
for a Federal agency.'' 5 CFR 1320.3(b)(1). The definition of
``person'' in the same regulations includes ``an individual,
partnership, association, corporation (including operations of
government-owned contractor-operated facilities), business trust, or
legal representative, an organized group of individuals, a State,
territorial, tribal, or local government or branch thereof, or a
political subdivision of a State, territory, tribal, or local
government or a branch of a political subdivision.'' 5 CFR 1320.3(k).
It does not include the Federal government or any branch, political
subdivision, or employee thereof. Therefore, the cost to the Federal
government of administering the proposed rule need not be considered.
Accordingly, this rule does not contain information collection
requirements that require approval by the Office of Management and
Budget under the PRA (44 U.S.C. 3507 et seq.). The Board invites the
public to comment on whether the proposed rule otherwise implicates the
PRA.
Request for Comments
The Board invites comments about the NPRM from interested parties,
including, employers, employees, employer organizations, unions, public
interest groups, and the public. Only comments submitted through http://www.regulations.gov, hand delivered, or mailed will be accepted. These
methods for submitting comments are intended to be exclusive. Any ex
parte communications received by the Board will be added to the public
rulemaking record.
List of Subjects in 29 CFR Part 104
Administrative practice and procedure, Employee rights, Labor
unions.
Text of Proposed Rule
A new part 104 is proposed to be added to 29 CFR chapter I to read
as follows:
PART 104--NOTIFICATION OF EMPLOYEE RIGHTS; OBLIGATIONS OF EMPLOYERS
Subpart A--Definitions, Requirements for Employee Notice, and
Exceptions and Exemptions
Sec.
104.201 What definitions apply to this part?
104.202 What employee notice must employers subject to the NLRA post
in the workplace?
104.203 Are Federal contractors covered under this part?
104.204 What entities are not subject to this part?
Appendix to Subpart A--Text of Employee Notice
Subpart B--General Enforcement and Complaint Procedures
104.210 How will the Board determine whether an employer is in
compliance with this part?
104.211 What are the procedures for filing a charge?
104.212 What are the procedures to be followed when a charge is
filed alleging that an employer has failed to post the required
employee notice?
104.213 What sanctions can be imposed for failure to post the
employee notice?
104.214 What other sanctions may be imposed for noncompliance?
Subpart C--Ancillary Matters
104.220 What other provisions apply to this part?
Authority: National Labor Relations Act (NLRA), Section 6, 29
U.S.C. 156; Administrative Procedure Act, 5 U.S.C. 553.
Subpart A--Definitions, Requirements for Employee Notice, and
Exceptions and Exemptions
Sec. 104.201 What definitions apply to this part?
Employee includes any employee, and is not limited to the employees
of a particular employer, unless the NLRA explicitly states otherwise.
The term includes anyone whose work has ceased because of, or in
connection with, any current labor dispute or because of any unfair
labor practice, and who has not obtained any other regular and
substantially equivalent employment. However, it does not include
agricultural laborers, supervisors, or independent contractors, or
anyone employed in the domestic service of any
[[Page 80417]]
family or person at his home, or by his parent or spouse, or by an
employer subject to the Railway Labor Act (45 U.S.C. 151 et seq.), or
by any other person who is not an employer as defined in the NLRA. 29
U.S.C. 152(3).
Employee notice means the notice set forth in the Appendix to
Subpart A of this part that employers subject to the NLRA must post
pursuant to this part.
Employer includes any person acting as an agent of an employer,
directly or indirectly. The term does not include the United States or
any wholly owned Government corporation, or any Federal Reserve Bank,
or any State or political subdivision thereof, or any person subject to
the Railway Labor Act, or any labor organization (other than when
acting as an employer), or anyone acting in the capacity of officer or
agent of such labor organization. 29 U.S.C. 152(2). Further, the term
``employer'' does not include entities over which the Board has been
found not to have jurisdiction, or over which the Board has chosen
through regulation or adjudication not to assert jurisdiction.
Labor organization means any organization of any kind, or any
agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work. 29 U.S.C.
152(5).
National Labor Relations Board (Board) means the National Labor
Relations Board provided for in section 3 of the National Labor
Relations Act, 29 U.S.C. 153. 29 U.S.C. 152(10).
Person includes one or more individuals, labor organizations,
partnerships, associations, corporations, legal representatives,
trustees, trustees in cases under title 11 of the United States Code,
or receivers. 29 U.S.C. 152(1).
Related rules, regulations, and orders, as used in Sec. 104.202,
means rules, regulations, and relevant orders issued by the Board
pursuant to this part.
Supervisor means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment. 29
U.S.C. 152(11).
Unfair labor practice means any unfair labor practice listed in
section 8 of the National Labor Relations Act, 29 U.S.C. 158. 29 U.S.C.
152(8).
Union means a labor organization as defined above.
Sec. 104.202 What employee notice must employers subject to the NLRA
post in the workplace?
(a) Posting of employee notice. All employers subject to the NLRA
must post notices to employees, in conspicuous places, informing them
of their NLRA rights, together with Board contact information and
information concerning basic enforcement procedures, in the language
set forth in the Appendix to Subpart A of this part.
(b) Size and form requirements. The notice to employees shall be at
least 11 inches by 17 inches in size, and in such colors and type size
and style as the Board shall prescribe. Employers that choose to print
the notice after downloading it from the Board's Web site must print in
color, and the printed notice shall be at least 11 inches by 17 inches
in size.
(c) Adaptation of language. The National Labor Relations Board may
find that an Act of Congress, clarification of existing law by the
courts or the Board, or other circumstances make modification of the
employee notice necessary to achieve the purposes of this part. In such
circumstances, the Board will promptly issue rules, regulations, or
orders as are needed to ensure that all future employee notices contain
appropriate language to achieve the purposes of this part.
(d) Physical posting of employee notice. The employee notice must
be posted in conspicuous places, including all places where notices to
employees are customarily posted. Where a significant portion of an
employer's workforce is not proficient in English, the employer must
provide the notice in the language employees speak. An employer must
take reasonable steps to ensure that the notice is not altered,
defaced, covered by any other material, or otherwise rendered
unreadable.
(e) Obtaining a poster with the employee notice. A poster with the
required employee notice, including a poster with the employee notice
translated into languages other than English, will be printed by the
Board, and may be obtained from the Board's office, 1099 14th Street,
NW., Washington, DC 20570, or from any of the Board's regional,
subregional, or resident offices. Addresses and telephone numbers of
those offices may be found on the Board's Web site at http://www.nlrb.gov. A copy of the poster in English and in languages other
than English may also be downloaded from the Board's Web site at http://www.nlrb.gov. Employers also may reproduce and use exact duplicate
copies of the Board's official poster. In addition, employers may use
commercial services to provide the employee notice poster consolidated
onto one poster with other Federally mandated labor and employment
notices, so long as the consolidation does not alter the size, color,
or content of the poster provided by the Board.
(f) Electronic posting of employee notice. (1) In addition to
posting the required notice physically, an employer must also
distribute the required notice electronically, such as by e-mail,
posting on an intranet or an internet site, and/or by any other
electronic means, if the employer customarily communicates with its
employees by such means. An employer that customarily posts notices to
employees on an intranet or internet site will satisfy the electronic
posting requirement by displaying prominently--i.e., no less
prominently than other notices to employees--on such a site either an
exact copy of the poster, downloaded from the Board's Web site, or a
link to the Board's Web site that contains the poster. The link to the
Board's Web site must read, ``Important Notice about Employee Rights to
Organize and Bargain Collectively with Their Employers,'' and must
contain the prescribed introductory language from the poster, which
appears in the Appendix to Subpart A of this part. An employer that
customarily communicates with its employees by e-mail will satisfy the
electronic notice posting requirement by sending employees an e-mail
message containing the link described above.
(2) Where a significant portion of an employer's workforce is not
proficient in English, the employer must provide the notice required in
paragraph (f)(1) of this section in the language the employees speak,
in the manner set forth in that paragraph. The Board will provide
translations of the link to the Board's Web site for any employer that
wishes to display the link on its Web site.
104.203 Are Federal contractors covered under this part?
Yes, Federal contractors are covered. However, contractors may
comply with the provisions of this part by posting the notices to
employees required under the Department of Labor's notice-posting rule,
29 CFR Part 471.
[[Page 80418]]
Sec. 104.204 What entities are not subject to this part?
(a) The following entities are excluded from the definition of
``employer'' under the National Labor Relations Act and are not subject
to the requirements of this part:
(1) The United States or any wholly owned Government corporation;
(2) Any Federal Reserve Bank;
(3) Any State or political subdivision thereof;
(4) Any person subject to the Railway Labor Act;
(5) Any labor organization (other than when acting as an employer);
or
(6) Anyone acting in the capacity of officer or agent of such labor
organization.
(b) In addition, employers employing exclusively workers who are
excluded from the definition of ``employee'' under Sec. 104.201 are
not covered by the requirements of this part.
(c) This part does not apply to entities over which the Board has
been found not to have jurisdiction, or over which the Board has chosen
through regulation or adjudication not to assert jurisdiction.
(d)(1) Finally, this part does not apply to entities whose impact
on interstate commerce, although more than de minimis, is so slight
that they do not meet the Board's discretionary jurisdiction standards.
The most commonly applicable standards are:
(i) The retail standard, which applies to employers in retail
businesses, including home construction. The Board will take
jurisdiction over any such employer that has a gross annual volume of
business of $500,000 or more.
(ii) The nonretail standard, which applies to most other employers.
It is based either on the amount of goods sold or services provided by
the employer out of state (called ``outflow'') or goods or services
purchased by the employer from out of state (called ``inflow''). The
Board will take jurisdiction over any employer with an annual inflow or
outflow of at least $50,000. Outflow can be either direct--to out-of-
state purchasers--or indirect--to purchasers that meet other
jurisdictional standards. Inflow can also be direct--purchased directly
from out of state--or indirect--purchased from sellers within the state
that purchased them from out-of-state sellers.
(2) There are other standards for miscellaneous categories of
employers. These standards are based on the employer's gross annual
volume of business unless stated otherwise. These standards are listed
in the Table to this section.
Table to Sec. 104.204
------------------------------------------------------------------------
Employer category Jurisdictional standard
------------------------------------------------------------------------
Amusement industry........... $500,000.
Apartment houses, $500,000.
condominiums, cooperatives.
Architects................... Nonretail standard.
Art museums, cultural $1 million.
centers, libraries.
Bandleaders.................. Retail/nonretail (depends on customer).
Cemeteries................... $500,000.
Colleges, universities, other $1 million.
private schools.
Communications (radio, TV, $100,000.
cable, telephone, telegraph).
Credit unions................ Either retail or nonretail standard.
Day care centers............. $250,000.
Gaming industry.............. $500,000.
Health care institutions:
Nursing homes, visiting $100,000.
nurses associations.
Hospitals, blood banks, $250,000.
other health care
facilities (including
doctors' and dentists'
offices).
Hotels and motels............ $500,000.
Instrumentalities of $50,000.
interstate commerce.
Labor organizations (as Nonretail standard.
employers).
Law firms; legal service $250,000.
organizations.
Newspapers (with interstate $200,000.
contacts).
Nonprofit charitable Depends on the entity's substantive
institutions. purpose.
Office buildings; shopping $100,000.
centers.
Private clubs................ $500,000.
Public utilities............. $250,000 or nonretail standard.
Restaurants.................. $500,000.
Social services organizations $250,000.
Symphony orchestras.......... $1 million.
Taxicabs..................... $500,000.
Transit systems.............. $250,000.
------------------------------------------------------------------------
(3) If an employer can be classified under more than one category,
the Board will assert jurisdiction if the employer meets the
jurisdictional standard of any of those categories.
(4) There are a few employer categories without specific
jurisdictional standards:
(i) Enterprises whose operations have a substantial effect on
national defense or that receive large amounts of Federal funds.
(ii) Enterprises in the District of Columbia.
(iii) Financial information organizations and accounting firms.
(iv) Professional sports.
(v) Stock brokerage firms.
(vi) U.S. Postal Service.
(5) A more complete discussion of the Board's jurisdictional
standards may be found in An Outline of Law and Procedure in
Representation Cases, Chapter 1, found on the Board's Web site,
www.nlrb.gov.
Appendix to Subpart A--Text of Employee Notice
``EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT
``The National Labor Relations Act (NLRA) guarantees the right
of employees to organize
[[Page 80419]]
and bargain collectively with their employers, and to engage in
other protected concerted activity. Employees covered by the NLRA*
are protected from certain types of employer and union misconduct.
This Notice gives you general information about your rights, and
about the obligations of employers and unions under the NLRA.
Contact the National Labor Relations Board (NLRB), the Federal
agency that investigates and resolves complaints under the NLRA,
using the contact information supplied below, if you have any
questions about specific rights that may apply in your particular
workplace.
``Under the NLRA, you have the right to:
Organize a union to negotiate with your employer
concerning your wages, hours, and other terms and conditions of
employment.
Form, join or assist a union.
Bargain collectively through representatives of
employees' own choosing for a contract with your employer setting
your wages, benefits, hours, and other working conditions.
Discuss your terms and conditions of employment or
union organizing with your co-workers or a union.
Take action with one or more co-workers to improve your
working conditions by, among other means, raising work-related
complaints directly with your employer or with a government agency,
and seeking help from a union.
Strike and picket, depending on the purpose or means of
the strike or the picketing.
Choose not to do any of these activities, including
joining or remaining a member of a union.
``Under the NLRA, it is illegal for your employer to:
Prohibit you from soliciting for a union during non-
work time, such as before or after work or during break times; or
from distributing union literature during non-work time, in non-work
areas, such as parking lots or break rooms.
Question you about your union support or activities in
a manner that discourages you from engaging in that activity.
Fire, demote, or transfer you, or reduce your hours or
change your shift, or otherwise take adverse action against you, or
threaten to take any of these actions, because you join or support a
union, or because you engage in concerted activity for mutual aid
and protection, or because you choose not to engage in any such
activity.
Threaten to close your workplace if workers choose a
union to represent them.
Promise or grant promotions, pay raises, or other
benefits to discourage or encourage union support.
Prohibit you from wearing union hats, buttons, t-
shirts, and pins in the workplace except under special
circumstances.
Spy on or videotape peaceful union activities and
gatherings or pretend to do so.
``Under the NLRA, it is illegal for a union or for the union
that represents you in bargaining with your employer to:
Threaten you that you will lose your job unless you
support the union.
Refuse to process a grievance because you have
criticized union officials or because you are not a member of the
union.
Use or maintain discriminatory standards or procedures
in making job referrals from a hiring hall.
Cause or attempt to cause an employer to discriminate
against you because of your union-related activity.
Take other adverse action against you based on whether
you have joined or support the union.
``If you and your co-workers select a union to act as your
collective bargaining representative, your employer and the union
are required to bargain in good faith in a genuine effort to reach a
written, binding agreement setting your terms and conditions of
employment. The union is required to fairly represent you in
bargaining and enforcing the agreement.
``Illegal conduct will not be permitted. If you believe your
rights or the rights of others have been violated, you should
contact the NLRB promptly to protect your rights, generally within
six months of the unlawful activity. You may inquire about possible
violations without your employer or anyone else being informed of
the inquiry. Charges may be filed by any person and need not be
filed by the employee directly affected by the violation. The NLRB
may order an employer to rehire a worker fired in violation of the
law and to pay lost wages and benefits, and may order an employer or
union to cease violating the law. Employees should seek assistance
from the nearest regional NLRB office, which can be found on the
Agency's Web site: http://www.nlrb.gov.
You can also contact the NLRB by calling toll-free: 1-866-667-
NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing
impaired.
``* The National Labor Relations Act covers most private-sector
employers. Excluded from coverage under the NLRA are public-sector
employees, agricultural and domestic workers, independent
contractors, workers employed by a parent or spouse, employees of
air and rail carriers covered by the Railway Labor Act, and
supervisors (although supervisors that have been discriminated
against for refusing to violate the NLRA may be covered).
``This is an official Government Notice and must not be defaced
by anyone.''
Subpart B--General Enforcement and Complaint Procedures
Sec. 104.210 How will the Board determine whether an employer is in
compliance with this part?
Normally, the Board will determine whether an employer is in
compliance when a person files an unfair labor practice charge alleging
that the employer has failed to post the employee notice required under
this part. Filing a charge sets in motion the Board's procedures for
investigating and adjudicating alleged unfair labor practices, and for
remedying conduct that the Board finds to be unlawful. See NLRA Section
10-11, 29 U.S.C. 160-61, and 29 CFR Part 102, Subpart B.
Sec. 104.211 What are the procedures for filing a charge?
(a) Filing charges. Any person (other than Board personnel) may
file a charge with the Board alleging that an employer has failed to
post the employee notice as required by this part. A charge should be
filed with the Regional Director of the Region in which the alleged
failure to post the required notice is occurring.
(b) Contents of charges. The charge must be in writing and signed,
and must be sworn to before a Board agent, notary public, or other
person authorized to administer oaths or take acknowledgements, or
contain a declaration by the person signing it, under penalty of
perjury, that its contents are true and correct. The charge must
include:
(1) The charging party's full name and address;
(2) If the charge is filed by a union, the full name and address of
any national or international union of which it is an affiliate or
constituent unit;
(3) The full name and address of the employer alleged to have
violated this part; and
(4) A clear and concise statement of the facts constituting the
alleged unfair labor practice.
Sec. 104.212 What are the procedures to be followed when a charge is
filed alleging that an employer has failed to post the required
employee notice?
(a) When a charge is filed with the Board under this section, the
Regional Director will investigate the allegations of the charge. If it
appears that the allegations are true, the Regional Director will make
reasonable efforts to persuade the respondent employer to post the
required employee notice expeditiously. If the employer does so, the
Board expects that there will rarely be a need for further
administrative proceedings.
(b) If an alleged violation cannot be resolved informally, the
Regional Director may issue a formal complaint against the respondent
employer, alleging a violation of the notice-posting requirement and
scheduling a hearing before an administrative law judge. After a
complaint issues, the matter will be adjudicated in keeping with the
Board's customary procedures. See NLRA Sections 10 and 11, 29 U.S.C.
160, 161; 29 CFR Part 102, Subpart B.
Sec. 104.213 What sanctions can be imposed for failure to post the
employee notice?
(a) If the Board finds that the respondent employer has failed to
post the required employee notices as alleged, the respondent will be
ordered
[[Page 80420]]
to cease and desist from the unlawful conduct and post the required
employee notice, as well as a remedial notice. In some instances
additional remedies may be appropriately invoked in keeping with the
Board's remedial authority.
(b) Any employer that threatens or retaliates against an employee
for filing charges or testifying at a hearing concerning alleged
violations of the notice-posting requirement may be found to have
committed an unfair labor practice. See NLRA Section 8(a)(1) and
8(a)(4), 29 U.S.C. 158(a)(1), (4).
Sec. 104.214 What other sanctions may be imposed for noncompliance?
(a) Tolling of statute of limitations. When an employee files an
unfair labor practice charge, the Board may find it appropriate to
excuse the employee from the requirement that charges be filed within
six months after the occurrence of the allegedly unlawful conduct, if
the employer has failed to post the required employee notice, unless
the employee has received actual or constructive notice that the
conduct complained of is unlawful. See NLRA Section 10(b), 29 U.S.C.
160(b).
(b) Knowing noncompliance as evidence of unlawful motive. If an
employer has actual or constructive knowledge of the requirement to
post the employee notice and fails or refuses to do so, the Board may
consider such a willful refusal as evidence of unlawful motive in a
case in which motive is an issue.
Subpart C--Ancillary Matters
Sec. 104.220 What other provisions apply to this part?
(a) The regulations in this part do not modify or affect the
interpretation of any other NLRB regulations or policy.
(b)(1) This subpart does not impair or otherwise affect:
(i) Authority granted by law to a department, agency, or the head
thereof; or
(ii) Functions of the Director of the Office of Management and
Budget relating to budgetary, administrative, or legislative proposals.
(2) This subpart must be implemented consistent with applicable law
and subject to the availability of appropriations.
(c) This part creates no right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
Signed in Washington, DC, December 16, 2010.
Wilma B. Liebman,
Chairman.
[FR Doc. 2010-32019 Filed 12-21-10; 8:45 am]
BILLING CODE 7545-01-P