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

example, they ask whether an employer that occasionally uses text messaging or Twitter to communicate with employees would have to use those technologies and, if so, how they would be able to comply with the rule, in view of the length restrictions of these media. The U.S. Chamber of Commerce raises the same issue regarding faxing, voice mail, and instant messaging. The National Roofing Contractors Association notes that some employers use email to communicate with certain employees, while other employees have no access to email during their work day. As to email communication itself, an individual observes that many employees change jobs every 3 to 4 years, and an email reaches only those in the workforce at a specific time. The same comment notes that the proposed rule does not state when or how often email notice should be provided. Three Georgetown law students recommend that the rule mandate email as well as intranet notice to employees when it goes into effect and written notice to new employees within a week of their starting employment.
The Board responds that, as discussed above regarding the location of posting, “customarily” is used in its normal meaning. This provision of the rule would not apply to an employer that only occasionally uses electronic means to communicate with employees. However, in view of the numerous comments expressing concern over the proposed rule’s email posting requirements, the Board has decided not to require employers to provide the notice to employees by means of email and the other forms of electronic communication listed in the previous paragraph. In the Board’s judgment, the potential for confusion and the prospect of requiring repeated notifications in order to reach new employees outweigh the benefits that could be derived at the margin from such notifications. All employers subject to the rule will be required to post the notice physically in their facilities; and employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites as well. Moreover, those notices (unlike the Board’s election and remedial notices) must remain posted; thus, it is reasonable to expect that even though some employees may not see the notices immediately, more and more will see them and learn about their NLRA rights as time goes by. Accordingly, the only electronic postings required under the final rule will be those on internet or intranet sites.
Many comments address the characteristics of electronic posting, as prescribed in § 104.202(f). In the NPRM, the Board proposed not to prescribe the size, clarity, location, or brightness of an electronic notice or link to the notice, but rather require that it be at least as prominent as other electronic notices to employees, as the Department of Labor’s rule requires. No comments suggest more specific requirements; the Michigan Health & Hospital Association argues that such requirements would result in inadvertent noncompliance. The Board has decided to adopt the Department of Labor’s approach, as proposed in the NPRM.
Baker & McKenzie urges that the title of the link in the proposed rule be changed to “Employee Rights under the National Labor Relations Act” rather than “Important Notice about Employees Rights to Organize and Bargain Collectively with Their Employers.” The Board agrees and has revised the rule accordingly.
A comment from Vigilant states that a link to the Board’s Web site, which is one means of electronic posting, should not be required to include the introductory language of the notice. The Board agrees, noting that the Department of Labor takes this approach, and will not require that electronic links to the Board’s Web site include the introductory language.
For the foregoing reasons, the Board has decided to retain the posting requirements as proposed in the NPRM, modified as indicated above.

e. Compliance With the Department of Labor’s Rule

Several comments opposing the proposed rule urge that, if the rule becomes final, the Board should retain the “safe harbor” provided for Federal contractors that comply with the Department of Labor’s notice posting rule.134 However, the U.S. Chamber of Commerce states that some employers post the Department of Labor’s notice at facilities where it is not required or where Federal contract work is performed only sporadically. It questions whether such employers must replace the Department of Labor’s notice with the Board’s when no contract work is being performed, or whether they can comply with the Board’s rule by leaving the Department of Labor’s notice in place. The Chamber proposes that employers be allowed to choose to maintain the Department of Labor’s notice, although another comment asserts that employees might think that the notice is no longer applicable because of the lack of a current contract. Another comment raises the possibility that either the Board or the Department of Labor could decide to change its notice and emphasized that they need to be identical in order to provide the safe harbor. The Board responds that a Federal contractor that complies with the Department of Labor’s notice-posting rule will be deemed in compliance with the Board’s requirement.135

3. Exceptions

The rule applies only to employers that are subject to the NLRA. Under NLRA Section 2(2), “employer” excludes the United States government, any wholly owned government corporation, any Federal Reserve Bank, any State or political subdivision, and any person subject to the Railway Labor Act, 45 U.S.C. 151 et seq. 29 U.S.C. 152(2). Thus, under the proposed rule, those excluded entities are not required to post the notice of employee rights. The proposed rule also does not apply to entities that employ only individuals who are not considered “employees” under the NLRA. See Subpart A, below; 29 U.S.C. 152(3). Finally, the proposed rule does not apply to entities over which the Board has been found not to have jurisdiction, or over which the Board has chosen through regulation or adjudication not to assert jurisdiction.136 The Board proposed that all employers covered under the NLRA would be subject to the notice posting rule. 75 FR 80413.
The Coalition for a Democratic Workplace argues that the final rule cannot be applied to religiously-affiliated employers. The Coalition argues that assertion of jurisdiction would “substantially burden [such employers’] exercise of religion in violation of both the First Amendment and the Religious Freedom Restoration Act.” Similarly, Seyfarth Shaw contends that religiously-affiliated healthcare

Mount Sterling, Kentucky Chamber of Commerce; U.S. Xpress, Inc.

134 See, e.g., comments of IFDA; Estes; The Sack Company; National Roofing Contractors Association.

135 A few comments ask whether the Board’s rule would preempt the Department of Labor’s rule. Because the answer to that question would not affect the validity of the Board’s rule, the Board finds it unnecessary to take a position on that issue in this proceeding.

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

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