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54024 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations

individual provisions in this section of
the notice received numerous comments
and suggestions for improvement. The
vast majority of the comments about the
specific provisions are from
representatives of employers. Those
comments generally contend that the
provisions are overgeneralizations and
do not articulate the legal standard for
evaluating allegations of unlawful
conduct or indicate factual scenarios in
which certain employer conduct may be
lawful.

After reviewing all of the comments,
the Board has decided to revise one of
the examples of unlawful employer
conduct contained in the NPRM. The
Board concludes that the other
provisions, as proposed, are accurate
and informative and, as with the notice
as a whole, strike an appropriate
balance between being simultaneously
instructive and succinct.

Furthermore, the Board sees no reason
to add or subtract from the employer or
union illegal activity to make the two
sections contain an equal number of
paragraphs. The comment that argues
that no imbalance exists in the statute
is correct, but the majority of violations
under Section 8(b) concern union
conduct vis-à-vis employers, not
conduct that impairs employees' rights.
The notice of rights is intended to
summarize employer and union
violations against employees;
accordingly, there is no need to alter the
list to include unlawful union activity
against employers.

i. No-Solicitation and No-Distribution
Rules

The Board received a few comments
that were critical of the proposed notice
language stating that an employer
cannot lawfully prohibit employees
from “soliciting for the union during
non-work time or distributing union
literature during non-work time, in non-
work areas.” The Service Employees
International Union comments that
“solicitation” has a narrow meaning and
involves asking someone to join the
union by signing an authorization card,
which is subject to the restrictions
suggested in the notice. The comment
submits that the notice should state that
an employer cannot prohibit employees
from “talking” about a union. The
comment suggests that “talking” is both
more accurate and is easier for
employees to understand than
“soliciting.”

The remaining comments criticize the
provision for failing to note any
limitations on employees' rights to
solicit and distribute, such as the
limited rights of off-duty employees,
and limitations in retail and health care

establishments. One comment, in
particular, suggests the notice should
advise healthcare employees that they
do not enjoy a protected right to solicit
in immediate patient care areas or
where their activity might disturb
patients. See Beth Israel Hosp. v. NLRB,
437 U.S. 483 (1978). The comment
proposes to include a qualification that
a hospital or other health care employer
may prohibit all solicitation in
immediate patient care areas or outside
those areas when necessary to avoid
disrupting health care operations or
disturbing patients. Another comment
suggests that the law in this area is so
complex that no meaningful but
succinct provision can be constructed,
and therefore recommends deleting it
entirely.

The Board disagrees with those
comments. The Board appreciates that
under case law, employees' right to
engage in solicitation and distribution of
literature is qualified in certain settings
and accordingly that employers may, in
some situations, legally prohibit
solicitation or distribution of literature
even during employees' nonworking
time. Given the variety of circumstances
in which the right to solicit and
distribute may be limited, however, the
Board has determined that limitations
on the size and format of the notice
preclude the inclusion of factual
situations in which an employer may
lawfully limit such activity. As stated
above, employees may contact the NLRB
with specific questions about the
lawfulness of their employers' rules
governing solicitation and literature
distribution.

Turning to the suggestion that the
notice should be modified to remove the
reference to union solicitation in favor
of a reference only to the right to engage
in union talk, the Board agrees in part.
The Board distinguishes between
soliciting for a union, which generally
means encouraging a co-worker to
participate in supporting a union, and
union talk, which generally refers to
discussions about the advantages and
disadvantages of unionization. Scripps
Memorial Hosp., 347 NLRB 52 (2006).
The right to talk about terms and
conditions of employment, which
would necessarily include union talk, is
encompassed more specifically by the
“discussion” provision in the
affirmative rights section of the notice.
That provision indicates that employees
have the right to “discuss your terms
and conditions of employment or union
organizing with your co-workers or a
union.” In order to maintain
consistency and clarity throughout the
notice, the Board agrees that some
change is necessary to the solicitation

provision. Accordingly, the final notice
will state that it is illegal for an
employer to “prohibit you from talking
about or soliciting for a union during
non-work time, such as before or after
work or during break times; or from
distributing union literature during non-
work time, in non-work areas, such as
parking lots or break rooms.”

ii. Questioning Employees About Union
Activity

The Board received one comment
concerning this provision, suggesting
that it was confusing. The Board
believes the existing language is
sufficiently clear.

iii. Taking Adverse Action Against
Employees for Engaging in Union-
Related Activity

The Board did not receive any
specific comments regarding this
provision.

iv. Threats To Close

A few comments from employer
groups criticize the perceived
overgeneralization of this provision.
Those comments note that, as with
unlawful interrogation, a threat to close
is evaluated under a totality of
circumstances, and that an employer is
permitted to state the effects of
unionization on the company so long as
the statement is based on demonstrably
probable consequences of unionization.

The Board agrees that the law in this
general area is complex and that
predictions of plant closure based on
demonstrably probable consequences of
unionization may be lawful. NLRB v.
Gissel Packing Co., 395 U.S. 575, 618
(1969). However, the example in the
proposed notice is not such a
prediction; rather, the notice states that
it is unlawful for an employer to
“threaten to close your workplace if
workers choose a union to represent
them.” Such a statement, which clearly
indicates that the employer will close
the plant in retaliation against the
employees for choosing union
representation, is unlawful. Id. at 618–
619. Thus, the Board finds it
unnecessary to modify or delete this
provision of the notice.

v. Promising Benefits

The Board received one comment
addressing this provision. The comment
argues that the provision is “troubling”
because it may be interpreted by a
reader to mean “anytime their employer
seeks to make such improvements it
discourages union support because
improved wages and benefits may
reduce employee’s interest in a union.”
The Board does not think such an

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