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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
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interpretation would be reasonable,
because it is contrary to the plain
language of the notice. The notice states
that promises or grants of benefits “to
discourage or encourage union support”
are unlawful. It would make little sense
to use such language if the Board had
meant that any promises or grants of
benefits were unlawful, rather than only
those with the unlawful stated
purposes. And stating that such
promises or grants to * * * encourage
union support are unlawful necessarily
implies that not all promises and grants
of benefits discourage union support.

vi. Prohibitions on Union Insignia

A few comments suggest that the
provision fails to illuminate the
conditions under which “special
circumstances” may exist, including in
hotels or retail establishments where the
insignia may interfere with the
employer’s public image, or when the
insignia is profane or vulgar. Another
comment indicates that the provision is
overly broad because it does not reflect
that a violation depends on the work
environment and the content of the
insignia. All the comments addressing
this provision suggest either adding
more detail to the provision to narrow
its meaning, or striking the provision
entirely.
Again, the Board disagrees.
Employees have a statutorily protected
right to wear union insignia unless the
employer is able to demonstrate
“special circumstances” that justify a
prohibition. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). For reasons
of format, the notice cannot
accommodate those comments
suggesting that this provision specify
cases in which the Board has found
“special circumstances,” such as where
insignia might interfere with production
or safety; where it conveys a message
that is obscene or disparages a
company’s product or service; where it
interferes with an employer’s attempts
to have its employees project a specific
image to customers; where it hinders
production; where it causes disciplinary
problems in the plant; where it is in an
immediate patient care areas; or where
it would have any other consequences
that would constitute special
circumstances under settled precedent.
NLRB v. Mead Corp., 73 F.3d 74, 79 (6th
Cir. 1996), enfg. Escanaba Paper Co.,
314 NLRB 732 (1994).
Given the lengthy list of potential
special circumstances, the addition of
one or two examples of special
circumstances might mislead or confuse
employees into thinking that the right to
wear union insignia in all other
circumstances was absolute. And

including an entire list of special
circumstances, concerning both the
wearing of union insignia and other
matters (e.g., striking and picketing,
soliciting and distributing union
literature), would make it impossible to
summarize NLRA rights on an 11x17
inch poster. In any event, the Board
finds that the general caveat that special
circumstances may defeat the
application of the general rule, coupled
with the advice to employees to contact
the NLRB with specific questions about
particular issues, achieves the balance
required for an employee notice of
rights about wearing union insignia in
the workplace.

vii. Spying or Videotaping

Aside from the few comments that
suggest the provision be stricken, only
one comment specifically addresses the
content of this provision. The comment
states that the language is confusing
because a “supervisor might believe it
would be permissible to photograph or
tape record a union meeting. Another
might say that their video camera
doesn’t use tape so it’s okay to use.” The
Board has determined that no change is
necessary. In the Board’s view, it is
unlikely that a reasonable supervisor
would construe this notice language
(which also says that it is unlawful to
“spy on” employees’ peaceful union
activities) as indicating that it is
unlawful to videotape, but lawful to
tape record or photograph, such
activities. Supervisors are free to contact
the Board if they are unsure whether a
contemplated response to union activity
might be unlawful.

viii. Other Suggested Additions to
Illegal Employer Conduct

The Heritage Foundation suggests that
the Board add language to the notice
informing employees that if they choose
to be represented by a union, their
employer may not give them raises or
bonuses for good performance without
first bargaining with the union. The
comment suggests that the Board add
the following provision “if a union
represents you and your co-workers,
give you a pay raise or a bonus, or
reduce or dock your pay, without
negotiating with the union.” The Board
rejects this suggestion for the same
reason it rejects other comments
contending that the notice should
include the consequences of
unionization in the summary of NLRA
rights, above.
The National Immigration Law Center
suggests that the Board add the
following to the notice poster:

Under the NLRA, it is illegal for your
employer to: Report you or threaten to report

you to Immigration and Customs
Enforcement (ICE) or to other law
enforcement authorities in order to
intimidate or retaliate against you because
you join or support a union, or because you
engage in concerted activity for mutual aid
and protection.

The Board finds it unnecessary to add
this statement. The notice states that it
is unlawful for an employer to “fire,
demote, or transfer you, or reduce your
hours or change your shift, or otherwise
take adverse action against you, or
threaten to take any of these actions,
because you join or support a union, or
because you engage in concerted
activity for mutual aid and protection
(emphasis added) [.]” Reporting or
threatening to report an employee in the
manner described in the comment
would be a form of adverse action or
threat thereof, and the Board believes
that it would be understood as such.

d. Examples of Illegal Union Activity

The proposed notice contained the
following examples of unlawful union
conduct:

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

75 FR 80419.

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

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