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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
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confusion for many employees.
Currently, the language in the notice
tracks statutory language and provides
only the list of employees excluded
from coverage. As a result, those
employees not listed under the
exclusions will reasonably believe they
are covered employees under the
statute. Any employees who are unsure
of their status should contact a regional
office of the NLRB.

The final notice as modified is set
forth in the Appendix to Subpart A of
this rule.

2. Posting Issues

The Board proposed 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. The proposed rule further
provides that 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.

Proposed § 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 § 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, http://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
§ 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.111 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 proposed 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 proposed
rule states that the link must contain the
prescribed introductory language from
the poster, which appears in 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.

The proposed rule provides that,
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
§ 104.202(f), the translated version of
the notice supplied by the Board, or by
prominently displaying, as required in
§ 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. 75 FR 80417.

Section 104.203 of the proposed rule
provides that Federal contractors may
comply with the requirements of the
rule by posting the notices to employees
required under the Department of
Labor’s notice-posting rule, 29 CFR part
471. Id.

The Board solicited comments on its
proposed requirements for both physical
and electronic notice posting. In
addition, the Board solicited 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.

The Board received numerous
comments concerning the technical
requirements for posting the notices of
employee rights. Those comments
address the locations where notices
would be physically posted, physical
characteristics of the posters,

requirements for posting in languages
other than English, details of the
requirement for electronic posting of
notices by employers that customarily
communicate with their employees
electronically, and ‘‘safe harbor’’
provisions for Federal contractors that
are already posting the Department of
Labor’s notice of NLRA rights.

a. Location of Posting

Section 104.202(d) of the proposed
rule requires that the notice be posted
‘‘in conspicuous places, including all
places where notices to employees are
customarily posted.’’ Some employers
and their representatives, including law
firm Baker & McKenzie, comment that
the proposed rule does not define
‘‘customarily.’’ The Board responds that
the term is used in its normal meaning
of ‘‘ordinarily’’ or ‘‘usually,’’ as it has
been used in the Board’s remedial
orders for decades.112 This standard is
consistent with the posting
requirements in the regulations and
statutes of other agencies.113 Baker &
McKenzie’s comment contends that the
quoted phrase should read instead
‘‘where other legally-required notices to
employees are customarily posted.’’ The
Board disagrees. As under the
Department of Labor’s notice posting
requirement,114 the Board’s final rule
clarifies that the notice must be posted
wherever notices to employees
regarding personnel rules and policies
are customarily posted and are readily
seen by employees, not simply where
other legally mandated notices are
posted.

A number of comments from
employers 115 and individuals take the
position that it is time to move away
from paper posters and to encourage
employees to inform themselves of their
rights through the Internet. Many
comments object that the posting
requirement will add to already
cluttered bulletin boards or necessitate
additional bulletin boards.116 The Board
responds to these comments above in
section II, subsection C, Factual Support
for the Rule. The Council of Smaller

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111 See J. Picini Flooring, 356 NLRB No. 9, slip op.
at 6 (2010).

112 See, e.g., The Golub Corporation, 159 NLRB
355, 369 (1966).

113 See, e.g., 29 CFR 1903.2 (Occupational Safety
and Health Act); 29 CFR 1601.30 (Title VII of the
Civil Rights Act of 1964); 42 U.S.C. 2000e–10(a)
(Americans with Disabilities Act); 29 U.S.C. 2619(a)
(Family and Medical Leave Act).

114 75 FR 28386.

115 See, e.g., comments of Buffalo Wild Wings;
Associated Milk Producers, Inc.; Smitty’s, Inc.;
National Grocers Association; and Sorensen/Wille,
Inc.

116 See, e.g., comments of Dr. Pepper Snapple
Group; Georgia Caremaster Medical Services;
Homestead Village, Inc.; Exodus Designs &
Surfaces; Bonnie Dedmore State Farm.

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