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54028 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations

Enterprises further maintains that the
requirement to ensure that the notice is
conspicuous and not altered or defaced
imposes an unnecessary burden on
employers. Caremaster Medical
Services' comment asks whether
periodic inspections of the notices will
be conducted and, if so, by whom.
Specifically, this comment expresses
concern that employers will be forced to
permit union officials to enter their
facilities to inspect the notices. The rule
does not provide for such inspections or
alter current standards regarding union
access to employers' premises. Rather,
the Board contemplates that an
employer's failure to comply with the
rule will be brought to the attention of
the employer or the Board by employees
or union representatives who are
lawfully on the premises.
The International Union of Operating
Engineers comments that the rule needs
to apply to the marine construction
industry, in which employees work at
remote sites and do not necessarily see
a posting in the office. Another
comment similarly states that the rule is
not practical for small employers with
dispersed employees, e.g., trucking or
insurance companies. 117 Similarly, one
comment contends that the requirement
is burdensome for construction
employers, whose employees report to
various worksites. 118 The Board
recognizes that certain work situations,
such as those mentioned in the
comments, present special challenges
with regard to physical posting.
However, the Board concludes that
these employers must nonetheless post
the required notice at their work
premises in accordance with the
proposed rule. Electronic posting will
also aid the employers in providing the
notice to their employees in the manner
in which they customarily communicate
with them.
TLC Companies contends that
professional employer organizations
(PEOs) such as itself should be exempt
from the rule's requirements. It explains
that PEOs are "co-employers" of a client
employer's employees, providing
payroll and other administrative
services. However, it asserts that PEOS
have no control over the client
employer's worksite. Accordingly, TLC
Companies is concerned that a PEO
could be found liable for its client's
failure to post the notice. The Board
contemplates that employers will be
required to physically post a notice only
on their own premises or at worksites
where the employer has the ability to

117 Comment of TLC Companies.
118 Comment of NAI Electrical Contractors.

post a notice or cause a notice to be
posted directed to its own employees.
Retail Industry Leaders Association
asks whether the rule would apply to
overseas employees of American
employers. The answer to that question
is generally "no"; the Board's
jurisdiction does not extend to
American employees engaged in
permanent employment abroad in
locations over which the United States
has no legislative control. See Computer
Sciences Raytheon, 318 NLRB 966
(1995). Employers of employees who are
working abroad only temporarily are not
required to post the notice in foreign
workplaces.
b. Size and Form Requirements
Many comments from organizations
and individuals object to the 11x17-inch
size prescribed by the proposed rule. 119
They argue that most employers do not
have the capacity to make 11x17-inch
color copies and will have to use
commercial copy services, which some
contend are expensive. A human
resources official also asserts that other
required notices are smaller, and that
the larger poster will be more eye-
catching, implying that NLRA rights are
more important. Other comments
support the proposed 11x17-inch size,
stating that the notice should stand out
and be in large print, with one comment
specifying that the title should be
larger. 120 The AFL-CIO argues that
employers should not be permitted to
download the notice from the Board's
Web site if their limited printing
capacity would make it less eye-
catching.
A few comments contend that the
prescribed size will make it difficult to
include in consolidated posters of
various statutory rights, as the proposed
rule permits. 121 One comment urges the
Board to follow the "3' rule," according
to which a notice is large enough if it
can be read from a distance of 3 feet, 122
and another suggests only a legibility
requirement. 123 One comment states
that minor deviations, such as 1/4 inch,
should not be deemed violations. 124
Another comment expresses a concern
that a large, prominent poster could
cause a few unhappy employees to
begin activity that could result in
divisiveness in a small facility. 125

119 See, e.g., comment of Associated General
Contractors (AGC) of Iowa.
120 See, e.g., comments of AFL-CIO and three
Georgetown University Law Center students.
121 See, e.g., comment of Sinnissippi Centers.
122 AGC of Iowa.
123 Sinnissippi Centers.
124 National Council of Agricultural Employers.
125 Mercy Center Nursing Unit Inc.

The Board has decided to retain the
11x17-inch poster size. As the NPRM
states, the Board will furnish paper
copies of the notice, at no charge, to
employers that ask for them. Employers
that prefer to download and print the
notice from the Board's Web site will
have two formats available: a one-page
11x17-inch version and a two-page 8
1/2x11-inch version, which must be
printed in landscape format and taped
together to form the 11x17-inch poster.
In response to the comments objecting
to the added expense of obtaining color
copies through outside sources, the
Board has revised the rule to delete the
requirement that reproductions of the
notice be in color, provided that the
reproductions otherwise conform to the
Board-provided notice. Accordingly, the
Board concludes that obtaining copies
of the notice will not be difficult or
expensive for employers.
The Board finds no merit to the other
objections to the 11x17-inch poster size.
Contrary to some comments, the Board
does not believe that employees would
think that NLRA rights are more
important than other statutory rights,
merely because the notice of NLRA
rights is somewhat larger than notices
prescribed under some other statutes. It
would seem that, upon learning of all of
their rights in the workplace, employees
will determine from their understanding
of the rights themselves, rather than the
size of the various posters, which rights
(if any) are more important to them than
others. In the Board's view, adopting a
subjective "3' rule" or a "legibility
standard" could lead to disagreements
over whether a particular poster was
"legible" or could be read at a distance
of 3 feet. In addition, if, as some
comments contend (without citing
specifics), the size of the Board's notice
will pose a problem for manufacturers
of consolidated posters to include it
with posters detailing other workplace
rights, that would seem to be a problem
best left to those manufacturers to solve.
c. Language Issues
The proposed rule requires that,
"[w]here a significant portion of an
employer's workforce is not proficient
in English, the employer must provide
the notice in the language the
employees speak." This is the same
standard applied in the Department of
Labor's notice of NLRA rights for federal
contractors (29 CFR 471.2(d)) and in the
notice required under the Family and
Medical Leave Act (29 CFR 825.300(4)).
Many comments support the
requirement and availability of
translated notices, particularly as an
essential way of informing immigrant

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