NLRB Proposed Posting Rule Generates Industry Comments on Notice Size, Language, and Enforcement

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.11” 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.12° 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.1?3 One comment states that minor deviations, such as 1% inch, should not be deemed violations.1?# 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 ¥Y2x11-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, “Tw]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 HOUSE_OVERSIGHT_022299