National Labor Relations Board Final Rule on Employee Notice Requirements (29 CFR Part 104)

54046 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations effective date of the rule is 75 days after publication in the Federal Register.21% List of Subjects in 29 CFR Part 104 Administrative practice and procedure, Employee rights, Labor unions. Text of Final Rule Accordingly, a new part 104 is added to 29 CFR chapter 1 to read as follows: PART 104—NOTIFICATION OF EMPLOYEE RIGHTS; OBLIGATIONS OF EMPLOYERS Subpart A—Definitions, Requirements for Employee Notice, and Exceptions and Exemptions Sec. 104.201 What definitions apply to this part? 104.202 What employee notice must employers subject to the NLRA post in the workplace? 104.203 Are Federal contractors covered under this part? 104.204 What entities are not subject to this part? Appendix to Subpart A—Text of Employee Notice Subpart B—General Enforcement and Complaint Procedures 104.210 How will the Board determine whether an employer is in compliance with this part? 104.211 What are the procedures for filing a charge? 104.212 What are the procedures to be followed when a charge is filed alleging that an employer has failed to post the required employee notice? 104.213 What remedies are available to cure a failure to post the employee notice? 104.214 How might other Board proceedings be affected by failure to post the employee notice? Subpart C—Ancillary Matters 104.220 What other provisions apply to this part? rule’ because, as explained in the discussion of the Regulatory Flexibility Act above, the Board has estimated that the average cost of compliance with the rule will be approximately $64.40 per affected employer; thus, because there are some 6 million employers that could potentially be affected by the rule, the total cost to the economy of compliance with the rule will be approximately $386.4 million. As further explained, nearly all of that cost will be incurred during the year in which the rule takes effect; in subsequent years, the only costs of compliance will be those incurred by employers that either open new facilities or expand existing ones, and those that for one reason or another fail to comply with the rule during the first year. The Board therefore expects that the costs of compliance will be far less than $100 million in the second and subsequent years. The Board is confident that the rule will have none of the effects enumerated in 5 U.S.C. 804(2)(B) and (C) above. 213 The Board finds unpersuasive the suggestions in several comments that the effective date of the rule be postponed to as late as April 15, 2012. The Board finds nothing in the requirements of the rule or in the comments received that would warrant postponing the effective date. Authority: National Labor Relations Act (NLRA), Section 6, 29 U.S.C. 156; Administrative Procedure Act, 5 U.S.C. 553. Subpart A—Definitions, Requirements for Employee Notice, and Exceptions and Exemptions § 104.201 part? Employee includes any employee, and is not limited to the employees of a particular employer, unless the NLRA explicitly states otherwise. The term includes anyone whose work has ceased because of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment. However, it does not include agricultural laborers, supervisors, or independent contractors, or anyone employed in the domestic service of any family or person at his home, or by his parent or spouse, or by an employer subject to the Railway Labor Act (45 U.S.C. 151 ef seq.), or by any other person who is not an employer as defined in the NLRA. 29 U.S.C. 152(3). Employee notice means the notice set forth in the Appendix to Subpart A of this part that employers subject to the NLRA must post pursuant to this part. Employer includes any person acting as an agent of an employer, directly or indirectly. The term does not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. 29 U.S.C. 152(2). Further, the term “‘employer” does not include entities over which the Board has been found not to have jurisdiction, or over which the Board has chosen through regulation or adjudication not to assert jurisdiction. Labor organization means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. 29 U.S.C. 152(5). National Labor Relations Board (Board) means the National Labor Relations Board provided for in section 3 of the National Labor Relations Act, 29 U.S.C. 153. 29 U.S.C. 152(10). Person includes one or more individuals, labor organizations, What definitions apply to this partnerships, associations, corporations, legal representatives, trustees, trustees in cases under title 11 of the United States Code, or receivers. 29 U.S.C. 152(1). Rules, regulations, and orders, as used in § 104.202, means rules, regulations, and relevant orders issued by the Board pursuant to this part. Supervisor means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. 152(11). Unfair labor practice means any unfair labor practice listed in section 8 of the National Labor Relations Act, 29 U.S.C. 158. 29 U.S.C. 152(8). Union means a labor organization as defined above. § 104.202 What employee notice must employers subject to the NLRA post in the workplace? (a) Posting of emplovee notice. All employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures, in the language set forth in the Appendix to Subpart A of this part. (b) Size and form requirements. The notice to employees shall be at least 11 inches by 17 inches in size, and in such format, type size, and style as the Board shall prescribe. If an employer chooses to print the notice after downloading it from the Board’s Web site, the printed notice shall be at least 11 inches by 17 inches in size. (c) Adaptation of language. The National Labor Relations Board may find that an Act of Congress, clarification of existing law by the courts or the Board, or other circumstances make modification of the employee notice necessary to achieve the purposes of this part. In such circumstances, the Board will promptly issue rules, regulations, or orders as are needed to ensure that all future employee notices contain appropriate language to achieve the purposes of this art. p (d) Physical posting of employee notice. The employee notice must be posted in conspicuous places where they are readily seen by employees, including all places where notices to HOUSE_OVERSIGHT_022317