NLRB Final Rule on Employee Notice-Posting Requirements and Enforcement Mechanisms

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54031 institutions should be excluded from coverage if they are nonprofit and hold themselves out to the public as being religious. The Board examines jurisdictional issues on a case-by-case basis, and the Board’s jurisdiction jurisprudence is highly complex. The Board has asserted jurisdiction over some religiously- affiliated employers in the past, but has declined to assert jurisdiction over other religiously-affiliated employers. See, e.g., Ecclesiastical Maintenance Service, 320 NLRB 70 (1995), and St. Edmund’s High School, 337 NLRB 1260 (2002). In Ukiah Valley Medical Center, the Board found that neither the First Amendment nor the Religious Restoration Act precludes the Board from asserting jurisdiction over a religiously-affiliated employer. 332 NLRB 602 (2000). If an employer is unsure whether the Board has jurisdiction over its operations, it may contact the Board’s regional office. In its comment, the United Stated Postal Service points out that it has different statutory rules from those covering other private sector employees. Labor relations in the Postal Service are governed by Chapter 12 of the Postal Reorganization Act of 1970, 39 U.S.C. 1201 et seq. Section 1209(a) of the Postal Reorganization Act generally makes the NLRA applicable to all employee-management relations “‘to the extent not inconsistent with the provisions of this title.” As raised by the comment, there are indeed several areas in which the Postal Reorganization Act is inconsistent with the NLRA. The principal differences are that an agency shop is prohibited (id. section 1209(a)) and that postal employees may not strike. Id. Section 410(b)(1)(incorporating 5 U.S.C. 7311). In light of these differences, the Board agrees that a postal worker-specific notice is necessary. The Board, however, does not wish to create a notice without the benefit of specific public comment on this issue. Accordingly, the Board will exclude the United States Postal Service from coverage under the final rule; the Board may, at a later date, request comments on a postal worker-specific notice. Subpart B—Enforcement and Complaint Procedures Subpart B of the rule contains procedures for enforcement of the employee notice-posting requirement. In crafting Subpart B, the Board was mindful of the need to identify an effective remedy for noncompliance with the notice-posting requirement. The Board gave careful consideration to several alternative approaches to enforcing the rule’s notice-posting requirements. Those alternatives, not all of which are mutually exclusive, were (1) Finding the failure to post the required notices to be an unfair labor practice; (2) tolling the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices; (3) considering the willful failure to post the notices as evidence of unlawful motive in unfair labor practice cases; (4) voluntary compliance. 75 FR 80413-80414. As explained in the NPRM, the Board considered but tentatively rejected relying solely on voluntary compliance. This option logically would appear to be the least conducive to an effective enforcement of the notice-posting requirement, and the Board’s limited experience with voluntary posting of notices of employee rights seems to confirm this. When an election petition is filed, the Board’s Regional Office sends the employer Form NLRB-5492, Notice to Employees, together with a leaflet containing significant “Rights of Employees.’ See the Board’s Casehandling Manual, Part Two— Representation Proceedings, Section 11008.5, found on the Board’s Web site, http://www.nirb.gov. The Regional Office also asks employers to post the notice of employee rights in the workplace; however, the Board’s experience is that the notices are seldom posted. Id. at 80414. Moreover, because the notice is voluntary and there is no enforcement scheme, there is no remedy to fix the problem when the notice is not posted. The Board has found nothing in the comments to the NPRM that would give it reason to believe that voluntary compliance would be any more effective under the present notice rule. Therefore, the Board has decided not to rely on voluntary compliance. Instead the final rule provides that failing to post the notice may be found to be an unfair labor practice and may also, in appropriate circumstances, be grounds for tolling the statute of limitations. In addition, a knowing and willful failure to post employee notices may be found to be evidence of unlawful motive in an unfair labor practice case. (As the Board also explained in the NPRM, it did not consider imposing monetary fines for noncompliance, because the Board lacks the statutory authority to impose “penalties or fines.’’ See, e.g., Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-12 (1940).) These provisions have two purposes: to ensure that any violations of the notice-posting requirement that occur may be remedied where necessary, and to describe how violations of the notice-posting requirement may affect other Board proceedings.137 The Board received several hundred comments regarding the proposed means of enforcing the notice posting requirement. Those that favor implementing the rule also favor the proposed enforcement mechanisms.138 Those opposing the rule generally oppose all three enforcement mechanisms. A. Noncompliance as an Unfair Labor Practice The rule requires employers to inform employees of their NLRA rights because the Board believes that employees must know their rights in order to exercise them effectively. Accordingly, the Board may find that an employer that fails or refuses to post the required notice of employee rights violates Section 8(a)(1) of the NLRA, 29 U.S.C. 158(a)(1) by “Gnterfer[ing] with, restrain[ing], or coercling] employees in the exercise of the rights guaranteed in section 7 (29 U.S.C. 157).” As it explained in the NPRM, the Board expects that most employers that fail to post the required notice will do so simply because they are unaware of the rule, and that when it is called to their attention, they will comply without the need for formal administrative action or litigation. When that is not the case, the Board’s customary procedures for investigating and adjudicating alleged unfair labor practices may be invoked. See NLRA Sections 10 and 11, 29 U.S.C. 160, 161; 29 CFR part 102, subpart B.1°° When the Board finds a violation, it will customarily order the employer to cease and desist and to post the notice of 137 The tolling and animus provisions are not remedies in the usual sense of the term; however, these provisions inform the public of the impact that violations of the notice posting obligation may have in other NLRB proceedings. As described below, these impacts are not a “punishment” for noncompliance. To the contrary, the tolling provision is intended to ensure that noncompliance with the notice posting requirement does not prejudice innocent employees. And the animus provision is intended to inform the public that knowing and willful violations of the rule may support an inference of animus toward NLRA rights. 138 See, e.g., Harkin and Miller, National Employment Law Project, Public Justice Center, Inc. 139 The Board’s General Counsel has unreviewable discretion as to whether to issue a complaint in an unfair labor practice proceeding. See, e.g., Vaca v. Sipes, 386 U.S. 171, 182 (1967). The General Counsel has exercised that discretion to refuse to proceed with meritorious charges when it would not serve the purposes of the Act. See General Counsel memoranda 02-08 and 95-15. This discretion includes dismissing any charge filed against an employer that is not covered by the Board’s jurisdictional requirements. HOUSE_OVERSIGHT_022302