NLRB argues employer's failure to post required notice constitutes unfair labor practice under NLRA Section 8(a)(1)

54032 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations employee rights as well as a remedial notice.14° 75 FR 80414. The comments opposing this proposal make three principal arguments. First, only Congress, not the Board, has the authority to ‘create a new unfair labor practice.” 141 Second, even if the Board possesses such authority, it has not identified the Section 7 rights that would be interfered with by an employer’s failure to post the notice.142 Third, “interfer[ing] with, restrain[ing], or coercling]’’ employees within the meaning of NLRA Section 8(a)(1) necessarily involves action, not failure to act; therefore, failure to post the notice cannot violate Section 8(a)(1).14% The Board finds no merit in any of these contentions. To begin with, it is incorrect to say that the Board lacks the authority to find that failure to post the notice violates Section 8(a)(1) without Congressional approval. It is true, as the Society for Human Resource Management states, that “Section 10(a) of the Act specifically limits the NLRB’s powers to preventing only the unfair labor practices listed in Section 8 of the Act. Section 8 is silent regarding any notice posting requirement (emphasis in original).’”” However, as the Supreme Court remarked long ago, The [NLRA] did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary that Act left to the Board the work of applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms. Thus a “rigid scheme of remedies” is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the dominant purpose of the legislation. Republic Aviation Corporation v. NLRB, 324 U.S. 793, 798 (1945) (citation omitted). Accordingly, since its creation, the Board in interpreting Section 8(a)(1) has found numerous actions as to which “Section 8 is silent” —e.g., coercively interrogating employees about their protected concerted activities, engaging in 140 Consistent with precedent, it will be unlawful for an employer to threaten or retaliate against an employee for filing charges or testifying in a Board proceeding involving an alleged violation of the notice-posting requirement. NLRA Sections 8(a)(1), 8(a)(4), 29 U.S.C. 158(a)(1), (4); Romar Refuse Removal, 314 NLRB 658 (1994). 141 See, e.g., comments of FMI, Assisted Living Federation of America (ALFA). 142 See, e.g., comment of U. S. Chamber of Commerce. 143 See, e.g., comments of Employment and Labor Law Committee, Association of Corporate Counsel (“ACC”); California Chamber of Commerce (California Chamber); and National Council of Agricultural Employers (NCAE). surveillance of employees’ union activities, threatening employees with retaliation for engaging in protected activities—to violate Section 8(a)(1) by “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in section 7” of the NLRA. Section 8 is equally silent concerning unions’ duty to inform employees of their rights under NLKB v. General Motors, above, and Communications Workers v. Beck, above, before attempting to obligate them pursuant to a union-securily clause, yet the Board finds that a union’s failure to provide that notice restrains and coerces employees in violation of Section 8(b)(1)(A). California Saw & Knife Works, above, 320 NLRB at 233, 259, 261.144 Because, as described in detail above, notice posting is necessary to ensure effective exercise of Section 7 rights, a refusal to post the required notice is at least an interference with employees’ exercise of those rights. For these reasons, in finding that an employer’s failure to post the required notice interferes with, restrains, or coerces employees in the exercise of their NLRA rights, in violation of Section 8(a)(1), the Board is acting consistently with its settled practice. Some comments claim that the Board has not identified any specific Section 7 right to justify this remedy. But such specificity is not needed, because all Section 7 rights are implicated by an employer’s failure to post the required notice. As previously stated, there is a strong nexus between knowledge of Section 7 rights and their free exercise. It therefore follows that an employer’s failure to post this notice, which informs employees of their Section 7 rights, reasonably tends to interfere with the exercise of such rights. Finally, although most violations of the NLRA involve actions rather than failures to act, there are instances in which a failure to act may be found to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Thus, a union’s failure to provide the required notices under NLRB v. General Motors, above, and 144 See Harkin and Miller. Although the Board suggested in a footnote in California Saw that there was no obligation to inform employees of their Section 7 rights, 320 NLRB at 232 n. 42, this dicta merely indicated that no such obligation had yet been recognized in that particular context. To the extent it could be read as denying that such an obligation may exist, it is the considered view of the Board that this reading must be rejected. Similarly, the statement in U.S. Postal Service, 241 N.L.R.B. 141, 152 (1979), regarding affirmative notice obligations is limited to Weingarten rights, and, in any event, does not suggest that notice of NLRA rights may never be required. Communications Workers v. Beck, above, violates Section 8(b)(1)(A) of the NLRA. California Saw & Knife Works, above, 320 NLRB at 233, 259, 261. An employer that fails or refuses to execute an agreed-to collective-bargaining agreement on request of the union violates Section 8(d), 8(a)(5) and, derivatively, Section 8(a)(1). An employer that fails to provide relevant information requested by the union that represents the employer’s employees violates Section 8(a)(5) and (1). See, e.g., NLEB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The NLRA’s recognition that a failure to perform a legal duty may constitute unlawful interference, coercion or restraint is not unique. Courts have expressly held that the failure to post notice required by regulation can be an “interference” with employee Family and Medical Leave Act rights. In a provision that “largely mimics thle language of] § 8(a)(1) of the NLRA,” Bachelder v. Am. W. Airlines, 259 F. 3d 1112, 1123 (9th Cir. 2001), the FMLA states that “‘[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title.” 29 U.S.C. 2615(a)(1). In interpreting this language, the Department of Labor’s regulations specifically state that failure to post the required notice of FMLA rights “may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights” under section 2615(a)(1). 29 CFR 825.300(e). Courts have agreed, finding that the failure to provide FMLA notices is an “adverse action” against the employee that supports a prima facie case of interference. Greenwell v. Charles Machine Works, Inc., (W.D. Ok. April 15, 2011); Smith v. Westchester County, (S.D.N.Y. February 14, 2011). Accordingly, the Board finds no impediment to declaring that an employer’s failure to post the required notice will violate Section 8(a)(1).145 As it explained in the NPRM, however, the Board expects that, in practice, few violations will be found for failures to post the notice. The Board anticipates that most employers that fail to post the notice will do so because they are unaware of the rule, and that when they learn about the rule, they will post the notice without the need for formal administrative action or litigation. 75 FR 80414. To that end, § 104.212(a) of the rule states that if an 145 ALFA contends that failure to post a Board- required notice is not an unfair labor practice, but the authorities cited do not support that proposition. HOUSE_OVERSIGHT_022303