NLRB Clarifies ‘Willful’ Failure to Post Union Notices as Evidence of Unlawful Motive

54036 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations refusal to recognize and bargain with union, evidence of unlawfully motivated failure to hire). Thus, it is proper for the Board to consider a knowing and willful failure to post the notice as evidence of unlawful motive. However, the Board has noticed that it employed somewhat inconsistent language in the NPRM regarding the consideration of failure to post the notice as evidence of antiunion animus. Thus, the caption of paragraph 104.214(b) reads: “Knowing noncompliance as evidence of unlawful motive.’ However, the paragraph itself states that “If an employer has actual or constructive knowledge of the requirement to post the notice and fails or refuses to do so, the Board may consider such a willful refusal as evidence of unlawful motive in a case in which motive is an issue.”’ (Emphasis added in both cases.) 75 FR at 80420. In the preamble to the NPRM, the Board referred only to knowing noncompliance as evidence of unlawful motive. 75 FR at 80414-80415. On reflection, the Board wishes to clarify this provision to state that, to be considered as evidence of unlawful motive, an employer’s failure to post the notice must be both knowing and willful—i.e., the employer must have actual (as opposed to constructive) knowledge of the rule and yet refuse, on no cognizable basis, to post the notice. The Board is revising the language of the rule accordingly. The comment that prompted these revisions urges that there should be no adverse consequences for the employer that does not post the notice because it has a good-faith (but, implicitly, erroneous) belief that it is not covered by the NLRA.62 The Board rejects this contention as it pertains to finding the failure to post to be an unfair labor practice or grounds for tolling the 10(b) period. Failure to post the notice interferes with employees’ NLRA rights regardless of the reason for the failure; good faith, though commendable, is irrelevant.163 Additionally, tolling is 162 One example could be an employer that believes that it is subject to the Railway Labor Act and not to the NLRA. 163 This is so in other areas of NLRA law. For example, an employer who coercively interrogates or disciplines an individual concerning his or her union activities violates the NLRA if the individual is a statutory employee, even though the employer may have honestly believed that the individual was a statutory supervisor and not protected by the NLRA. Also, absent compelling economic circumstances, an employer that is testing the Board’s certification of a newly-selected union in the court of appeals makes unilateral changes in unit employees’ terms and conditions of employment at its peril; if the court affirms the certification, the unilateral changes violate NLRA Section 8(a)(5) even if the employer believed in good faith that the certification was inappropriate. concerned with fairness to the employee, and these fairness concerns are unaffected by the employer’s good or bad faith; as previously noted, notice posting tolling is fundamentally different from tolling based upon employer misconduct. However, an employer that fails to post the notice only because it honestly but erroneously believes that it is not subject to the NLRB’s jurisdiction does not thereby indicate that it is hostile to employees’ NLRA rights, but only that it believes that those rights do not apply in the employer’s workplace. In such a case, the employer’s good faith normally should preclude finding the failure to post to be willful or evidence of antiunion animus. ACC contends that even though the tule states that only a “willful” failure to post the notice may be considered evidence of unlawful motive, in practice the Board will always infer at least constructive notice from the publication of the rule in the Federal Register and the maxim that “ignorance of the law is no excuse.” 164 The Board rejects this contention. The quoted maxim means only that an employer’s actual lack of knowledge of the rule would not excuse its failure to post the notice. It would, however, undercut any suggestion that the failure to post was willful and therefore indicative of unlawful motive. Contrary to numerous comments,'®> finding a willful failure to post the notice as evidence of animus is not the same as adopting a ‘‘presumption of animus” or “‘presumption of unlawful motive.” There is no such presumption. The Board’s general counsel would have the burden of proving that a failure to post was willful. In any event, a willful failure to post would not be conclusive proof of unlawful motive, but merely evidence that could be considered, along with other evidence, in determining whether the general counsel had demonstrated unlawful motive.166 Likewise, contrary to the contentions of ALFA and AHCA, the Board will not assume that any failure Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). 164 See also comment of American Health Care Association (AHCA). 165 See, e.g., comments of FMI and COLLE. 166 The Georgetown law students ask whether, if failure to post the notice may be found to be an unfair labor practice and also may be considered evidence of antiunion animus, such a failure could “satisfy an element of its own violation.” The answer is no, because the failure to post, whether knowing or inadvertent, would be an unfair labor practice regardless of motive; knowing and willful failure to post would be relevant only in cases such as those alleging unlawful discipline, discharge, or refusal to hire, in which motive is an element of the violation. to post the notice is intentional and meant to prevent employees of learning their rights. D. Other Comments The Board received many comments asserting that if the proposed enforcement scheme for failure to post the required notice is adopted, union adherents will tear down the notices in order to harass employers and, particularly, to vitiate 10(b).167 These comments express the concern that tolling the 10(b) period will lead to a flood of unfair labor practice charges, and that, to avoid that eventuality, employers will have to incur significant costs of policing the postings and/or installing expensive tamper-proof bulletin boards.168 In the absence of experience with such postings, the Board deems these concerns speculative at this time. If particular employers experience such difficulties, the Board will deal with them on a case-by-case basis. However, as explained above, tolling is an equitable matter, and if an employer has posted the notice and taken reasonable steps to insure that it remains posted, it is unlikely that the Board would find tolling appropriate. California Chamber and NCAE ask the Board to specify the ‘‘additional remedies” that may be imposed in the event of a notice posting violation. 104.213(a). The Board has broad discretion in crafting remedies for violations of the NLRA. NLHB v. Seven- Up Bottling Co. of Miami, 344 U.S. 344, 346 (1953). The remedies imposed in a given case depend on the nature of the violations and the particular facts in the case. The Board declines to speculate as to every possible remedy that might be imposed in every imaginable set of circumstances. Several comments protest that employers could be fined for failing to post the notice; several others contend that the Board should levy fines instead of imposing the proposed remedies. The 167 See, e.g., comments of Lemon Grove Care & Rehabilitation, numerous “‘postcard’’ comments. 168 One comment asserts that because of the potential for tolling the 10(b) period, “businesses * * * will have to keep records forever[.]” The Board finds no merit in this contention. Employers that are aware of the rule can avoid keeping records “forever” simply by posting the notice. Employers that are not aware of the requirement to post the notice would also be unaware of the possibility of tolling the 10(b) period in the event of a failure to post, and thus would discern no reason to—and probably would not—keep records “‘forever.” Prejudice to the employer because of long-lost records would be considered by the Board in determining whether tolling is appropriate in the particular case. Another comment complains that “the requirement of proof on the employer to ‘certify’ that this posting is up each day is burdensome[.]” There is no such requirement. HOUSE_OVERSIGHT_022307