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.nlrb.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
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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
‘‘interfer[ing] with, restrain[ing], or
coerc[ing] 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. 139 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.
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employee rights as well as a remedial
notice. 140 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 coerc[ing]’’ 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). 143
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 NLRB v.
General Motors, above, and
Communications Workers v. Beck,
above, before attempting to obligate
them pursuant to a union-security
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.
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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.,
NLRB 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 th[e
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 Boardrequired
notice is not an unfair labor practice, but
the authorities cited do not support that
proposition.
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unfair labor practice charge is filed
alleging failure to post the notice, ‘‘the
Regional Director will make reasonable
efforts to persuade the respondent
employer to post the * * * notice
expeditiously,’’ and that ‘‘[i]f the
employer does so, the Board expects
that there will rarely be a need for
further administrative proceedings.’’ 75
FR 80419.
Numerous comments assert that
finding the failure to post the notice to
be an unfair labor practice is too harsh
a remedy, especially for small
employers that are more likely to be
excusably unaware of the rule. 146 As
just stated, in practice it should almost
never be necessary for proceedings to
reach that point. For the few employers
that may ultimately be found to have
violated Section 8(a)(1) by failing to post
the notice of employee rights, the only
certain consequences will be an order to
cease and desist and that the notice and
a remedial notice be posted; those
remedies do not strike the Board as
severe.
Michigan Health & Hospital
Association urges that an employer be
allowed to correct an initial failure to
post the notice without further
consequences; Fireside Distributors, Inc.
agrees and asks that technical violations
of the rule not be subject to a finding of
a violation. The Heritage Foundation
backs the same approach for inadvertent
failures to post. The Board disagrees. To
repeat, the Board anticipates that most
employers that inadvertently fail to post
the notice will do so on being informed
of the posting requirement, and that in
those circumstances further proceedings
will rarely be required. However, the
Board believes that this matter is best
handled through the General Counsel’s
traditional exercise of prosecutorial
discretion in accordance with the
directions given here.
California Chamber and NCAE
contend that the Board should specify
the ‘‘reasonable efforts’’ a Regional
Director will make to persuade an
employer to post the notice when a
charge alleging a failure to post has been
filed. They propose that the rule be
amended to state that the Board will
send the employer at least two mailed
letters, with the notice enclosed,
requesting that the employer post the
notice within a specified period of time,
preferably 30 days. They also assert that
the Board must specify the
circumstances in which additional
proceedings will be appropriate. The
Heritage Foundation urges that
§ 104.212(a) be modified to state that if
146 See, e.g., comments of St Mar Enterprises, Inc.
and National Federation of Independent Business.
an employer promptly posts the notice,
‘‘there will be no further administrative
proceedings, unless the Board has
information giving the Board reason to
believe that the preceding failure to do
so was intentional.’’ The Board rejects
these suggestions because they would
create unnecessary obstacles to effective
enforcement of the notice requirement.
That requirement is straightforward, and
compliance should be a simple matter.
The Board believes that the General
Counsel should have discretion to
address particular cases of noncompliance
efficiently and
appropriately, depending upon the
circumstances.
B. Tolling the Section 10(b) Statute of
Limitations
NLRA Section 10(b) provides in part
that ‘‘no complaint shall issue based
upon any unfair labor practice occurring
more than six months prior to the filing
of the charge with the Board[.]’’ 29
U.S.C. 160(b). However, as the Board
stated in the NPRM, the 6-month filing
period does not begin to run until the
charging party has actual or constructive
notice of the allegedly unlawful
conduct. See, e.g., John Morrell & Co.,
304 NLRB 896, 899 (1991), review
denied 998 F.2d 7 (D.C. Cir. 1993)
(table). 75 FR 80414. This makes
intuitive sense, because it would be
unfair to expect charges to be filed
before the charging party could
reasonably have known that the law was
violated. Similar concerns for fairness
justify tolling the statute of limitations
where an employee, although aware of
the conduct in question, is excusably
unaware that the conduct is unlawful
because mandatory notice was not given
to the employee. The Board found that
widespread ignorance of NLRA rights
justified requiring notice to be posted.
The Board cited the observation of the
U.S. Court of Appeals for the Third
Circuit in a case involving the failure to
post the notice required under the
ADEA, that ‘‘[t]he [ADEA] posting
requirement was undoubtedly created
because Congress recognized that the
very persons protected by the Act might
be unaware of its existence.’’ Bonham v.
Dresser Industries, 569 F.2d 187, 193
(1977), cert. denied 439 U.S. 821 (1978).
Accordingly, the Board proposed that
tolling the 10(b) period for filing unfair
labor practice charges might be
appropriate where the required notice
has not been posted. 75 FR 80414. For
the reasons discussed below, the Board
adheres to that view.
Section 10(b) is a statute of
limitations, and statutes of limitations
are presumed to include equitable
tolling whenever the statute is silent or
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ambiguous on the issue. Irwin v. Dep’t
Veterans Affairs, 498 U.S. 89, 94–96
(1990); Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 392–98 (1982); see
Young v. United States, 535 U.S. 43, 49
(2002) (‘‘It is hornbook law that
limitations periods are customarily
subject to equitable tolling, unless
tolling would be inconsistent with the
text of the relevant statute.’’ (quotations
and citations omitted)); Hallstrom v.
Tillamook County, 493 U.S. 20, 27
(1989) (‘‘The running of such statutes is
traditionally subject to equitable
tolling.’’); Honda v. Clark, 386 U.S. 484,
501 (1967); Glus v. Brooklyn E.D.
Terminal, 359 U.S. 231, 232–33 (1959)
(equitable tolling of statutes of
limitations is ‘‘[d]eeply rooted in our
jurisprudence’’); Holmberg v.
Armbrecht, 327 U.S. 392, 396–97 (1946)
(equitable tolling is ‘‘read into every
federal statute of limitation’’).
In Zipes, the Supreme Court held that
the timeliness provision of Title VII’s
charge-filing requirement was ‘‘subject
to waiver, estoppel and equitable
tolling.’’ 455 U.S. at 392–98. The
Supreme Court expressly analogized to
the NLRA, and stated that Section10(b)
was not jurisdictional: ‘‘[T]he time
requirement for filing an unfair labor
practice charge under the National
Labor Relations Act operates as a statute
of limitations subject to recognized
equitable doctrines and not as a
restriction of the jurisdiction of the
National Labor Relations Board.’’ Id. at
n.11. Zipes strongly supports the
proposed rule. The analogy between
Title VII and the NLRA is well
established, and neither the holding of
Zipes regarding Title VII nor Zipes’
characterization of 10(b) has ever been
called into doubt.
Notices of employment rights are
intended, in part, to advise employees
of the kinds of conduct that may violate
their rights so that they may seek
appropriate remedies when violations
occur. Failure to post required notices
deprives employees of both the
knowledge of their rights and of the
availability of avenues of redress.
Accordingly, a substantial majority of
the courts of appeals—including the
First, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, and Eleventh
Circuits—have adopted the doctrine that
the failure to post required employment
law notices may result in equitable
tolling of the statute of limitations.
Mercado v. Ritz-Carlton San Juan Hotel,
410 F.3d 41, 47–48, 95 FEP Cases 1464
(1st Cir. 2005) (Title VII); Bonham v.
Dresser Industries, above, 569 F.2d at
193 (ADEA); Hammer v. Cardio Medical
Products, Inc., 131 Fed. Appx. 829, 831–
832 (3d Cir. 2005) (Title VII and ADEA);
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Vance v. Whirlpool Corp., 716 F.2d
1010 (4th Cir. 1983) (describing notice
posting tolling as ‘‘the prevailing view
of the courts’’); Elliot v. Group Med. &
Surgical Serv., 714 F.2d 556, 563–64
(5th Cir. 1983); EEOC v. Kentucky State
Police Dept., 80 F.3d 1086, 1096 (6th
Cir. 1996), cert. denied 519 U.S. 963
(1996); Posey v. Skyline Corp., 702 F.2d
102 (7th Cir. 1983); Schroeder v. Copley
Newspaper, 879 F.2d 266 (7th Cir.
1989); Kephart v. Inst. Gas Tech., 581
F.2d 1287, 1289 (7th Cir. 1978);
Beshears v. Asbill, 930 F.2d 1348 (8th
Cir. 1991); McClinton v. Alabama By-
Prods. Corp., 743 F.2d 1483 (11th Cir.
1984); see also Henchy v. City of
Absecon, 148 F. Supp. 2d 435, 439 (D.
N.J. 2001); Kamens v. Summit Stainless,
Inc., 586 F. Supp. 324, 328 (E.D. Pa.
1984) (FLSA). 147 (But see Wilkerson v.
Siegfried Ins. Agency, Inc., 683 F.2d
344, 347 (10th Cir. 1982) (‘‘the simple
failure to post [Title VII and ADEA]
notices, without intent to actively
mislead the plaintiff respecting the
cause of action, does not extend the
time within which a claimant must file
his or her discrimination charge.’’))
After careful consideration, the Board
is persuaded that the prevailing judicial
view should apply in the NLRA context
as well. 148 As an equitable concept,
equitable tolling is a matter of fairness.
The Board has determined that many
employees are unaware of their NLRA
rights and has devised a minimally
burdensome means of attempting to
rectify that situation—requiring
employers to post workplace notices
informing employees of those rights. To
bar an employee who is excusably
unaware of the NLRA from seeking a
remedy for a violation of NLRA rights
because he or she failed to file an unfair
labor practice charge within the 10(b)
period, when the employer did not post
the required notice, would unfairly
deprive the employee of the protection
of the Act because of the employer’s
failure to comply with its legal
responsibilities. To deny equitable
tolling in such circumstances ‘‘would
grant to the employee a right to be
informed without redress for violation.’’
Bonham v. Dresser Industries, above,
569 F.2d at 193. 149
147 See comments of Harkin and Miller, AFL–CIO,
and Service Employees International Union (SEIU).
148 The Board has broad discretion to interpret
10(b), including equitable tolling, in accordance
with its experience administering the Act. Lodge 64,
IAM v. NLRB, 949 F.2d 441, 444 (D.C. Cir. 1991)
(deferring to the Board’s interpretation of 10(b)
equitable exceptions).
149 Under the final rule, the Board could also find
the failure to post the notice to be an unfair labor
practice, and could, if appropriate, consider a
willful failure to post to be evidence of unlawful
motive in an unfair labor practice case. However,
The Board received many comments
opposing this proposed rule provision.
Several comments assert that, when a
charging party is unaware of the facts
supporting the finding of an unfair labor
practice, the Board tolls the 10(b) period
only when the charged party has
fraudulently concealed those facts from
the charging party. 150 That is not so.
The Board has long held, with court
approval, that the 10(b) period begins to
run only when the charging party has
notice that the NLRA has been violated.
The party asserting the 10(b) defense
has the burden to show such notice; it
may do so by showing that the charging
party had either actual or constructive
knowledge of the alleged unfair labor
practice prior to the 10(b) period. See,
e.g., Broadway Volkswagen, 342 NLRB
1244, 1246 (2004), enfd. sub nom. East
Bay Automotive Council v. NLRB, 483
F.2d 628, 634 (9th Cir. 2007); University
Moving & Storage Co., 350 NLRB 6, 7,
18 (2007); John Morrell & Co., above,
304 NLRB at 899; Pullman Building
Company, 251 NLRB 1048 (1980), enfd.
691 F.2d 507 (9th Cir. 1982) (table);
Burgess Construction, 227 NLRB 765,
766 (1977), enfd. 596 F.2d 378 (9th Cir.
1978), cert. denied 440 U.S. 940 (1979).
Knowledge may be imputed if the
charging party would have discovered
the unlawful conduct by exercising
reasonable or due diligence. Broadway
Volkswagen, above, 342 NLRB at 1246.
Certainly, the Board has found it
appropriate to toll the 10(b) period
when the charging party was excusably
unaware of the pertinent facts because
the charged party had fraudulently
concealed them; see, e.g., Burgess
Construction, above, 227 NLRB at 766;
but tolling is not limited to such
circumstances. Pullman Building
Company, above, 251 NLRB at 1048.
To the extent that the comments argue
that the Board should not engage in
equitable tolling of the 10(b) period
when an employer has merely failed to
post the notice but not engaged in
fraudulent concealment, 151 the Board
disagrees. Fraudulent concealment
concerns a different kind of equitable
doctrine, and is not directly relevant to
the notice posting equitable tolling
doctrine hereby adopted. See Mercado,
above, 410 F.3d at 46–47 n.8 (employer
misconduct and equitable tolling
in the absence of equitable tolling of the 10(b)
period, such ‘‘redress’’ would not aid an employee
who was excusably unaware of his or her NLRA
rights, failed to file a timely charge, and thus was
denied any remedy for violation of those rights. Cf.
Kanakis Co., 293 NLRB 435, 436 fn. 10 (1989)
(possibility of criminal sanctions against employer
would be little comfort to charging party if deprived
of recourse to Board’s remedial processes).
150 See, e.g., comments of FMI, COLLE.
151 See, e.g., comments of FMI, COLLE.
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doctrine form ‘‘two distinct lines of
cases apply[ing] two distinct standards
to two distinct bases for equitable
tolling’’).
Some comments argue that because
Section 10(b) contains a limited
exception to the 6-month filing period
for employees in the military, it is
improper for the Board to toll the 10(b)
period under other circumstances. 152
The Board rejects this argument as
foreclosed by the Supreme Court’s
holding in Zipes, above, and by the long
line of Board and court decisions
finding tolling of the 10(b) period
appropriate. In any event, the exception
in Section 10(b) for persons in the
military provides that if the aggrieved
person ‘‘was prevented from filing such
charge by reason of service in the armed
forces, in which event the six-month
period shall be computed from the day
of his discharge.’’ This provision does
not toll the six-month period during
armed service; rather, it states that the
six-month period begins at discharge.
See Holland v. Florida, 130 S.Ct. 2549,
2561 (2010) (rejecting argument that
explicit exceptions to time limits in
nonjurisdictional statute of limitations
precluded equitable tolling). 153
A number of comments contend that
tolling the 10(b) period is contrary to the
salutary purpose of statutes of
limitations in general, and 10(b) in
particular, which is ‘‘to require diligent
prosecution of known claims, thereby
providing finality and predictability in
legal affairs and ensuring that claims
will be resolved while evidence is
reasonably available and fresh.’’ 154
Black’s Law Dictionary, 9th Edition, at
1546. The Board recognizes that with
the passage of time evidence can be lost
and witnesses die, move away, or their
memories fade; it therefore will not
lightly find that the 10(b) period should
be tolled. However, like the courts
whose decisions are cited above, the
Board also recognizes that equitable
tolling is a fundamental part of the
statute of limitations, and that inequity
results from barring an individual from
seeking relief from a violation of his or
her NLRA rights where the individual
excusably was unaware of these rights.
After all, the purpose of a statute of
limitations is to ‘‘require diligent
152 See, e.g., comments of California Chamber and
NCAE.
153 American Bus Association v. Slater, 231 F. 3d
1 (D.C. Cir. 2000), cited by California Chamber and
NCAE, did not concern equitable tolling and is
therefore inapposite. The court there also found that
Congress had expressly limited the sanctions
available under the Americans with Disabilities Act
to those enumerated in that statute; such is not the
case under the NLRA.
154 See, e.g., comments of FMI, COLLE, and U.S.
Chamber of Commerce.
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prosecution of known claims,’’ not
claims that are unknown to the injured
party. As to concerns that the statute of
limitations could be tolled for years,
‘‘perhaps indefinitely,’’ 155 the Board
responds that such a potential also
exists under other statutes, as well as
under the NLRA when a charging party
is unaware of the facts giving rise to an
alleged unfair labor practice. However,
at this point, concerns about the
unfairness of lengthy tolling periods are
entirely speculative. Tolling is an
equitable matter, and one factor to be
considered in deciding whether
equitable tolling is appropriate is
whether it would prejudice the
respondent. Mercado, above, 410 F.3d at
48. Accordingly, if a lengthy tolling of
the 10(b) period would prejudice an
employer in a given case, the Board
could properly consider that factor in
determining whether tolling was
appropriate in that case. 156
Several comments argue against
tolling the 10(b) period because
‘‘ignorance of the law is no excuse.’’ 157
This argument is amply refuted by the
court decisions cited above, in which
limitations periods under other
workplace statutes were tolled because
employers failed to post required
notices. Most notably, the Fifth Circuit
has emphasized that the failure to post
a required notice ‘‘vitiates the normal
assumption that an employee is aware
of his rights.’’ Elliot v. Group Med. &
Surgical Serv., 714 F.2d 556, 563–64
(5th Cir. 1983). In any event, the maxim
relied on is generally understood to
have arisen in order to prevent
individuals (usually in criminal cases)
from deliberately failing to ascertain
whether actions they contemplate taking
would be lawful, and then pleading
ignorance when accused of
lawbreaking. 158 In the Board’s view, this
reasoning loses much of its force when
applied to individuals, such as charging
parties in unfair labor practice cases,
who are not accused of any wrongdoing
but who claim to have been injured by
the unlawful actions of other parties.
The Board emphasizes, however, that
failure to post the required notice will
not automatically warrant a tolling
remedy. If an employer proves that an
155 See comments of Fisher & Phillips LLC and
National Grocers Association.
156 As to ACC’s concern that the rule could
potentially subject employers to unfair labor
practice charges based on conduct as far back as
1935, the Board stresses that tolling will be
available only in the case of unlawful conduct that
occurs after the rule takes effect.
157 See, e.g., comments of Coalition for a
Democratic Workplace and COLLE.
158 Moreover, even in criminal law, the principle
is not absolute. See, e.g., Lambert v. California, 355
U.S. 225 (1957).
employee had actual or constructive
knowledge of the conduct alleged to be
unlawful, as well as actual or
constructive knowledge that the
conduct violated the NLRA, and yet
failed to timely file an unfair labor
practice charge, the Board will not toll
the 10(b) period merely because of the
employer’s failure to post the notice. Cf.
John Morrell & Co., above, 304 NLRB at
899.
The Board asked for comments
concerning whether unions filing unfair
labor practice charges should be deemed
to have constructive knowledge of the
unlawful character of the conduct at
issue. All of the comments that
addressed this issue answered in the
affirmative. 159 Unlike most employees,
unions routinely deal with issues
arising under the NLRA and are
therefore more familiar with the Act’s
provisions. Accordingly, the tolling
provisions in the final rule apply only
to charges filed by employees, not those
filed by unions. (The Board still could
toll the 10(b) period if a charging party
union did not discover the facts
underlying the charge within six
months, if the employees reporting
those events failed to alert the union
within that time because they were
excusably unaware of their NLRA
rights.)
Several comments contend that
failure to post the required notice
should not toll the 10(b) period if an
employee who files an unfair labor
practice charge is either a union
member or is represented by a union.
Taft Stettinius & Hollister LLP asserts
that the burden should be placed
equally on unions to ensure that their
organizers and members are aware of
employee rights under the NLRA.
California Chamber and NCAE observe
that knowledge of a filing time limit is
generally imputed to an individual who
is represented by an attorney, see, e.g.,
Mercado v. Ritz-Carlton San Juan Hotel,
above, 410 F.3d at 47–48; they urge that
an employee who is represented by a
union should be treated similarly.
Conversely, three Georgetown
University law students oppose the idea
that union-represented employees
should be deemed to have constructive
knowledge of NLRA rights. They reason
that some workplaces may have
unrepresented as well as represented
employees, and that imputing
knowledge to the latter group would
provide an incentive not to post the
notice, thus depriving the former group
of needed information. The students
159 See, e.g., comments of U.S. Chamber of
Commerce, American Trucking Associations, Taft
Stettinius & Hollister LLP.
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also suggest that some employees,
though represented, may have little
contact with their unions and rely on
workplace notices instead of unions for
relevant information.
The Board finds some merit in both
sets of contentions. On the one hand, it
is reasonable to assume that employees
who are represented by unions are more
likely to be aware of their NLRA rights
than unrepresented employees. And,
although being represented by a union
is not the same as being represented by
legal counsel, it is reasonable to assume
that union officials are sufficiently
conversant with the NLRA to be able to
give employees effective advice as to
their NLRA rights. On the other hand,
some employees, though represented by
unions, may in fact have little contact
with their bargaining representatives for
one reason or other and may, in fact, be
filing charges against their
representative. Thus, the Board does not
find it appropriate under all
circumstances to impute knowledge of
NLRA rights to charge-filing employees
who are union members or are
represented by unions. Rather, the
Board will consider evidence
concerning the union’s representational
presence and activity in determining
whether it is appropriate to toll the
10(b) period.
C. Failure To Post as Evidence of
Unlawful Motive
The Board suggested that it could
consider an employer’s knowing failure
to post the notice as evidence of
unlawful motive in an unfair labor
practice proceeding in which motive is
an issue. 75 FR 80414–80415. A number
of comments assert that the Board
cannot properly take that step. 160 To the
contrary, the Board has often considered
other unlawful conduct as evidence of
antiunion animus in cases in which
unlawful motive was an element of an
unfair labor practice. 161 See, e.g., Leiser
Construction, LLC, 349 NLRB 413, 417–
419 (2007) (threats, coercive statements,
interrogations evidence of unlawfully
motivated failure to hire), enfd. 281 Fed.
Appx. 781 (10th Cir. 2008)
(unpublished); Shearer’s Foods, 340
NLRB 1093, 1094 (2003) (plant closing
threat evidence of unlawfully motivated
discharge); Ferguson-Williams, Inc., 322
NLRB 695, 703, 707 (1996) (threats,
interrogations, creation of impression of
surveillance, evidence of unlawfully
motivated discharge); Champion Rivet
Co., 314 NLRB 1097, 1098 (1994)
(circulating unlawful antiunion petition,
160 See, e.g., comments of COLLE and California
Chamber.
161 See comment of AFL–CIO.
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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. 162 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
rule 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, 165
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
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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. NLRB 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.
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Board rejects both contentions because,
as explained in the NPRM, the Board
does not have the authority to impose
fines. 75 FR 80414, citing Republic Steel
Corp. v. NLRB, 311 U.S. 7, 10–12 (1940).
Another comment argues that the Board
should not provide remedies for failing
to post the notice because such
remedies are not provided under other
statutes. In fact, both remedies and
sanctions are imposed under some
statutes; see, e.g., 29 CFR 1601.30 (fine
of $110 per offense for failing to post
notice under Title VII); 29 CFR
825.300(a)(1) (same sanction for failing
to post notice under FMLA); cases cited
above for tolling of limitation periods
for failing to post notices under several
statutes.
One comment contends that the
proposed remedies were proposed
solely as means of deterring failures to
post the notices, and are therefore
inappropriate; several other comments
assert that the proposed remedies are
punitive. 169 Although the Board
disagrees, there is language in the
NPRM that may have inadvertently
suggested that the enforcement
mechanisms were proposed solely for
deterrent purposes. The Board wishes to
correct any such misimpression. As
stated above, in explaining why it was
proposing those mechanisms, the Board
stated in its NPRM that it was ‘‘mindful
of the need to identify effective
incentives for compliance.’’ 75 FR
80413. Later, referring to tolling the
10(b) period and considering a willful
failure to post the notice as evidence of
unlawful motive, the Board said that it
‘‘proposes the following options
intended to induce compliance with the
notice-posting requirement.’’ Id. at
80414. However, the Board made those
statements while explaining why it had
determined not to rely entirely on
employers’ voluntary compliance with
the rule. (The Board had had little
success in persuading employers to
voluntarily post notices of employee
rights during the critical period leading
up to a representation election.) Id. By
noting that the proposed enforcement
scheme would have some deterrent
effect in that context, the Board did not
mean to imply that it was proposing
those measures solely for deterrence
purposes. For the reasons discussed at
length above, the Board has found that
finding a failure to post the notices to
violate Section 8(a)(1) and, in
appropriate circumstances, to warrant
tolling the 10(b) period and/or inferring
unlawful motive in an unfair labor
practice case are legitimate remedial
169 See, e.g., comments of FMI, ALFA, AHCA.
measures supported by extensive Board
and court precedent.
In addition, in a number of places the
NPRM used the term ‘‘sanctions’’ in a
very loose sense to refer to aspects of the
proposed enforcement scheme,
inadvertently suggesting that this
scheme was punitive. The term
‘‘sanctions’’ was an inapt choice of
descriptor for the enforcement scheme:
the classic 8(a)(1) remedial order has
long been upheld as nonpunitive;
equitable tolling is concerned with
fairness to employees, not punishment
of misconduct, and is fully consistent
with current Board doctrine; and the
animus provision is little more than the
common-sense extension of wellestablished
evidentiary principles that
apply to many other NLRA violations,
and is also not designed to punish
employers. That they may also furnish
incentives for employers to comply with
the notice-posting rule does not detract
from their legitimacy; if it were
otherwise, the Board could never
impose any remedy for violations of the
NLRA if the remedy had a deterrent
effect. In any event, the Board hereby
disavows any suggestion from
statements in the NPRM that the
remedial measures were proposed solely
as penalties.
Contrary to the tenor of numerous
comments opposing this rule, 170 the
Board is not issuing the rule in order to
entrap unwary employers and make
operations more difficult for them
because of inadvertent or technical
violations. It is doing so in order that
employees may come to understand
their NLRA rights through exposure to
notices posted in their workplaces
explaining those rights. Accordingly,
the important thing is that the notices be
posted. As explained above, an
employer that fails to post the notice
because it is unaware of the rule, but
promptly posts the notice when the rule
is brought to its attention, will nearly
always avoid any further proceedings.
Similarly, an employer that posts the
notice but fails initially to comply with
one of the technical posting
requirements will almost always avoid
further problems by correcting the error
when it is called to the employer’s
attention. And if an employer is unsure
of what the rule requires in a particular
setting, it can seek and receive guidance
from the Board.
The Service Employees International
Union and the United Food and
Commercial Workers propose that, in
170 For example, ‘‘This seems to be yet another
trap for the employers. Another avenue to subject
them to law suits and interrogations, and
uneconomic activities and ungodly expenditures.’’
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addition to the proposed enforcement
scheme, the rule state that an
employer’s knowing failure to post the
notice of employee rights during the
critical period before a representation
election shall be grounds for setting the
election aside on the filing of proper
objections. The Board finds that this is
unnecessary, because the Board’s notice
of election, which must be posted by an
employer three working days before an
election takes place, contains a
summary of employee NLRA rights and
a list of several kinds of unfair labor
practices, and failure to post that notice
already constitutes grounds for setting
an election aside. 171 In any event,
during a union organizing campaign, the
union can instruct members of its inplant
organizing committee to verify
whether the notice required under this
rule has been posted; if it has not, the
union can so inform the employer and,
if need be, the Board’s regional office.
Subpart C—Ancillary Matters
Several technical issues unrelated to
those discussed in the two previous
subparts are set out in this subpart.
IV. Dissenting View of Member Brian E.
Hayes
‘‘Agencies may play the sorcerer’s
apprentice but not the sorcerer
himself.’’ 172
Today, my colleagues conjure up a
new unfair labor practice based on a
new statutory obligation. They impose
on as many as six million private
employers the obligation to post a notice
of employee rights and selected
illustrative unfair labor practices. The
obligation to post is deemed enforceable
through Section 8(a)(1)’s proscription of
interference with employees’ Section 7
rights, and the failure to post is further
penalized by equitable tolling of Section
10(b)’s limitations period and the
possible inference of discriminatory
motivation for adverse employment
actions taken in the absence of posting.
While the need for a more informed
constituency might be a desirable goal,
it is attainable only with Congressional
imprimatur. The Board’s rulemaking
authority, broad as it is, does not
encompass the authority to promulgate
a rule of this kind. Even if it did, the
action taken here is arbitrary and
capricious, and therefore invalid,
because it is not based on substantial
evidence and it lacks a reasoned
analysis.
171 See Section 103.20 of the Board’s Rules and
Regulations.
172 Alexander v. Sandoval, 532 U.S. 275, 291
(2001).
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No Statutory Authority for the Proposed
Rule
The majority concedes that the
‘‘National Labor Relations Act does not
directly address an employer’s
obligation to post a notice of its
employees’ rights arising under the Act
or the consequences an employer may
face for failing to do so.’’ In fact, the
NLRA 173 makes no mention of any such
putative obligation. The majority further
acknowledges that the NLRA ‘‘is almost
unique among major Federal labor laws
in not including an express statutory
provision requiring employers routinely
to post notices at their workplaces
informing employees of their statutory
rights.’’ Despite the obvious import of
these admissions, the majority
concludes that the Board’s plenary
authority under Section 6 of the Act to
make rules ‘‘necessary to carry out the
provisions of the Act’’ permits
promulgation of the rule they advocate.
I disagree.
Congress did not give specific
statutory authority to the Board to
require the posting of a general rights
notice when it passed the Wagner Act
in 1935. Just one year earlier, however,
Congress amended the Railway Labor
Act (‘‘RLA’’) to include an express
notice-posting requirement. 45 U.S.C.
152 Eighth; Pub. L. No. 73–442, 48 Stat.
1185, 1188 (1934). As the Supreme
Court noted, the RLA served as the
model for the National Labor Relations
Act. NLRB v. Pennsylvania Greyhound
Lines, 303 U.S. 261 (1938). See also
NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 44 (1937); H. J. Heinz Co. v.
NLRB, 311 U.S. 514, 524–525(1941).
That Congress did not include an
express notice-posting requirement
when passing the Wagner Act the
following year strongly implies, if not
compels, the conclusion that Congress
did not intend for the Board to have
regulatory authority to require such a
notice. Nothing in the legislative history
hints of any concern by Congress about
the need for employers to notify
employees generally of their rights
under the new enacting statute. Since
1935, despite extensive revisions in the
Taft-Hartley Act amendments of 1947
and the Landrum-Griffin Act
amendments of 1959, Congress has
never added such authority.
On the other hand, when Congress
has subsequently desired to include a
general rights notice-posting
requirement, it has done so expressly in
other federal labor and employment
173 Throughout this dissent, I will refer generally
to the statute we administer as the NLRA, unless
the discussion focuses on a specific historical
version, such as the Wagner Act.
laws. See Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C.
2000e–10, the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. 627,
The Occupational Safety and Health
Act, 29 U.S.C. 657(c), the Americans
with Disabilities Act (ADA), 42 U.S.C.
12115, the Family and Medical Leave
Act (FMLA), 29 U.S.C. 2619(a), and the
Uniformed Service Employment and
Reemployment Rights Act (USERRA),
38 U.S.C. 4334(a).
The majority points out that the
Department of Labor (DOL) promulgated
a notice-posting rule under the Fair
Labor Standards Act (FLSA), although
that statute does not contain a specific
statutory provision on workplace
postings. However, the FLSA, unlike the
NLRA, imposes a data-collection and
recordkeeping requirement on
employers. 29 U.S.C. 211(c). DOL’s
Wage and Hour Administrator
promulgated the notice-posting
regulation in 1949 in reliance on this
requirement. It appears that the
propriety of the FLSA rule has never
been challenged, perhaps because,
unlike the rule promulgated herein,
there are no citations or penalties
assessed for the failure to post. This is
a significant point of distinction that
warrants further discussion.
It must be constantly borne in mind
that the rule promulgated today makes
the failure to post the required notice a
violation of the Act. The majority
misleadingly seeks to decouple
obligation from violation in its analysis
by discussing the latter in the context of
enforcement of the assertedly lawful
notice-posting rule. That is nonsense.
Making noncompliance an unfair labor
practice is integral to the rule and,
consequently, integral to an analysis of
whether the notice-posting requirement
is a permissible exercise of the Board’s
rulemaking authority. Of the
aforementioned agencies that have
notice-posting requirements, none of
them makes the failure to post unlawful,
absent additional specific statutory
authorization. Only the RLA, Title VII,
FMLA, and the Occupational Safety Act
(OSHA) have such authorizing language.
ADA, the ADEA, the FLSA, and the
USERRA do not. Consequently, an
employer’s failure to post a notice under
those statutes is not subject to sanction
as unlawful.
Thus, both before and after the
Wagner Act, Congress has consistently
manifested by express statutory
language its intent to impose a general
notice-posting duty on employers with
respect to the rights of employees under
various federal labor laws. Only one
administrative agency promulgated a
notice-posting requirement in the
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absence of such language in its enabling
statute. No agency has made the failure
to comply with a notice-posting
requirement unlawful absent express
statutory authorization, until today.
The explicit inclusion of noticeposting
provisions and permissible
sanctions by Congress in other labor
legislation undercuts the majority’s
claim that this notice-posting rule is not
a ‘‘major policy decision properly made
by Congress alone.’’ Strangely, the
majority does not merely contend that
this pattern in comparable labor
legislation fails to prove that Congress
did not intend that the Board should
have the rulemaking authority under
Section 6 to mandate the notice posting
at issue here. They conversely contend
that it proves Congress must have
intended to confer such authority on the
Board! 174
Perhaps cognizant of the weakness of
this position, the majority attempts to
downplay the import of Congressional
silence on the Board’s authority to
mandate notice posting and to enforce
that mandate through unfair labor
practice sanctions. They cite Cheney
R.R. Co. v. ICC, 902 F. 2d 66, 68–69
(D.C. Cir. 1990), for the proposition that
the maxim ‘‘expressio unius est exclusio
alterius,’’ which holds that the special
mention of one thing indicates an intent
for another thing not be included
elsewhere, may not always be a useful
tool for interpreting the intent of
Congress. Obviously, the usefulness of
this tool depends on the context of a
particular statute. Independent Ins.
Agents of Am., Inc. v. Hawke, 211 F.3d
638 (D.C. Cir. 2000) (applying the
maxim). In my view, the absence of an
express notice provision in the NLRA,
and the failure to amend the Act to
include one when Congress expressly
included notice posting provisions in
other labor statutes, shows that it did
not intend to authorize the Board to
promulgate this rule. 175
Arguing to the contrary, the majority
asserts that the notice-posting rule is
174 Of course, this reasoning would seem to
dictate that the failure of the Board to inform its
own employees of their general rights under the
Federal Labor Relations Act is an unfair labor
practice, even though that statute imposes no such
express requirement. To date, I am not aware that
this agency, or any other, views itself as subject to
such an enforceable obligation.
175 The majority contends that the fact that the
rule comes 76 years after the NLRA was enacted is
not a ‘‘condition of validity.’’ Mayo Foundation for
Medical Education and Research v. United States,
131 S.Ct. 704, 713–14 (2011) (quoting Smiley v.
Citibank (S.D.), N.A., 517 U.S. 735, 740 (1996)
(‘‘neither antiquity nor contemporaneity with the
statute is a condition of validity.’’). I have no
problem with that proposition, but if the Board
lacks statutory authority to promulgate a rule, it is
of no matter that it attempts to do so in year 1 or
year 76 of its existence.
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entitled to deference under the analysis
set forth in Chevron U.S.A. Inc. v.
Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under
Chevron, where Congress has not
‘‘directly addressed the precise question
at issue,’’ id. at 842–843, that
rulemaking authority may be used in
order ‘‘to fill any gap left, implicitly or
explicitly, by Congress.’’ Id. at 843.
Even assuming that the absence of an
explicit posting requirement in the
NLRA is not interpreted as clear
expression of Congressional intent, the
majority fails to persuade that Congress
delegated authority in Section 6 of the
NLRA for the Board to fill a putative
statutory gap by promulgating a rule
that an employer commits an unfair
labor practice by failing to affirmative
notify its employees of their rights
under the NLRA. As the Supreme Court
has explained, ‘‘the ultimate question is
whether Congress would have intended,
and expected, courts to treat [the
regulation] as within, or outside, its
delegation to the agency of ‘gap-filling’
authority.’’ Long Island Care at Home,
Ltd. v. Coke, 551 U.S. 158, 173 (2007).
There is no doubt that there are many
gaps and ambiguities in the NLRA that
Congress intended for the Board to
address, using its labor expertise, either
through adjudication or rulemaking.
However, the existence of ambiguity in
a statute is not enough per se to warrant
deference to the agency’s interpretation
of its authority in every respect. The
ambiguity must be such as to make it
appear that Congress either explicitly or
implicitly delegated authority to cure
that ambiguity. Am. Bar Ass’n v. FTC,
430 F.3d 457, 469 (D.C. Cir. 2005);
Motion Picture Ass’n of America, Inc. v.
FCC, 309 F. 3d 796, 801 (D.C. Cir. 2002)
(‘‘MPAA ’’) (‘‘agency’s interpretation of
[a] statute is not entitled to deference
absent a delegation of authority from
Congress to regulate in the areas at
issue.’’).
Thus, even when an administrative
agency seeks to address what it believes
is a serious interpretive problem, the
Supreme Court has said that the agency
‘‘may not exercise its authority ‘in a
manner that is inconsistent with the
administrative structure that Congress
enacted into law.’ ’’ FDA v. Brown &
Williamson Tobacco Corp., 529 U.S.
120, 125(2000) (quoting ETSI Pipeline
Project v. Missouri, 484 U.S. 495,
517(1988)). Further, the statute at issue
must be considered as a ‘‘symmetrical
and coherent regulatory scheme.’’
Gustafson v. Alloyd Co., 513 U.S. 561,
569, 115 S.Ct. 1061, 131 L.Ed.2d 1
(1995). In our case, the exercise of
rulemaking authority under Section 6 is
not self-effectuating; it must be shown
to relate reasonably to some other
provision as part of the overall statutory
scheme contemplated by Congress. 176
Nothing in the text or the regulatory
structure of the NLRA suggests that the
Board has the authority to promulgate
the notice-posting rule at issue in order
to address a gap in the statutory scheme
for resolving questions concerning
representation through Section 9, or in
preventing, through Sections 8 and 10,
specifically enumerated unfair labor
practices that adversely affect
employees’ Section 7 rights. On the
contrary, it is well-established that the
Board lacks independent authority to
initiate or to solicit the initiation of
representation and unfair labor practice
proceedings, and Section 10(a) limits
the Board’s powers to preventing only
the unfair labor practices listed in
Section 8 of the Act. Yet the majority
asserts that it may exceed these
limitations by requiring employers to
post a notice of employee rights and
illustrative unfair labor practices at all
times, regardless of whether a petition
had been filed or an employer has been
found to have committed an unfair labor
practice.
The majority’s reliance on a
combination of Section 7, 8, and 10
warrants special mention. They reason
that an employer interferes with Section
7 rights in general, and thereby violates
Section 8(a)(1), by failing to give
continuous notice to employees of those
rights. It may be a truism that an
employee must be aware of his rights in
order to exercise them, but it does not
follow that it is the employer under our
statutory scheme who must provide
enlightenment or else incur liability for
violating those rights. The new unfair
labor practice created by the rule bears
no reasonable relation to any unfair
labor practice in the NLRA’s preexisting
enforcement scheme developed
over seven decades. 177 It certainly bears
176 See, e.g., Mourning v. Family Publications
Service, Inc., 411 U.S. 356, (1973) Unlike here, the
Federal Reserve Board easily met this standard in
Mourning when issuing a disclosure regulation
under the Truth in Lending Act, even though that
Act did not explicitly require lenders to make such
disclosures. In sustaining the regulation, the Court
found the regulation to be within the Federal
Reserve’s rulemaking authority and, in light of the
legislative history, the disclosure requirement was
not contrary to the statute. ‘‘The crucial distinction,
* * * [was that] the disclosure requirement was in
fact enforced through the statute’s pre-existing
remedial scheme and in a manner consistent with
it.’’ Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 94 (2002).
177 The Senate report on the Wagner bill stressed
that unfair labor practices were ‘‘strictly limited to
those enumerated in section 8. This is made clear
by paragraph 8 of section 2, which provides that
‘The term ‘unfair labor practice’ means unfair labor
practice listed in Section 8,’’ and by Section 10(a)
empowering the Board to prevent any unfair labor
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no relation to the few examples the
majority can muster in Board precedent.
The only instance with even a passing
resemblance to the rights notice-posting
requirement here is the requirement that
a union give notice of Beck 178 and
General Motors 179 rights. However, the
failure to give such a notice is not per
se unlawful. It becomes an unfair labor
practice only when a union, without
giving notice, takes the affirmative
action of seeking to obligate an
employee to pay fees and dues under a
union-security clause. 180 Beyond that, a
union has no general obligation to give
employees notice of their Beck and
General Motors rights; much less does it
violate the NLRA by failing to do so. By
contrast, the rule promulgated today
imposes a continuing obligation on
employers to post notice of employees’
general rights and, even absent any
affirmative act involving those rights,
makes the failure to maintain such
notice unlawful. 181
Unlike my colleagues, I find that the
Supreme Court’s opinion in Local 357,
Teamsters v. NLRB, 365 U.S. 667 (1961),
speaks directly to this point. In that
case, the Board found a hiring hall
agreement unlawfully discriminatory
per se because, even though it included
an express anti-discrimination
practice ‘‘listed in Section 8.’’ Thus, ‘‘[n]either the
National Labor Relations Board nor the courts are
given any blanket authority to prohibit whatever
labor practices that in their judgment are deemed
to be unfair.’’ S. Rep. No. 573, 74th Cong., 1st Sess.
17 (1935) at 8–9 reprinted in Legislative History of
the National Labor Relations Act of 1935, Vol. II at
2307–2308 (1985).
178 Communications Workers v. Beck, 487 U.S.
735 (1988).
179 NLRB v. General Motors, 373 U.S. 734 (1963).
180 California Saw & Knife Works, 320 NLRB 224,
233 (1995).
181 None of the FMLA cases cited by the majority
support finding that a failure to post a general
notice of employee rights under the NLRA is
unlawful. In Bachelder, the Ninth Circuit actually
found ‘‘unavailing’’ the employer’s argument that it
had satisfied all its specific FMLA notice
obligations because it had complied with the
FMLA’s general posting rule. Id. at 1127, fn. 5.
Rather, the court found that because the employer
failed to ‘‘notify’’ an employee which of the four
FMLA’s ‘‘leave year’’ calculation methods it had
chosen, the employer ‘‘interfered’’ with that
employee’s rights and, therefore, improperly used
the employee’s FMLA covered absences as a
‘‘negative factor’’ when taking the affirmative
adverse action of discharging her.
Similarly, in neither Greenwell v. Charles
Machine Works, Inc., 2011 WL 1458565 (W.D.Okla.,
2011); Smith v. Westchester County, 769 F. Supp 2d
448 (S.D.N.Y. 2011), was the FMLA general posting
requirement at issue. Smith did not involve a notice
issue and Greenwell involved the employer’s failure
to comply with a different notification obligation
under the FMLA.
In any event, as previously stated, FMLA
expressly provides that employers give notice to
employees of rights thereunder and expressly
provides for sanctions if notice is not given. The
NLRA does neither.
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provision, it did not include two
additional provisions that the Board
declared were necessary to prevent
‘‘unlawful encouragement of union
membership.’’ The Court disagreed,
stating
Perhaps the conditions which the Board
attaches to hiring-hall arrangements will in
time appeal to the Congress. Yet, where
Congress has adopted a selective system for
dealing with evils, the Board is confined to
that system. National Labor Relations Board
v. Drivers, etc. Local Union, 362 U.S. 274,
284–290, 80 S.Ct. 706, 712–715, 4 L.Ed.2d
710. Where, as here, Congress has aimed its
sanctions only at specific discriminatory
practices, the Board cannot go farther and
establish a broader, more pervasive
regulatory scheme. 182
Congress in Section 8(a)(1) aimed its
sanctions only at employer actions that
interfere with the exercise of Section 7
rights. By this rulemaking, my
colleagues go farther and establish a
broader, more pervasive regulatory
scheme that targets employer inaction,
or silence, as unlawful interference. As
Local 357 instructs, they lack the
authority to do this. 183
American Hospital Association v.
NLRB, 499 U.S. 606 (1991) (AHA), upon
which the majority heavily relies,
illustrates a valid exercise of authority
under Section 6. In AHA, the Supreme
Court unanimously upheld the Board’s
health care unit rule, finding that
Section 6’s general grant of rulemaking
authority ‘‘was unquestionably
sufficient to authorize the rule at issue
in this case unless limited by some
other provision in the Act.’’ Id. at 609–
10 (emphasis added). The Court further
found that the rule was clearly
consistent with authority under Section
9(b) to make appropriate bargaining unit
determinations. It specifically rejected
the argument that language in 9(b)
directing the Board to decide the
appropriate bargaining unit ‘‘in each
case’’ limited its authority to define
appropriate units by rulemaking.
Congress expressly authorized the
Board in Section 9(b) to determine
appropriate bargaining units and the
Board exercised its rulemaking
authority to promulgate a rule
‘‘necessary to carry out’’ Section 9(b). In
contrast, as previously stated, there is
no reasonable basis for finding that a
rule making it unlawful for employers to
fail to post and maintain a notice of
employee rights and selected illustrative
182 365 U.S. at 676.
183 My colleagues attempt to distinguish Local
357 as limited to an interpretation of Sec. 8(a)(3)
and 8(b)(2)’s prohibition of discriminatory
practices. That may have been the issue before the
Court, but I do not view the quoted rationale as so
limited.
unfair labor practices is necessary to
carry out any substantive section of the
NLRA. Nevertheless, the majority
construes AHA as an endorsement of
deference to the exercise of Section 6
rulemaking authority whenever
Congress did not expressly limit this
authority. This is patently incorrect. ‘‘To
suggest, as the [majority] effectively
does, that Chevron deference is required
any time a statute does not expressly
negate the existence of a claimed
administrative power * * *, is both
flatly unfaithful to the principles of
administrative law * * * and refuted by
precedent.’’ Railway Labor Executives’
Ass’n v. National Mediation Bd., 29
F.3d 655, 671 (D.C.Cir.1994) (citation
omitted). Were courts ‘‘to presume a
delegation of power absent an express
withholding of such power, agencies
would enjoy virtually limitless
hegemony, a result plainly out of
keeping with Chevron and quite likely
with the Constitution as well.’’ Id.
In sum, the majority’s notice rule does
not address a gap that Congress
delegated authority to the Board to fill,
whether by rulemaking or adjudication.
The Supreme Court has made clear that
‘‘[w]here Congress has in the statute
given the Board a question to answer,
the courts will give respect to that
answer; but they must be sure the
question has been asked.’’ NLRB v.
Insurance Agents’ Int’l Union, 361 U.S.
419, 432–433 (1960). The Supreme
Court also has made clear: ‘‘[Congress]
does not * * * hide elephants in
mouseholes.’’ Whitman v. American
Trucking Associations, 531 U.S. 457,
468 (2001).
My colleagues’ action here is
markedly like the Federal Trade
Commission (FTC) regulation rejected as
ultra vires by the court of appeals in
Am. Bar Ass’n v. FTC, supra. The FTC
issued a ruling that attorneys engaged in
certain practices were financial
institutions subject to the privacy
provision of the Gramm-Leach-Bliley
Act (GBLA). Upon review of the
detailed statutory scheme at issue, the
court found it ‘‘difficult to believe that
Congress, by any remaining ambiguity,
intended to undertake the regulation [of
a subject] * * * and never mentioned
[it] in the statute.’’ 430 F.3d at 469. The
court further opined that to find the
FTC’s interpretation to be ‘‘deferenceworthy,
we would have to conclude that
Congress not only had hidden a rather
large elephant in a rather obscure
mousehole, but had buried the
ambiguity in which the pachyderm
lurks beneath an incredibly deep mound
of specificity, none of which bears the
footprints of the beast or any indication
that Congress even suspected its
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presence.’’ Id. No such conclusion was
possible in that case. No such
conclusion is possible here. Quite
simply, the Board lacks statutory
authority to promulgate a rule that
imposes a new obligation on employers
and creates a new unfair labor practice
to enforce it.
The Rule Is Arbitrary and Capricious
Even if the Board arguably has
rulemaking authority in this area,
deference is unwarranted under
Chevron and the Administrative
Procedure Act if the rule promulgated is
‘‘arbitrary or capricious in substance, or
manifestly contrary to the statute.’’
United States v. Mead Corp., 533 U.S.
218, 227 (2001). Also see AHA, 499 U.S.
at 618–20 (applying arbitrary and
capricious standard in its consideration
of the Board’s rule on acute care
hospital bargaining units). ‘‘Normally,
an agency rule would be arbitrary and
capricious if the agency has relied on
factors which Congress has not intended
it to consider, entirely failed to consider
an important aspect of the problem,
offered an explanation for its decision
that runs counter to the evidence before
the agency, or is so implausible that it
could not be ascribed to a difference in
view or the product of agency
expertise.’’ Motor Vehicle Mfg. Ass’n of
the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). ‘‘[T]he
agency must examine the relevant data
and articulate a satisfactory explanation
for its action including a ‘rational
connection between the facts found and
the choice made.’ ’’ Id. (quoting
Burlington Truck Lines v. United States,
371 U.S. 156, 168 (1962)). See also
Business Roundtable et al. v. S.E.C.,—
F.3d—, 2011 WL 2936808 (D.C. Cir.,
July 22, 2011) (finding SEC acted
arbitrarily and capriciously by relying
on insufficient empirical data
supporting its rule and by completely
discounting contrary studies).
In AHA, the Board’s health care
bargaining units rule was supported by
‘‘the extensive record developed during
the rulemaking proceedings, as well as
its experience in the adjudication of
health care cases during the 13-year
period between the enactment of the
health care amendments and its notice
of proposed rulemaking.’’ AHA, 499
U.S. at 618. The Supreme Court upheld
the validity of the rule finding it ‘‘based
on substantial evidence and supported
by a ‘‘reasoned analysis.’’ Id. at 619
(citing Motor Vehicle Mfrs. Ass., 463
U.S. at 57).
By contrast, the majority’s articulation
of the need to mandate that employers
violate Section 8(a)(1) unless they post
a notice of employee rights is not based
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on substantial evidence, nor does it
provide a satisfactory explanation for
the choice they have made. They
contend that a mandatory notice posting
rule enforceable through Section 8(a)(1)
is needed because they believe that most
employees are unaware of their NLRA
rights and therefore cannot effectively
exercise those rights. This belief is
based on: (1) Some studies indicating
that employees and high school
students about to enter the work force
are generally uninformed about labor
law; (2) an influx of immigrants in the
labor force who are presumably also
uninformed about labor law; (3) the
current low and declining percentage of
union-represented employees in the
private sector, which presumably means
that unions are less likely to be a source
of information about employee rights;
and (4) the absence of any general legal
requirement that employers or anyone
else inform employees about their
NLRA rights. 75 FR 80411.
Neither the Notice of Proposed
Rulemaking nor today’s notice
summarizing comments in response to
that notice come anywhere close to
providing a substantial factual basis
supporting the belief that most
employees are unaware of their NLRA
rights. As for the lack of high school
education on this subject, we have only
a few localized studies cited in a 1995
journal article by a union attorney. 184
With respect to the assumption that
immigrants entering the work force, we
have even less, only anecdotal accounts.
For that matter, beyond the cited journal
article, almost all supposed factual
support for the premise that employees
are generally unaware of their rights
comes in comments received from
individuals, union organizers, attorneys
representing unions, and immigrant
rights and worker assistance
organizations agreeing, based on
professed personal experience, that
most employees (obviously not
including most of the employee
commenters) are unfamiliar with their
NLRA rights. There are, as well,
anecdotal accounts and comments from
employers, employer associations and
184 Peter D. DeChiara, ‘‘The Right to Know: An
Argument for Informing Employees of Their Rights
under the National Labor Relations Act,’’ 32 Harv.
J. on Legis. 431, at 436 and fn. 28 (1995).
In the Notice of Proposed Rulemaking, the
majority also relied on two articles by Professor
Charles J. Morris, a co-petitioner for notice-posting
rulemaking: ‘‘Renaissance at the NLRB—
Opportunity and Prospect for Non-Legislative
Procedural Reform at the Labor Board,’’ 23 Stetson
L. Rev. 101, 107 (1993); and ‘‘NLRB Protection in
the Nonunion Workplace: A Glimpse at a General
Theory of Section 7 Conduct,’’ 137 U. Pa. L. Rev.
1673, 1675–1676 (1989). Professor Morris did not
refer to any specific evidence supporting a belief
that employees lack knowledge of their rights.
management attorneys to the opposite
effect that the employees know about
their rights under the Act, but my
colleagues find these less persuasive.
In any event, the partisan opinions
and perceptions, although worthy of
consideration, ultimately fail as
substantial evidence supporting the
Board majority’s initial premise for
proposing the rule. There remains the
Board’s conclusion that the decline in
union density provides the missing
factual support. The majority explains
that there was less need for a posting of
information about NLRA rights when
the union density was higher because
‘‘friends and family who belonged to
unions’’ would be a source of
information. This is nothing more than
supposition. There is no empirical
evidence of a correlation between union
density and access to information about
employee rights, just as there are no
broad-based studies supporting the
suppositions about a lack of information
stemming from high school curricula or
the influx of immigrants in the work
force.
At bottom, the inadequacy of the
record to support my colleagues’ factual
premise is of no matter to them. In
response to comments contending that
the articles and studies they cite are old
and inadequately supported, they glibly
respond that the commenters ‘‘cite no
more recent or better supported studies
to the contrary,’’ as if opponents of the
proposed rule bear that burden. Of
course, it is the agency’s responsibility
to make factual findings that support its
decision and those findings must be
supported by substantial evidence that
must examine the relevant data and
articulate a satisfactory explanation for
its action. Burlington Truck Lines, 371
U.S. at 167.
Even more telling is the majority’s
footnote observation that there is no real
need to conduct a study of the extent of
employees’ knowledge of NLRA rights
because the notice posting rule would
be justified even if only 10 percent of
the workforce lacked such knowledge.
This statement betrays the entire factual
premise upon which the rulemaking
initiative was purportedly founded and
reveals a predisposition to issue the rule
regardless of the facts. This is patently
‘‘arbitrary and capricious.’’
Even assuming, if we must, that there
is some factual basis for a concern that
employees lack sufficient information
about their NLRA rights, the majority
also fails to provide a rational
explanation for why that concern
dictates their choice made to address
that concern. Why, for instance, was a
noncompulsory information system,
primarily reliant on personal union
communications, sufficient when the
Wagner Act was passed, but not now?
The union density levels for 1935 and
today are roughly the same. 185 Why at
a time when the Board champions its
new Web site and the Acting General
Counsel continues to encourage the
regional outreach programs initiated by
his predecessor, do my colleagues so
readily dismiss the Board’s role in
providing information about rights
under the statute we administer? For
that matter, why are the numerous
employee, labor organizer, and worker
advocacy groups whose comments
profess awareness of these rights unable
to communicate this information to
those who they know lack such
awareness? Is the problem one of access
or message? Would a reversal of the
union density trend or an increase in
petition and charge filings be the only
reliable indicators of increased
awareness?
I would think that a reasoned
explanation for the choice of a sweeping
rule making it unlawful for employers to
fail to post and maintain notice of
employee rights would at least include
some discussion of these questions and
attempt to marshal more than a
fragmented and inconclusive factual
record to support their choice. The
majority fails to do so. Their rule is
patently arbitrary and capricious.
Executive Order 13496
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The majority mentions in passing
Executive Order 13496 186 and the DOL
implementing regulation 187 mandating
that Federal contractors post a notice to
employees of NLRA rights that is in
most respects identical to the notice at
issue here. Their consideration of this
administrative action should have led
them to the understanding that they lack
the authority to do what the President
and DOL clearly could do to advance
essentially the same policy choice.
The authority to require that
contractors agree to post an NLRA
employee rights notice as part of doing
business with the Federal government
comes both from the President’s
authority as chief executive and the
specific grant of Congressional authority
in the Federal Property and
Administrative Services Act, 40 U.S.C.
101 et seq. There was no need or
attempt to justify the promulgation of
the notice-posting rule by relying on
evidence that employees lacked
knowledge of their rights. Moreover, in
185 Mayer, Gerald, ‘‘Union Membership Trends in
the United States’’ (2004). Federal Publications.
Paper 174, Appendix A. http://
digitalcommons.ilr.cornell.edu/key_workplace/.
186 74 FR 6107 (Feb. 4, 2009).
187 75 FR 28368 (May 20, 2011).
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the notice of a final rule, DOL rejected
commenters’ contentions that the
Executive Order and implementing
regulation were preempted by the
Board’s jurisdiction under the Garmon
doctrine. 188 Necessarily, this meant that
DOL believed that the rule requiring
federal contractors to post the employee
rights notice did not involve any rights
protected by Section 7 of the Act, such
as a right to receive such information
from their employer, or conduct
prohibited by the Act, such as the
employer’s failure to provide such
information.
Not only does my colleagues’
rulemaking action today contradict
DOL’s preemption analysis, but its flaws
are manifest in comparison to the DOL’s
rule and the authority enabling it.
Conclusion 189
Surely, no one can seriously believe
that today’s rule is primarily intended to
inform employees of their Section 7
right to refrain from or to oppose
organizational activities, collective
bargaining, and union representation.
My colleagues seek through
promulgation of this rule to reverse the
steady downward trend in union
density among private sector employees
in the non-agricultural American
workforce. Theirs is a policy choice
which they purport to effectuate with
the force of law on several fronts in
rulemaking and in case-by-case
adjudication. In this instance, their
action in declaring that employers
violate the law by failing to inform
employees of their Section 7 rights is
both unauthorized and arbitrary and
capricious. Regardless of the arguable
merits of their policy choice or the
broad scope of Chevron deference and
the Board’s rulemaking authority, I am
confident that a reviewing court will
soon rescue the Board from itself and
restore the law to where it was before
the sorcerer’s apprentice sent it askew.
V. Regulatory Procedures
A. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., requires
agencies promulgating final rules to
prepare a final regulatory flexibility
analysis and to develop alternatives
188 San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236, 244 (1959)
189 Because I find the rule is invalid, I find it
unnecessary to comment on the content of the
notice or the consequences, other than finding an
unfair labor practice, if an employer fails to post the
required notice. For the reasons stated in my
dissenting opinion in J. Picini Flooring, 356 NLRB
No. 9 (2010), I also disagree with the rule’s
requirement that certain employers must also
electronically distribute the notice.
wherever possible, when drafting
regulations that will have a significant
impact on a substantial number of small
entities. The focus of the RFA is to
ensure that agencies ‘‘review draft rules
to assess and take appropriate account
of the potential impact on small
businesses, small governmental
jurisdictions, and small organizations,
as provided by the [RFA].’’ E.O. 13272,
Sec. 1, 67 FR 53461 (‘‘Proper
Consideration of Small Entities in
Agency Rulemaking’’). However, an
agency is not required to prepare a final
regulatory flexibility analysis for a final
rule if the agency head certifies that the
rule will not, if promulgated, have a
significant economic impact on a
substantial number of small entities. 5
U.S.C. 605(b). Based on the analysis
below, in which the Board has
estimated the financial burdens to
employers subject to the NLRA
associated with complying with the
requirements contained in this final
rule, the Board has certified to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA) that this
rule will not have a significant
economic impact on a substantial
number of small entities.
The primary goal of this rule is
notifying employees of their rights
under the NLRA. This goal is achieved
through the posting of notices by
employers subject to the NLRA of the
rights of employees under the NLRA.
The Board will make the notices
available at no cost to employers; there
are no information collection, record
keeping, or reporting requirements.
The Board estimates that in order to
comply with this rule, each employer
subject to the NLRA will spend a total
of 2 hours during the first year in which
the rule is in effect. This includes 30
minutes for the employer to learn where
and how to post the required notices, 30
minutes to acquire the notices from the
Board or its Web site, and 60 minutes
to post them physically and
electronically, depending on where and
how the employer customarily posts
notices to employees. The Board
assumes that these activities will be
performed by a professional or business
worker, who, according to Bureau of
Labor Statistics data, earned a total
hourly wage of about $32.20 in March
2011, including fringe benefits. 190 The
190 Source: U.S. Department of Labor, Bureau of
Labor Statistics, ‘‘Economic News Release,’’ Table
B–8, June 3, 2011 (available at http://www.bls.gov).
(The Board is administratively informed that BLS
estimates that fringe benefits are approximately
equal to 40 percent of hourly wages. Thus, to
calculate total average hourly earnings, BLS
multiplies average hourly wages by 1.4. In March,
2011, average hourly wages for professional and
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Board then multiplied this figure by
2 hours to estimate the average costs for
employers to comply with this rule
during the first year in which the rule
is in effect. Accordingly, this rule is
estimated to impose average costs of
$64.40 per employer subject to the
NLRA (2 hours × $32.20) during the first
year. 191 These costs will decrease
dramatically in subsequent years
because the only employers affected
will be those that did not previously
satisfy their posting requirements or that
have since expanded their facilities or
established new ones. Because the final
rule will not require employers to post
the notice by email, instant messaging,
text messaging, and the like, the cost of
compliance should be, if anything,
somewhat less than the Board
previously estimated.
According to the United States Census
Bureau, there were approximately 6
million businesses with employees in
2007. Of those, the SBA estimates that
all but about 18,300 were small
businesses with fewer than 500
employees. 192 This rule does not apply
to employers that do not meet the
Board’s jurisdictional requirements, but
business workers were $23.00. Table B–8.
Accordingly, the Board multiplied that number by
1.4 to arrive at its estimate of $32.20 average hourly
earnings, including fringe benefits.) In the NPRM,
the Board estimated hourly earnings of $31.02,
based on BLS data from January 2009. 75 FR 80415.
The estimate has been updated to reflect increases
in hourly earnings since that time. Those increases
have been relatively minor, and do not affect the
Board’s conclusion that the economic impact of the
rule will not be significant; see discussion below.
191 The National Roofing Contractors Association
asserts (without support) that ‘‘federal agencies
have a notoriously poor track record in estimating
the costs of new regulations on businesses’’; it
therefore predicts that ‘‘the actual cost for many
employers could be considerably higher.’’ The
Board recognizes that some employers, generally
firms with extensive and/or multiple facilities, may
incur initial compliance costs in excess of the
Board’s estimate. For example, a company with
multiple locations may require more than 30
minutes to physically post the notices on all of its
various bulletin boards. The Board’s estimate,
however, is an average for all employers; many
small employers, especially those with only one
facility and/or limited electronic communication
with employees, may incur lower compliance costs.
In this regard, however, contrary to numerous
comments, such as that of St Mar Enterprises, Inc.,
the Board does not expect that the rule will be
‘‘very burdensome’’ for businesses with more than
one facility. Normally, such firms should have to
learn about the rule’s requirements and acquire the
notices only once, no matter how many facilities are
involved. The same should be true for electronic
posting: downloading the notice and posting it on
an employer’s Web site normally should have to be
done once for all facilities. Thus, the only
additional costs involved for multi-facility firms
should be those of physically posting the notices at
each facility.
192 Source: SBA Office of Advocacy estimates
based on data from the U.S. Department of
Commerce, Bureau of the Census, and trends from
the U.S. Department of Labor, Bureau of Labor
Statistics, Business Employment Dynamics.
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the Board does not have the means to
calculate the number of small
businesses within the Board’s
jurisdiction. Accordingly, the Board
assumes for purposes of this analysis
that the great majority of the nearly 6
million small businesses will be
affected, and further that this number is
a substantial number within the
meaning of 5 U.S.C. 601. However, as
discussed below, because the economic
impact on those employers is minimal,
the Board concludes that, under 5
U.S.C. 605, the final rule will not have
a significant economic impact on any
small employers.
The RFA does not define ‘‘significant
economic impact.’’ 5 U.S.C. 601. In the
absence of specific definitions, ‘‘what is
‘significant’ * * * will vary depending
on the problem that needs to be
addressed, the rule’s requirements, and
the preliminary assessment of the rule’s
impact.’’ See A Guide for Government
Agencies: How to Comply with the
Regulatory Flexibility Act, Office of
Advocacy, U.S. Small Business
Administration at 17 (available at
http://www.sba.gov) (SBA Guide). As to
economic impact and whether it is
significant, one important indicator is
the cost of compliance in relation to
revenue of the entity or the percentage
of profits affected. Id. at 17. More
specifically, the criteria to be considered
are:
• Whether the rule will lead to longterm
insolvency, i.e., regulatory costs
that significantly reduce profits;
• Whether the rule will lead to shortterm
insolvency, i.e., increasing
operating expenses or new debt more
than cash reserves and cash flow can
support, causing nonmarginal firms to
close;
• Whether the rule will have
disproportionate effects, placing small
entities at a significant competitive
disadvantage; and
• Whether the rule will result in
inefficiency, i.e., in social costs to small
entities that outweigh the social benefits
resulting from the rule. Id. at 26.
Applying these standards, the Board
concludes that the economic impact of
its notice-posting rule on small
employers is not significant. The Board
has determined that the average cost of
complying with the rule in the first year
for all employers subject to the NLRA