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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
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institutions should be excluded from
coverage if they are nonprofit and hold
themselves out to the public as being
religious.
The Board examines jurisdictional
issues on a case-by-case basis, and the
Board's jurisdiction jurisprudence is
highly complex. The Board has asserted
jurisdiction over some religiously-
affiliated employers in the past, but has
declined to assert jurisdiction over other
religiously-affiliated employers. See,
e.g., Ecclesiastical Maintenance Service,
320 NLRB 70 (1995), and St. Edmund's
High School, 337 NLRB 1260 (2002). In
Ukiah Valley Medical Center, the Board
found that neither the First Amendment
nor the Religious Restoration Act
precludes the Board from asserting
jurisdiction over a religiously-affiliated
employer. 332 NLRB 602 (2000). If an
employer is unsure whether the Board
has jurisdiction over its operations, it
may contact the Board's regional office.
In its comment, the United Stated
Postal Service points out that it has
different statutory rules from those
covering other private sector employees.
Labor relations in the Postal Service are
governed by Chapter 12 of the Postal
Reorganization Act of 1970, 39 U.S.C.
1201 et seq. Section 1209(a) of the
Postal Reorganization Act generally
makes the NLRA applicable to all
employee-management relations "to the
extent not inconsistent with the
provisions of this title." As raised by the
comment, there are indeed several areas
in which the Postal Reorganization Act
is inconsistent with the NLRA. The
principal differences are that an agency
shop is prohibited (id. section 1209(a))
and that postal employees may not
strike. Id. Section
410(b)(1)(incorporating 5 U.S.C. 7311).
In light of these differences, the Board
agrees that a postal worker-specific
notice is necessary. The Board,
however, does not wish to create a
notice without the benefit of specific
public comment on this issue.
Accordingly, the Board will exclude the
United States Postal Service from
coverage under the final rule; the Board
may, at a later date, request comments
on a postal worker-specific notice.
Subpart B-Enforcement and
Complaint Procedures
Subpart B of the rule contains
procedures for enforcement of the
employee notice-posting requirement. In
crafting Subpart B, the Board was
mindful of the need to identify an
effective remedy for noncompliance
with the notice-posting requirement.
The Board gave careful consideration to
several alternative approaches to
enforcing the rule's notice-posting

requirements. Those alternatives, not all
of which are mutually exclusive, were
(1) Finding the failure to post the
required notices to be an unfair labor
practice; (2) tolling the statute of
limitations for filing unfair labor
practice charges against employers that
fail to post the notices; (3) considering
the willful failure to post the notices as
evidence of unlawful motive in unfair
labor practice cases; (4) voluntary
compliance. 75 FR 80413-80414.
As explained in the NPRM, the Board
considered but tentatively rejected
relying solely on voluntary compliance.
This option logically would appear to be
the least conducive to an effective
enforcement of the notice-posting
requirement, and the Board's limited
experience with voluntary posting of
notices of employee rights seems to
confirm this. When an election petition
is filed, the Board's Regional Office
sends the employer Form NLRB-5492,
Notice to Employees, together with a
leaflet containing significant "Rights of
Employees." See the Board's
Casehandling Manual, Part Two—
Representation Proceedings, Section
11008.5, found on the Board's Web site,
http://www.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

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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