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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations

refusal to recognize and bargain with
union, evidence of unlawfully
motivated failure to hire). Thus, it is
proper for the Board to consider a
knowing and willful failure to post the
notice as evidence of unlawful motive.
However, the Board has noticed that
it employed somewhat inconsistent
language in the NPRM regarding the
consideration of failure to post the
notice as evidence of antiunion animus.
Thus, the caption of paragraph
104.214(b) reads: ‘‘Knowing
noncompliance as evidence of unlawful
motive.’’ However, the paragraph itself
states that ‘‘If an employer has actual or
constructive knowledge of the
requirement to post the notice and fails
or refuses to do so, the Board may
consider such a willful refusal as
evidence of unlawful motive in a case
in which motive is an issue.’’ (Emphasis
added in both cases.) 75 FR at 80420. In
the preamble to the NPRM, the Board
referred only to knowing noncompliance
as evidence of unlawful motive. 75 FR
at 80414–80415. On reflection, the
Board wishes to clarify this provision to
state that, to be considered as evidence
of unlawful motive, an employer’s
failure to post the notice must be both
knowing and willful—i.e., the employer
must have actual (as opposed to
constructive) knowledge of the rule and
yet refuse, on no cognizable basis, to
post the notice. The Board is revising
the language of the rule accordingly.
The comment that prompted these
revisions urges that there should be no
adverse consequences for the employer
that does not post the notice because it
has a good-faith (but, implicitly,
erroneous) belief that it is not covered
by the NLRA.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

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
to post the notice is intentional and
meant to prevent employees of learning
their rights.

D. Other Comments
The Board received many comments
asserting that if the proposed
enforcement scheme for failure to post
the required notice is adopted, union
adherents will tear down the notices in
order to harass employers and,
particularly, to vitiate 10(b).167 These
comments express the concern that
tolling the 10(b) period will lead to a
flood of unfair labor practice charges,
and that, to avoid that eventuality,
employers will have to incur significant
costs of policing the postings and/or
installing expensive tamper-proof
bulletin boards.168 In the absence of
experience with such postings, the
Board deems these concerns speculative
at this time. If particular employers
experience such difficulties, the Board
will deal with them on a case-by-case
basis. However, as explained above,
tolling is an equitable matter, and if an
employer has posted the notice and
taken reasonable steps to insure that it
remains posted, it is unlikely that the
Board would find tolling appropriate.
California Chamber and NCAE ask the
Board to specify the ‘‘additional
remedies’’ that may be imposed in the
event of a notice posting violation.
104.213(a). The Board has broad
discretion in crafting remedies for
violations of the NLRA. 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

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.

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.

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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