NLRB Notice Posting Rule and Statute of Limitations Tolling Discussion

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54033 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 non- compliance 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 acheres 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 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 VI 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 VID; 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); HOUSE_OVERSIGHT_022304