NLRB proposes equitable tolling rule for NLRA notice posting requirements

54034 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 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.15° 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. NLEB, 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. doctrine form “two distinct lines of cases applyl[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.15? 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).15% 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. HOUSE_OVERSIGHT_022305