NLRB proposes tolling rules for unfair labor practice charges and discusses employer notice requirements

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54035 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,” 15> 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.15? 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 455 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. 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.16° 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.16 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. HOUSE_OVERSIGHT_022306