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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," 155 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.158 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

155 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.160 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.161 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.

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