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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
adheres 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 VII 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 VII); 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);

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