54034 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations Vance v. Whirlpool Corp., 716 F.2d The Board received many comments __ doctrine form “two distinct lines of 1010 (4th Cir. 1983) (describing notice opposing this proposed rule provision. cases applyling] two distinct standards posting tolling as “the prevailing view Several comments assert that, when a to two distinct bases for equitable of the courts”’); Elliot v. Group Med. & charging party is unaware of the facts tolling’). Surgical Serv., 714 F.2d 556, 563-64 supporting the finding of an unfair labor Some comments argue that because (5th Cir. 1983); EEOC v. Kentucky State practice, the Board tolls the 10(b) period Section 10(b) contains a limited Police Dept., 80 F.3d 1086, 1096 (6th only when the charged party has exception to the 6-month filing period Cir. 1996), cert. denied 519 U.S. 963 fraudulently concealed those facts from for employees in the military, it is (1996); Posey v. Skyline Corp., 702 F.2d _ the charging party.15° That is not so. improper for the Board to toll the 10(b) 102 (7th Cir. 1983); Schroeder v. Copley The Board has long held, with court period under other circumstances.152 Newspaper, 879 F.2d 266 (7th Cir. approval, that the 10(b) period begins to The Board rejects this argument as 1989); Kephart v. Inst. Gas Tech., 581 run only when the charging party has foreclosed by the Supreme Court’s F.2d 1287, 1289 (7th Cir. 1978); notice that the NLRA has been violated. holding in Zipes, above, and by the long Beshears v. Asbill, 930 F.2d 1348 (8th The party asserting the 10(b) defense line of Board and court decisions Gir. 1991); McClinton v. Alabama By- has the burden to show such notice; it —_ finding tolling of the 10(b) period Prods. Corp., 743 F.2d 1483 (11th Cir. may do so by showing that the charging appropriate. In any event, the exception 1984); see also Henchy v. City of party had either actual or constructive in Section 10(b) for persons in the Abs