USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-1618

CHRISTINE KELLEY,

Petitioner, Appellant,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent, Appellee.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

____________________

Before

Selya, Circuit Judge,

_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Margaret J. Palladino,
_______________________

with

whom

Sherburne, Powers & Needham, P.C.,

____________________________________

Tamara E. Goulston,
____________________

were on

brief

for petition

appellant.

Christopher W. Young, Attorney, with whom Frederick L. Feinste

____________________
_____________________
General
Sher,
____

Counsel,
Associate

Frederick C. Havard,
____________________
General Counsel,

and

Supervisory

Attorney, Li
__

Aileen A. Armstrong,
____________________

Dep

Associate

General Counsel,

National Labor

Relations Board,

were

brief for respondent, appellee.

Jay M. Presser, Audrey J. Samit,
_______________ _________________
P.C., on
____

brief

for intervenor,

and Skoler, Abbott & Press

_______________________

appellee Dun

Services, Inc.

____________________

March 26, 1996

____________________

& Bradstreet

Softw

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

the requirements

with

the

for

filing unfair

National

Labor

This appeal concerns

labor practice

Relations

Board

Plaintiff-appellant Christine Kelley ("Kelley")

of

Board

complaint

order

against

Software ("DBS"),

Kelley's

dismissing

her

intervenor-appellee

her former employer.

Dun

("Board").

seeks review

labor

&

practice

Bradstreet

The Board dismissed

complaint for failure to serve a copy of the charge

underlying the

complaint

within the

prescribed by

section 10(b) of the

Act

29 U.S.C.

("Act"),

decision.

unfair

charges

160(b).

six-month time

National Labor Relations

We affirm

Jurisdiction stems from 29 U.S.C.

I.
I.

period

the Board's

160(f).

BACKGROUND
BACKGROUND
__________

DBS, a company which develops

software, employed Kelley

facility until April

terminated from her

at its Framingham,

1993.

On April 12,

Massachusetts,

1993, Kelley

sales representative position.

after her termination, Kelley

her

and markets computer

retained counsel to

in an unlawful termination suit against DBS.

was

Shortly

represent

Kelley, by

her counsel, sent an August 30, 1993, letter to DBS alleging,

inter
_____

alia, that
____

it terminated her

concerted activities

with

because she

other employees

from changing its food service provider.

a $120,000.00 settlement,

engaged in

to dissuade

DBS

The letter demanded

stating that the

settlement offer

-22

would

be withdrawn if DBS failed to respond by September 17,

1993.

It also notified DBS of Kelly's intent to pursue legal

remedies in the event of failed negotiations.

After postponing,

which a

response to the

at DBS's

request,

settlement offer was

the date

by

due, Kelley's

attorney

contacted DBS

proceedings

attorney

regarding

against it.

informed

DBS

the

On September

that

she

initiation of

27, 1993,

would

legal

Kelley's

commence

legal

proceedings to ensure that Kelley complied with the six-month

statute

Act.

of limitations

On October

prescribed by

1, 1993, Kelley's

procedures for filing unfair

section 10(b)

of the

attorney discussed

the

labor practice charges with the

Board information officer for Region 1 and specifically asked

whether her

client was

responsible for

copy of the charge filed against it.

informed

her that the regional

serving DBS

with a

The information officer

office would mail the charge

to DBS.

On October

practice charge

6, 1993,

Kelley filed an

unfair labor

with the Board's regional office, contending

that

the

DBS terminated her

Act, 29

U.S.C.

in violation of

158(a)(1), which

section 8(a)(1) of

makes it

an unfair

labor practice for employers to "interfere with, restrain, or

coerce employees in the exercise

[the Act]."

29 U.S.C.

of the rights guaranteed by

158(a)(1).

attorney served or attempted to serve

-33

Neither Kelley

nor her

DBS with a copy of the

charge.

And due to personnel changes in the regional office,

the Board did not mail DBS a copy of the charge until October

13, 1993, one day after

prescribed by

the Act

appellant filed on

1994.

See
___

the six-month statute of limitations

elapsed.

An

July 7, 1994, was

amended charge,

served on DBS

which

July 8,

Truck Drivers & Helpers Union v. NLRB, 993

______________________________________

F.2d

990, 1000 n.12 (1st Cir. 1993)("A complaint based on a timely

filed

charge may be amended to include other allegations . .

. .").

Despite the untimely service of the initial charge,

the Board's General Counsel issued a complaint against DBS on

July 20, 1994.

See id.

The complaint, which was accompanied

___ ___

by

notice of

brought

against

violated

November 7,

DBS,

1994,

alleged

section 8(a)(1)

of

hearing on

that

Kelley's

the Act.

the

claims

termination

Pursuant

to

the

Board's complaint, DBS filed an answer admitting in part, and

denying in

part, the

complaint allegations and

raising the

affirmative defense that Kelley's action was time-barred.

October 5, 1994, DBS

filed a joint Motion

Motion for Summary Judgment

to Dismiss and

On

with the Board, maintaining that

Kelley's complaint should be dismissed because the underlying

charge,

though timely

six-month limitations

October

briefs

filed, was served

period

established by

17, 1994, both the General

opposing

DBS's motion,

one day

after the

statute.

On

Counsel and Kelley filed

contending

that the

demand

-44

letter sent to DBS

that

DBS's

provided actual notice of the

section 10(b)

delay

in

responding

Kelley's reliance on

Board

procedure.

should

be equitably

to the

tolled because

settlement

the information officer's

DBS filed

a reply

charge and

brief on

demand

of

and

statement of

October 21,

1994.

On

October 31,

1994,

the Board

issued an

order

transferring the proceeding to the Board and a Notice to Show

Cause why DBS's motion should

not be granted.

1995,

of the

three-member

panel

Board

On April

concluded

27,

that

Kelley's complaint should be dismissed for failure to serve a

copy of the charge within

prescribes.

the six-month period section 10(b)

Emphasizing the statutory policy against holding

respondents liable for conduct occurring more than six months

earlier,

the

circumstances

Board

present

conclusion

that

satisfied."

It

the

found

that

in this

statutory

noted that

there

case

that

service

are

"no

special

would warrant

requirement

neither Kelley nor

was

the General

Counsel

alleged

fraudulently

that

conceal

alleged violation.

F.2d

746, 752

section 10(b)

DBS

the

(1st Cir.

1988).

and section

effectuating

operative

evade

facts

service

underlying

or

the

See Kale v. Combined Ins. Co. of Am., 861

___ ________________________________

Regulations, 29 C.F.R.

for

attempted to

timely

It also

102.14 of

noted that

the Board's

both

Rules and

102.14, place primary responsibility

service

-55

on

the

charging

party,

rejecting claims

that the

statute should be

tolled because

Kelley detrimentally relied on the Board employee's statement

of procedure.

II.
II.

DISCUSSION
DISCUSSION
__________

We

are faced with two issues on appeal.

The first

involves section 10(b)'s charge-content requirements and asks

us

to consider

within

whether a

the statute

of

demand letter

limitations period

mailed to

provides

a party

actual

notice

within

concerns the

may

the meaning

be

period.

1993, settlement

delay in

employed

letter sent

on the

to

The

second issue

equitable principles

toll

Appellant argues

within the meaning of

her reliance

Act.

circumstances under which

appropriately

limitations

of the

section

that the

to DBS provided

the Act and, in the

August 30,

actual notice

alternative, that

Board employee's information

responding to her settlement

10(b)'s

and DBS's

offer warrant tolling

of the statute.

Both the Board and DBS, as intervenor, contend that

the Board correctly dismissed

They

assert

service

that

within the

Kelley

did not

meaning

neither DBS's conduct nor

Kelley's claim as time-barred.

of the

effectuate

Act

constructive

and maintain

that

the misinformation provided by the

Board

employee

and

detrimentally

relied

upon

by

Kelley

-66

warrant tolling of the statute.

absent

It is well-established that,

special circumstances, unfair

must be both

filed and

date of the alleged

labor practice charges

served within six

statutory violation.

months after

See NLRB

the

v. Local

___ ______________

264, Laborers' Int'l Union of N. Am., 529 F.2d 778, 783 (8th
_____________________________________

Cir. 1976); see also

___ ____

NLRB v. Warrensburg Bd. & Paper Corp.,

______________________________________

340 F.2d 920, 925 (2d Cir. 1965)("Only proof of extraordinary

circumstances

strict

will cause

compliance

with

the reviewing

the

Board's

court to

regulations

find that

was

not

required.").

Standard of Review
Standard of Review
__________________

When

review

the

reviewing unfair

Board's

labor

interpretation

practice orders,

of

the

Act

and

we

its

requirements for a "'reasonably defensible construction'" and

review the Board's application of its rules "'for rationality

and consistency with

the Act.'" NLRB v. Manitowoc Eng'g Co.,

___________________________

909 F.2d 963, 971 n.10

(7th Cir. 1990)(citing cases),

denied sub nom. Clipper City Lodge No. 516 v. NLRB, 498
______ ___ ___ __________________________________

1083 (1991); see also

___ ____

"we will not

Truck Drivers, 993 F.2d at 995.

_____________

cert.
_____

U.S.

While

'rubber stamp'" Board decisions, NLRB v. Int'l

______________

Bhd. of Elec. Workers, Local 952, 758 F.2d 436, 439 (9th Cir.
________________________________

1985),

we "must

enforce

the

Board's

order if

the

Board

correctly applied the law and if the Board's findings of fact

are

supported by

whole."

substantial

evidence on

the record

as a

Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22 (1st

______________________________

-77

Cir.), cert. denied, 464 U.S. 892 (1983)(citing cases); Union

_____ ______
_____

Builders, Inc. v. NLRB, 68 F.3d 520, 522 (1st Cir. 1995); see
______________________
___

also 29
____

U.S.C.

respect

to questions

evidence

manner

160(f)("[T]he findings

of

fact if

on the record considered

be conclusive.").

application of section

Absent a

of the

supported by

as a whole

Board with

substantial

shall in like

finding that the Board's

102.14 was "so arbitrary as to defeat

justice," we are

accorded the

obligated, by

Board and

the deference

its rules

disturb the Board's decision.

Supplies v. NLRB, 931 F.2d

_________________

and

traditionally

regulations, not

to

Father & Sons Lumber & Bldg.

_____________________________

1093, 1096 (6th

Cir. 1991); see

___

NLRB v. United Food & Commercial Workers Union, Local 23, 484
________________________________________________________

U.S. 112, 123 (1987); Strickland v. Maine Dep't of Health and

_______________________________________

Human Services, 48 F.3d 12, 17 (1st Cir.), cert. denied, 116

_______________
_____ ______

S. Ct. 145 (1995).

Enactment and Administration of Section 10(b)

Enactment and Administration of Section 10(b)
_____________________________________________

Section 10(b)

limitations, subject

operates as an

ordinary statute

to recognized equitable

of

doctrines, and

not as a

jurisdictional restriction.

Airlines, Inc., 455 U.S.

______________

Zipes v. Trans World

_____________________

385, 395 n.11 (1982)(citing cases);

see NLRB v. Crafts Precision Indus., Inc., 16

___ _______________________________________

(1st

Cir.

F.3d 24,

26

1994); NLRB v. Silver Bakery, Inc. of Newton,

__________________________________________

Massachusetts,
_____________

351

enacted as part

372, 49 Stat. 449

F.2d 37,

39

(1st

Cir. 1965).

of the Wagner Act, Act of

July 5, 1935, ch.

(1935), without a specific time

-88

First

limit for

filing

and serving

amended

to include

1947.

charges, the

section 10(b)

six-month statute

proviso was

of limitations

Laborer's Int'l Union, 529 F.2d at 781-85;

______________________

Hartley Act Amendments,

Stat. 136.

Act of

June 23, 1947,

see Taft___

ch. 120,

In pertinent part, section 10(b) provides:

Whenever

it is

charged that

any person

has engaged in or is engaging in any such

unfair

labor practice, the Board, or any

agent or
for

agency designated by

such purposes,

issue and

cause to

the Board

shall have

power to

be served upon

such

person a complaint stating the charges in

that respect, and containing a

notice of

hearing

before the

thereof, or before

Board

or

member

a designated agent or

in

61

agency, at

place therein

less than five days after

said

complaint:

complaint

shall

fixed,

the serving of

Provided,
________
issue

not

based

That

no

upon

any

unfair labor practice occurring more than

six

months prior

to

charge with the Board

a

copy thereof

the filing

of the

and the service of

upon the

person against

whom such charge is made

. . . .

29

U.S.C.

160(b).

discourage dilatory

and to "bar

been

recollections

NLRB,
____

witnesses

of the events in

. . .'"

362 U.S.

time limitation to

filing of unfair labor

litigation over past events

destroyed,

confused .

Congress added the

have

gone

practice charges

'after records have

elsewhere,

and

question have become dim and

Local 1424, Int'l Ass'n of Machinists v.

________________________________________

411, 419

(1960)(quoting H.R. Rep.

No. 245,

80th

at 39.

Cong., 1st Sess. 40); see Silver Bakery, Inc., 351 F.2d
___ ___________________

Under current law, the section 10(b) period begins to

run when the "aggrieved individual

has actual notice that an

-99

unfair labor practice has been committed."

NLRB,
____

887 F.2d

739,

745

(7th

Cir.

Esmarck, Inc. v.
________________

1989).

An

adverse

employment decision provides such notice.

Id. at 745-46.
___

Congress entrusted the Board with

for

interpreting

the

practice claims.

U.S.

Act

and

broad discretion

adjudicating

(1969).

To effectuate

the purposes of

10(b) proviso, the

Board has promulgated

and

See
___

regulations.

Edition); see also

___ ____

authority . . .

labor

See generally Commercial Workers Union, 484

_____________ ________________________

at 118-22; NLRB v. Rutter-Rex Mfg. Co.,

____________________________

262-63

unfair

29 C.F.R.

29 U.S.C.

ch.

396 U.S. 258,

the section

a series of

I, pt.

156 ("The

102

rules

(7-1-95

Board shall

have

to make, amend, and rescind . . . such rules

and regulations as may be

necessary . . . .").

Chief among

these is section 102.14, which provides:

Upon

filing

of a

charge,

the charging

party shall be responsible for the timely

and proper service of a copy thereof upon
the

person against

made.

The

against
shall

to

charge is

regional director will,

matter of course,
charge

whom such

be

cause a

served

upon

whom the charge

not

be

copy of

deemed

the

as a
such
person

is made, but he
to

assume

responsibility for such service.

29

C.F.R.

102.14 (1995);

see
___

also
____

29

(1995)(investigation of charges)("[T]imely

of the charge .

charging

section

. . is

party and not

102.14,

C.F.R.

service of a copy

the exclusive responsibility of

of the Regional

charging

parties

-1010

101.4

Director.").

such as

appellant

the

Under

bear

primary responsibility for

charges.

While standard

that regional

the

charge

Kelley must

filed against

them,

ultimately ensure

See
___

practice

Board operating procedure dictates

offices serve charged

timely if mailed or

period.

service of unfair labor

parties with a

charging

copy of

parties such

timely service.

as

Charges are

personally served within the limitations

29 C.F.R.

102.113(a);

see
___

also West v.
____ ________

Conrail, 481 U.S. 35, 38 n.3 (1987).

_______

In

light of

the 1947

amendments made

to section

10(b) and Congress's intent to place practical time limits on

the

investigation and prosecution of unfair labor practices,

Laborer's Int'l Union,

______________________

529

F.2d at

782-83,

we hold

that

section 102.14 is both a rational and reasonable exercise

the

Board's discretion

102.14

comports

subjecting

months

the

charged parties

after

practice.

with

and rulemaking

the

to place

to suits

the

of an

alleged

Section

policy

brought more

think it unreasonable,

the Board's rather liberal

proviso,

congressional

occurrence

We do not

authority.

of

against

than six

unfair

labor

given this and

construction of the section 10(b)

ultimate

responsibility for

timely

service

on the shoulders of

adjudicatory procedures

F.2d 917, 926

the party who

in motion.

(6th Cir.),

See NLRB v. Wiltse, 188

___ _______________

cert. denied sub

_____ ______ ___

Press v. NLRB, 342 U.S. 859 (1951).

_____________

-1111

sets the Board's

nom. Ann Arbor

____ __________

Because we find that section 102.14 is a reasonable

exercise

of the Board's

relief may

only be

statute by

providing

authority, appellant's

granted if

appellant complied

constructive

within the section 10(b) period

service

of

We

now consider

with the

her

charge

or the circumstances of this

case are such that an application of equitable

warranted.

request for

whether, on the

principles is

facts of

this

case, either ground for tolling the statute exists.

Actual Notice and Section 10(b)'s Service Requirement

Actual Notice and Section 10(b)'s Service Requirement
_____________________________________________________

Appellant

spirit,

maintains that

if

not

the

letter,

of

requirement

and

that

the

Board,

she

complied

section

with

10(b)'s

therefore,

the

service

erroneously

dismissed her complaint.

the August 30,

notice of the

More specifically, she asserts that

1993, demand letter provided

charges against it.

DBS with actual

Both the

Board and

DBS

notice

of a

reject this contention.

The

basic

proposition

that

actual

charge may, in certain circumstances, satisfy section 10(b)'s

requirements is undisputed.

See Hospital & Service Employees

___ ____________________________

Union v. NLRB, 798 F.2d 1245, 1249 (9th Cir. 1986).

_____________

did

not intend unfair labor

the

same "standards

lawsuit."

(1959).

practice charges to

applicable to a

investigative

of

machinery in

a charge

motion,

be held to

pleading in

NLRB v. Fant Milling Co.,

___________________________

The purpose

Congress

is

360 U.S.

to set

not to

the

a private

301,

307

Board's

provide a

full

-1212

explication of the allegations leveled against

Charges

are generally recorded

the Board's

and function

regional office, see

___

primarily as

on a blank

29 C.F.R.

a mechanism for

a party.

Id.
___

form provided by

101.2 (1995),

extracting early

and concise statements

and charging

C.F.R.

designed

underlying a

to

101.4.

give

charge.

1249; see 29 C.F.R.

___

service

30,

1993,

are not at all

demand letter

substantive

issues

F.2d at

persuaded that the

satisfies

section 10(b)'s

First, despite appellant's assertions

it is

service

accomplished

containing

the

102.15 (1995).

to the contrary,

be

of

on the other hand,

Service Employees Union, 798

________________________

requirements.

may

Complaints,

notice

Nonetheless, we

August

by the charged

parties. See Service Employees Union, 798 F.2d

___ ________________________

at 1249; 29

are

of the positions held

not settled that

similar information.

by

two

charge filing

different

The Board's

and

documents

Statements of

Procedures and Rules and Regulations clearly require

service

with

a copy

of the

See,
___

e.g.,
____

29

charge actually

C.F.R.

101.4,

observation that the Board's

filed with

102.14.

the Board.

Appellant's

Statements of Procedures do not

require charges to be filed on a specific form has no bearing

on this.

be

See 29 C.F.R.
___

accomplished with

filed

with

the Board,

101.2.

a charge

we find

-1313

But even if service could

which differs

that

from the

the August

one

30, 1993,

demand

letter

lacks the

specificity typically

required of

charges brought pursuant to the Act.

The

claims against

August 30,

1993,

DBS, which

letter advances

include

unfair labor

a host

of

practices,

gender discrimination, and violation of the Federal Equal Pay

Act,

U.S.C.

29 U.S.C.

2000e

206(d)(1), the Federal Civil Rights Act, 42

et seq., and
__ ____

Act, Mass. Gen. L. ch. 93,

the Massachusetts Equal

102, 103.

Rights

It does not focus on

the section 8(a)(1) violation and, thus, does not comply with

the

Board's requirement

concise statement

of

unfair

labor practices

102.12

(1995).

the

facts

provide a

constituting

affecting

the

commerce."

that a charge was

Because the letter was

before appellant filed

alleged

29 C.F.R.

actually filed with

mailed more than a month

her charge, it

only notified DBS

the possibility that a charge would be filed.

v. Singer Co., 710

_____________

possibility

"clear and

Moreover, it did not, as the Board correctly

notes, provide notice

the Board.

that charges

Compare Bihler
_______ ______

F.2d 96 (3d Cir. 1983)(letter

of legal action not

of

an EEOC charge).

discussing

This, we

think, falls short of what section 10(b) contemplates.

The Ninth Circuit's decision

Employees Union v. NLRB,

_________________________

798

in Hospital & Service

__________________

F.2d 1245

(9th

Cir. 1986),

provides

no leverage

Ninth Circuit

for appellant's

did hold that actual

10(b)'s service

requirements, 798

position.

While the

notice satisfies section

F.2d at 1249,

it reached

-1414

that

conclusion

on the

basis of

set of

facts entirely

different from

court

the one with which we are now presented.

disregarded

received by

was both

the

that the

the employer in that case

issued and served within

period and there was

Id. at 1249.
___

in this

fact

case

elapsed.

were

the six-month limitations

the employer.

In contrast, both the charge and the

were issued

after

never

because the complaint

no claim of prejudice to

Additionally,

Union, after
_____

charges

The

the section

the employer

complaint

10(b)

period

in Service Employees
__________________

hearing from an unofficial

source that charges

had been

filed, contacted the Board

into its

employment practices within the limitations period.

Unlike

DBS,

proceedings

which

had been

did

not

about the investigation

formally

initiated against

learn

it until

that

Board

after the

six-month period prescribed by the Act had run, that employer

received actual notice within the meaning of section 10(b).

For

the reasons

which appellant

just stated,

seeks to rest

the other

cases on

her argument, Buckeye Mold &

_______________

Die Corp., 299 N.L.R.B. 1053 (1990), and Freightway Corp. and
_________
____________________

Kaplan Enter., Inc.,

_____________________

299

N.L.R.B. 531

(1990),

are

also

inapposite.

Buckeye, a case decided by the Board, explicitly

_______

adopts

Ninth Circuit's

Union.
_____

not

filed

the

reasoning in

Buckeye, 299 N.L.R.B. at 1053.

_______

reach cases in which

and

served outside

the charge and

of

Service Employees
_________________

Accordingly, it does

complaint are both

the limitations

period.

It

-1515

stands for the narrow holding that noncompliance with section

10(b)'s requirements for charge filing can be cured by timely

service

of

complaint.

Id.
___

Appellant's

reliance

on

Freightway also falls short of the mark.

__________

That case held that

service

charge

of

an

unsigned

copy

of

within

the

limitations

period

satisfies

10(b) neither requires

signed copy of

whom the

531.

the statute

be mailed to

allegations were made.

not,

section

that the original signed charge nor a

that charge

It does

because

the party

against

Freightway, 299 N.L.R.B. at

__________

however, address

whether

service and

filing can be accomplished by different original documents or

what the contents of each document should be.

That Kelley's charge was

the section 10(b)

not

seriously

served only one day after

deadline makes this a hard case.

prejudiced

by

Kelley's

untimely

Nevertheless, we are unwilling to stretch

to

find that

against

DBS

it when

requirements

for

had actual

appellant

notice

has failed

charge content

and

DBS was

service.

existing precedent

of the

charge

filed

to

comply with

the

has

not cleared

the

hurdle of

was

demonstrating that either her

filed

within

the

limitations

charge or complaint

period.

The

Board's

conclusion that appellant did not comply with section 10(b)'s

service requirements,

the

record.

in spirit

or letter, is

See Simon v. Kroger Co., 743

___ ____________________

supported by

F.2d 1544, 1546

(11th Cir. 1984), cert. denied, 471 U.S. 1075 (1985)("We find
_____ ______

-1616

that the intent, spirit, and plain

require

language of section 10(b)

that a complaint be both filed and served within the

six month limitations period.").

Equitable Estoppel And Tolling Under Section 10(b)

Equitable Estoppel And Tolling Under Section 10(b)
__________________________________________________

Section

subject to

n.11.

been

cases

10(b)'s statute

equitable modification.

Two alternate,

developed to

in

which

of limitations

period is

Zipes, 455 U.S.

_____

at 395

though closely related, doctrines have

resolve

the relatively

equitable

modification

equitable estoppel and equitable tolling.

small number

is

of

appropriate:

Kale, 861 F.2d at

____

752;

see also Guidry v. Sheet Metal Worker's Nat'l Pension

___ ____ ______________________________________________

Fund, 493 U.S.

____

announce

365, 376 (1990)("[C]ourts should

be loath to

equitable exceptions to legislative requirements or

prohibitions

that

are

unqualified

by

statutory

Earnhardt v. Commonwealth of Puerto Rico, 691

__________________________________________

text.");

F.2d 69,

71

(1st Cir. 1982)("Courts have taken a uniformly narrow view of

equitable exceptions to . .

are appropriate only to

. limitations periods.").

avoid injustice in particular cases.

See Heckler v. Community Health Services, 467

___ ______________________________________

(1984);

see also
___ ____

They

U.S. 51,

59

Cerbone v. Int'l Ladies Garment Worker's

__________________________________________

Union, 768 F.2d 45, 47-48 (2d Cir. 1985).

_____

Courts invoke equitable estoppel when a defendant's

conduct causes

a plaintiff

pursuing a claim he or

to delay

bringing an

action or

she was entitled to initiate

Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 61

__________________________________

by law.

(2d Cir.

-1717

1986).

In

applied when

the

section 10(b)

a plaintiff's

context,

it is

untimely filing is

most

often

caused by

defendant's deceptive

the

defendant's

conduct or by

reasonable reliance

misleading representations

on

or information.

See, e.g., Barnard Eng'g Co., Inc., 295 N.L.R.B. 226 (1989);
___ ____ ________________________

see also Kale,

___ ____ ____

861 F.2d at

1022, 1028 (1st Cir.

plaintiff

relies

changes his or

on

752; Lavery v. Marsh, 918

________________

1990).

It

his

or her

her position

Health Services,
________________

467 U.S.

is not employed unless

adversary's

for the worse.

at 59;

see also
___ ____

conduct

See
___

F.2d

the

and

Community
_________

Precious Metal
______________

Assoc., Inc. v. Commodity Futures Trading Comm'n,

__________________________________________________

620 F.2d

900, 908 (1st Cir. 1980)(citing Bergeron v. Mansour, 152 F.2d

___________________

27, 30 (1st Cir. 1945)).

Equitable

tolling,

in

contrast,

encompasses

broader

range

"appropriate

of conduct,

only

when

plaintiff to miss a

hands."

1990),

the

the

circumstances

at 752,

that

and is

cause

[or her]

Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.

_____________________

cert. denied, 498 U.S.

_____ ______

characterized

doctrine

by some

whom it

administrative

is

actual

is invoked

employed, such

agency.

notice of

1026 (1991).

Cases in which

are most

often

by the

party

affirmative misconduct

Id.
___

factors in assessing claims

of

F.2d

filing deadline are out of his

equitable tolling

against

Kale, 861
____

the

Courts

as

an employer

or

generally weigh

an

five

for equitable tolling: "(1) lack

filing requirement;

(2)

lack of

-1818

constructive

knowledge

of

the

filing

requirement;

(3)

diligence in pursuing one's

rights; (4) absence of prejudice

to

a plaintiff's

the defendant;

remaining

and (5)

ignorant of

the notice

reasonableness in

requirement."

Kale, 861
____

F.2d at 752-53 (citing cases).

Appellant

asserts that

grounds for

applying both

the equitable estoppel and

in

this case.

We

equitable tolling doctrines exist

find no basis

for appellant's contention

that equitable estoppel is appropriate because DBS caused the

delay

in the

makes it

filing of her

apparent

that the

charge.

delay,

In

fact, the record

with respect

to

DBS's

conduct at least, was caused by appellant's counsel's attempt

to obtain

a pre-charge settlement from

course, disparage settlement strategies

by appellant's

consistent

counsel.

with

the

DBS.

We

of the sort employed

Prompt disposition of

purposes

of

the

do not, of

Act,

disputes is

see
___

Employees Union, 798 F.2d

_______________

at 1249, and the interests

legal system as a

whole.

But,

pursue

settlement

an

early

Service
_______

of our

having made the decision

with DBS,

appellant,

who

to

is

represented

on appeal by

the same counsel

who prepared the

August 30, 1993, demand letter and who represented her before

the

Board, cannot

reasonably

expect

defects in her settlement strategy.

us

now to

by appellant's

-1919

the

Though DBS requested an

extension beyond the September 17, 1993, settlement

initially established

cure

counsel,

deadline

there is

no

evidence in the record

or

unfairly led

settle.

Compare
_______

appellant to

784

F.2d at 61.

initiating

believe

Cerbone, 768
_______

settlement promise);

(1989)(perjured

that it engaged in

deceptive conduct

that it

F.2d at

48-50 (reliance

Kanakis Co., Inc.,

___________________

testimony by

Nothing

relevant to

negotiations

and

to file

293

defendant); see
___

N.L.R.B.

on

50

also Dillman,
____ _______

precluded appellant's counsel from

Board proceedings

every moment

intended to

against DBS;

this appeal to

a charge

appellant's counsel notified DBS,

with

she was

free at

suspend settlement

the Board.

That

on September 27, 1993, she

was withdrawing the settlement offer and taking steps to file

a charge with the Board highlights this point.

Appellant's position was not

substantially changed

by the ten-day delay in filing worked by DBS's request for an

extension of

time.

settlement offer made

When appellant's attorney

to DBS, more

withdrew the

than two weeks

remained

within the section 10(b) period, enough time for appellant to

both file

Thus,

a charge with the

Board and serve a

to the extent that this case

was outside of

supports the

copy on DBS.

may involve a delay that

appellant's control, we find that

Board's conclusion

that it

the record

was not

caused by

DBS.

The contention

invoked

question.

against the

It

that

Board,

is axiomatic

equitable tolling

however, presents

that "the

grounds

should

be

different

for tolling

-2020

statutes of limitations are more limited in suits against the

government .

. .

."

Swietlik v. United States, 779

__________________________

1306, 1311 (7th Cir. 1985);

864 F.2d 226,

F.2d

see generally Falcone v. Pierce,

___ _________ _________________

228-29 (1st Cir.

1988).

The

main thrust

of

appellant's equitable tolling argument

the

untimely service of her

the

employee who failed to

is that the blame for

charge lies with

inform her attorney that section

102.14 places the ultimate responsibility

on the charging party.

employee specifically

the Board and

She alleges, in

for charge service

fact, that the Board

instructed her attorney

not to

serve

DBS with a copy of the charge.

Although

statement

of

we

Board

misleading, we do

agree

procedure was

the

Board

incomplete

not agree that the delay at

case can be wholly attributed to

Board.

that

employee's

and

perhaps

issue in this

an error on the part of the

The record shows that the Board employee neglected to

call appellant's

attention to

section 102.14, but

does not

support

appellant's

explicitly

Thus,

contention

prohibited from

to the extent

serving

that the Board

that

DBS

her

with

did commit

counsel

the

was

charge.

an error in

this case, it did not rise to the level of agency error which

has required

cases.

the application

of equitable tolling

in other

Compare Page v. U.S. Indus., 556 F.2d 346 (5th Cir.

_______ ____________________

1977)(EEOC erroneously sent misleading letter), cert. denied,

_____ ______

434 U.S. 1045 (1978);

Bracey v. Helene Curtis, 780

_______________________

-2121

F. Supp.

568

(N.D.

Ill. 1982)(EEOC

miscalculation of

Roberts v. Arizona Bd. of Regents, 661 F.2d

___________________________________

filing date);

796 (9th

Cir.

1981)(EEOC affirmatively misconstrued own regulations).

The

error

emphasis placed

on the allegations

of agency

obscures the fact that appellant fails to meet all but

one of the equitable

tolling requisites.

Although appellant

did not receive actual notice of section 102.14, we find that

she did have constructive notice

because she was

represented by

delayed service to DBS.

of it and its

counsel at the

requirements

time of

the

Courts generally impute constructive

knowledge

of filing

and service requirements

who, like

appellant, consult with an

to plaintiffs

attorney. See Jacobson

___ ________

v. Pitman-Moore, Inc., 573 F. Supp. 565, 569 (D. Minn. 1983);

_____________________

see also Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.
___ ____ _______________________

1987); Edwards v. Kiser Aluminum & Chem. Sales, Inc.,

________________________________________________

F.2d

1195,

1200 n.8

Copper Corp., 558 F.

____________

F.2d 658

(1st Cir.

access to the

initiated

That she

(5th

Cir. 1975);

Appellant's

Board's rules and

service on

DBS within

was unfamiliar

itself, is not an

Leite v. Kennecott
___________________

Supp. 1170, 1174 (D. Mass.),

1983).

515

aff'd 720
_____

attorney had

full

regulations and could

have

the section

with Board

10(b) period.

regulations, in

excuse for failure to comply

and of

with section

10(b)'s

requirements.

NLRB v. Washington Star Co., 732 F.2d

___________________________

974, 975 (D.C. Cir. 1984).

The general rule is

that "those

who deal with the Government are expected to know the law and

-2222

may

not rely on the conduct of Government agents contrary to

law."

Community Health Services,

_________________________

467 U.S. at

63; see also

___ ____

Falcone, 864 F.2d at 230; Kale, 861 F.2d at 754.

_______
____

Our

knowledge

holding

of the

573

F. Supp.

record

and regulations

at

570

("[T]he

. .

whether equitable tolling

reveals

that

had

appellant

attorney wrote and mailed the

is

the key

of

factor

should apply.").

received

the

in

The

extensive

Appellant's

August 30, 1993, demand letter

contacted the Board about its

charge with

is further

duration

representation over an extended period of time.

to DBS,

constructive

of the representation she enjoyed.

attorney-client relationship

determining

appellant

Board's rules

supported by the duration

Jacobson,
________

that

the Board, and then

procedures, filed the

later represented appellant

during

Board

proceedings.

appellant's

attempt

received as

"limited."

technicality

navigating a

to

We

are

characterize

This is

prevents

not

the

assistance

not a case in

layperson

successfully

Compare Vanity
_______ ______

F. Supp.

643 (D.N.H.

also Love v. Pullman, 404 U.S. 522, 525-27 (1972).

____ _______________

the

note

she

256 N.L.R.B. 1104 (1981); Abbott v. Moore

________________

Business Forms, Inc., 439

_____________________

we persuaded by

by

which a mere

from

complicated regulatory process.

Fair Mills, Inc.,

________________

persuaded

1977); see
___

Nor

are

the argument appellant makes

with regard to

two remaining equitable tolling factors.

While we take

of

the

fact

that

attorneys

frequently

contact

-2323

administrative

agencies

directly,

cannot

reliance

we

on

reasonable.

the

about their

agree

information

and regulations

appellant's

provided

by

the

attorney's

Board

was

We think it plain that an attorney's reliance on

oral information, provided

level

that

rules

employee, is

not

over the telephone and

reasonable.

by a low-

See Community Health

___ _________________

Services, 467 U.S. at 65; Falcone, 864 F.2d at 230-31.

________
_______

information, almost by definition,

as simply looking

up the

appellant failed

the

is not nearly as reliable

text of a

Health Services, 467 U.S. at 65.

_______________

Such

regulation.

Community
_________

We also think it plain that

to exhaust the options

for compliance with

-2424

section 10(b)

made any

proviso.

her attorney

attempt to mail or personally deliver a copy of the

charge to

DBS.

In fact,

Board about the

October

Neither appellant nor

they failed

status of the

6, 1993.

Had

even to

contact the

charge after it was

they done

so, they might

filed on

have been

alerted to the problem with the charge and might have avoided

the section 10(b) violation.

That no real prejudice flowed to DBS as a result of

the

untimely

filing

appellant's

order

dismissing

complaint is that the merits of her unfair labor

DBS

Board's

to

appellant's

against

the

appeal

The

claim

of

some

argument.

practice

effect

lends

will never

be

decided.

We

appreciate the

mindful

of the

Center v. Brown,
_______________

prejudice

"is

difficulty this poses for

Court's

holding in

466 U.S.

not an

appellant, but are

Baldwin County Welcome

_______________________

147 (1984), that

independent

basis

the absence

for invoking

[equitable tolling] doctrine and sanctioning

established procedures."

that the Board properly

Id. at
___

152.

We

of

the

deviations from

hold, therefore,

refused to invoke equitable estoppel

and tolling in this case.

III.
III.

CONCLUSION
CONCLUSION
__________

For the reasons stated above, the

appellant's complaint

order dismissing

for untimely service of

the charge is

affirmed.
________

Because

there

are

no

outstanding

issues

of

-2525

material fact, the Board

properly granted DBS's joint Motion

to Dismiss and Motion for Summary Judgment.

No costs to either party.

No costs to either party
________________________

-2626