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 Tamara E. Goulston, and
Sherburne, Powers & Needham, P.C., were on brief for petitioner,
appellant. Christopher W. Young, Attorney, with whom Frederick L. Feinstein,
General Counsel, Frederick C. Havard, Supervisory Attorney, Linda
Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy
Associate General Counsel, National Labor Relations Board, were on brief for respondent, appellee. Jay M. Presser, Audrey J. Samit, and Skoler, Abbott & Presser,
P.C., on brief for intervenor, appellee Dun & Bradstreet Software
Services, Inc.
March 26, 1996
BOWNES, Senior Circuit Judge. This appeal concerns BOWNES, Senior Circuit Judge.
the requirements for filing unfair labor practice charges
with the National Labor Relations Board ("Board").
Plaintiff-appellant Christine Kelley ("Kelley") seeks review
of a Board order dismissing her unfair labor practice
complaint against intervenor-appellee Dun & Bradstreet
Software ("DBS"), her former employer. The Board dismissed
Kelley's complaint for failure to serve a copy of the charge
underlying the complaint within the six-month time period
prescribed by section 10(b) of the National Labor Relations
Act ("Act"), 29 U.S.C. 160(b). We affirm the Board's
decision. Jurisdiction stems from 29 U.S.C. 160(f).
I. I.
BACKGROUND BACKGROUND
DBS, a company which develops and markets computer
software, employed Kelley at its Framingham, Massachusetts,
facility until April 1993. On April 12, 1993, Kelley was
terminated from her sales representative position. Shortly
after her termination, Kelley retained counsel to represent
her in an unlawful termination suit against DBS. Kelley, by
her counsel, sent an August 30, 1993, letter to DBS alleging,
inter alia, that it terminated her because she engaged in
concerted activities with other employees to dissuade DBS
from changing its food service provider. The letter demanded
a $120,000.00 settlement, stating that the settlement offer
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would be withdrawn if DBS failed to respond by September 17,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, at DBS's request, the date by
which a response to the settlement offer was due, Kelley's
attorney contacted DBS regarding the initiation of legal
proceedings against it. On September 27, 1993, Kelley's
attorney informed DBS that she would commence legal
proceedings to ensure that Kelley complied with the six-month
statute of limitations prescribed by section 10(b) of the
Act. On October 1, 1993, Kelley's attorney discussed the
procedures for filing unfair labor practice charges with the
Board information officer for Region 1 and specifically asked
whether her client was responsible for serving DBS with a
copy of the charge filed against it. The information officer
informed her that the regional office would mail the charge
to DBS.
On October 6, 1993, Kelley filed an unfair labor
practice charge with the Board's regional office, contending
that DBS terminated her in violation of section 8(a)(1) of
the Act, 29 U.S.C. 158(a)(1), which makes it an unfair
labor practice for employers to "interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed by
[the Act]." 29 U.S.C. 158(a)(1). Neither Kelley nor her
attorney served or attempted to serve DBS with a copy of the
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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 the six-month statute of limitations
prescribed by the Act elapsed. An amended charge, which
appellant filed on July 7, 1994, was served on DBS July 8,
1994. See 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 a November 7, 1994, hearing on the claims
brought against DBS, alleged that Kelley's termination
violated section 8(a)(1) of the Act. 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. On
October 5, 1994, DBS filed a joint Motion to Dismiss and a
Motion for Summary Judgment with the Board, maintaining that
Kelley's complaint should be dismissed because the underlying
charge, though timely filed, was served one day after the
six-month limitations period established by statute. On
October 17, 1994, both the General Counsel and Kelley filed
briefs opposing DBS's motion, contending that the demand
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letter sent to DBS provided actual notice of the charge and
that section 10(b) should be equitably tolled because of
DBS's delay in responding to the settlement demand and
Kelley's reliance on the information officer's statement of
Board procedure. DBS filed a reply brief on 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. On April 27,
1995, a three-member panel of the Board concluded that
Kelley's complaint should be dismissed for failure to serve a
copy of the charge within the six-month period section 10(b)
prescribes. Emphasizing the statutory policy against holding
respondents liable for conduct occurring more than six months
earlier, the Board found that there are "no special
circumstances present in this case that would warrant a
conclusion that the statutory service requirement was
satisfied." It noted that neither Kelley nor the General
Counsel alleged that DBS attempted to evade service or
fraudulently conceal the operative facts underlying the
alleged violation. See Kale v. Combined Ins. Co. of Am., 861
F.2d 746, 752 (1st Cir. 1988). It also noted that both
section 10(b) and section 102.14 of the Board's Rules and
Regulations, 29 C.F.R. 102.14, place primary responsibility
for effectuating timely service on the charging party,
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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 whether a demand letter mailed to a party
within the statute of limitations period provides actual
notice within the meaning of the Act. The second issue
concerns the circumstances under which equitable principles
may appropriately be employed to toll section 10(b)'s
limitations period. Appellant argues that the August 30,
1993, settlement letter sent to DBS provided actual notice
within the meaning of the Act and, in the alternative, that
her reliance on the Board employee's information and DBS's
delay in responding to her settlement offer warrant tolling
of the statute.
Both the Board and DBS, as intervenor, contend that
the Board correctly dismissed Kelley's claim as time-barred.
They assert that Kelley did not effectuate constructive
service within the meaning of the Act and maintain that
neither DBS's conduct nor the misinformation provided by the
Board employee and detrimentally relied upon by Kelley
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warrant tolling of the statute. It is well-established that,
absent special circumstances, unfair labor practice charges
must be both filed and served within six months after the
date of the alleged statutory violation. See NLRB 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 will cause the reviewing court to find that
strict compliance with the Board's regulations was not
required.").
Standard of Review Standard of Review
When reviewing unfair labor practice orders, we
review the Board's interpretation of the Act and 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), cert.
denied sub nom. Clipper City Lodge No. 516 v. NLRB, 498 U.S.
1083 (1991); see also Truck Drivers, 993 F.2d at 995. While
"we will not '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 substantial evidence on the record as a
whole." Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22 (1st
-7- 7
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. 160(f)("[T]he findings of the Board with
respect to questions of fact if supported by substantial
evidence on the record considered as a whole shall in like
manner be conclusive."). Absent a finding that the Board's
application of section 102.14 was "so arbitrary as to defeat
justice," we are obligated, by the deference traditionally
accorded the Board and its rules and regulations, not to
disturb the Board's decision. Father & Sons Lumber & Bldg.
Supplies v. NLRB, 931 F.2d 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) operates as an ordinary statute of
limitations, subject to recognized equitable doctrines, and
not as a jurisdictional restriction. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 395 n.11 (1982)(citing cases);
see NLRB v. Crafts Precision Indus., Inc., 16 F.3d 24, 26
(1st Cir. 1994); NLRB v. Silver Bakery, Inc. of Newton,
Massachusetts, 351 F.2d 37, 39 (1st Cir. 1965). First
enacted as part of the Wagner Act, Act of July 5, 1935, ch.
372, 49 Stat. 449 (1935), without a specific time limit for
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filing and serving charges, the section 10(b) proviso was
amended to include a six-month statute of limitations in
1947. Laborer's Int'l Union, 529 F.2d at 781-85; see Taft-
Hartley Act Amendments, Act of June 23, 1947, ch. 120, 61
Stat. 136. 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 agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, 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 and the service of a copy thereof upon the person against whom such charge is made . . . .
29 U.S.C. 160(b). Congress added the time limitation to
discourage dilatory filing of unfair labor practice charges
and to "bar litigation over past events 'after records have
been destroyed, witnesses have gone elsewhere, and
recollections of the events in question have become dim and
confused . . . .'" Local 1424, Int'l Ass'n of Machinists v.
NLRB, 362 U.S. 411, 419 (1960)(quoting H.R. Rep. No. 245,
80th Cong., 1st Sess. 40); see Silver Bakery, Inc., 351 F.2d
at 39. Under current law, the section 10(b) period begins to
run when the "aggrieved individual has actual notice that an
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unfair labor practice has been committed." Esmarck, Inc. v.
NLRB, 887 F.2d 739, 745 (7th Cir. 1989). An adverse
employment decision provides such notice. Id. at 745-46.
Congress entrusted the Board with broad discretion
for interpreting the Act and adjudicating unfair labor
practice claims. See generally Commercial Workers Union, 484
U.S. at 118-22; NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258,
262-63 (1969). To effectuate the purposes of the section
10(b) proviso, the Board has promulgated a series of rules
and regulations. See 29 C.F.R. ch. I, pt. 102 (7-1-95
Edition); see also 29 U.S.C. 156 ("The Board shall have
authority . . . 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 whom such charge is made. The regional director will, as a matter of course, cause a copy of such charge to be served upon the person against whom the charge is made, but he shall not be deemed to assume responsibility for such service.
29 C.F.R. 102.14 (1995); see also 29 C.F.R. 101.4
(1995)(investigation of charges)("[T]imely service of a copy
of the charge . . . is the exclusive responsibility of the
charging party and not of the Regional Director."). Under
section 102.14, charging parties such as appellant bear
-10- 10
primary responsibility for service of unfair labor practice
charges. While standard Board operating procedure dictates
that regional offices serve charged parties with a copy of
the charge filed against them, charging parties such as
Kelley must ultimately ensure timely service. Charges are
timely if mailed or personally served within the limitations
period. See 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 of
the Board's discretion and rulemaking authority. Section
102.14 comports with the congressional policy against
subjecting charged parties to suits brought more than six
months after the occurrence of an alleged unfair labor
practice. We do not think it unreasonable, given this and
the Board's rather liberal construction of the section 10(b)
proviso, to place the ultimate responsibility for timely
service on the shoulders of the party who sets the Board's
adjudicatory procedures in motion. See NLRB v. Wiltse, 188
F.2d 917, 926 (6th Cir.), cert. denied sub nom. Ann Arbor
Press v. NLRB, 342 U.S. 859 (1951).
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Because we find that section 102.14 is a reasonable
exercise of the Board's authority, appellant's request for
relief may only be granted if appellant complied with the
statute by providing constructive service of her charge
within the section 10(b) period or the circumstances of this
case are such that an application of equitable principles is
warranted. We now consider whether, on the 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 maintains that she complied with the
spirit, if not the letter, of section 10(b)'s service
requirement and that the Board, therefore, erroneously
dismissed her complaint. More specifically, she asserts that
the August 30, 1993, demand letter provided DBS with actual
notice of the charges against it. Both the Board and DBS
reject this contention.
The basic proposition that actual notice of a
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). Congress
did not intend unfair labor practice charges to be held to
the same "standards applicable to a pleading in a private
lawsuit." NLRB v. Fant Milling Co., 360 U.S. 301, 307
(1959). The purpose of a charge is to set the Board's
investigative machinery in motion, not to provide a full
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explication of the allegations leveled against a party. Id.
Charges are generally recorded on a blank form provided by
the Board's regional office, see 29 C.F.R. 101.2 (1995),
and function primarily as a mechanism for extracting early
and concise statements of the positions held by the charged
and charging parties. See Service Employees Union, 798 F.2d
at 1249; 29 C.F.R. 101.4. Complaints, on the other hand,
are designed to give notice of the substantive issues
underlying a charge. Service Employees Union, 798 F.2d at
1249; see 29 C.F.R. 102.15 (1995).
Nonetheless, we are not at all persuaded that the
August 30, 1993, demand letter satisfies section 10(b)'s
service requirements. First, despite appellant's assertions
to the contrary, it is not settled that charge filing and
service may be accomplished by two different documents
containing similar information. The Board's Statements of
Procedures and Rules and Regulations clearly require service
with a copy of the charge actually filed with the Board.
See, e.g., 29 C.F.R. 101.4, 102.14. Appellant's
observation that the Board's Statements of Procedures do not
require charges to be filed on a specific form has no bearing
on this. See 29 C.F.R. 101.2. But even if service could
be accomplished with a charge which differs from the one
filed with the Board, we find that the August 30, 1993,
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demand letter lacks the specificity typically required of
charges brought pursuant to the Act.
The August 30, 1993, letter advances a host of
claims against DBS, which include unfair labor practices,
gender discrimination, and violation of the Federal Equal Pay
Act, 29 U.S.C. 206(d)(1), the Federal Civil Rights Act, 42
U.S.C. 2000e et seq., and the Massachusetts Equal Rights
Act, Mass. Gen. L. ch. 93, 102, 103. It does not focus on
the section 8(a)(1) violation and, thus, does not comply with
the Board's requirement that charges provide a "clear and
concise statement of the facts constituting the alleged
unfair labor practices affecting commerce." 29 C.F.R.
102.12 (1995). Moreover, it did not, as the Board correctly
notes, provide notice that a charge was actually filed with
the Board. Because the letter was mailed more than a month
before appellant filed her charge, it only notified DBS of
the possibility that a charge would be filed. Compare Bihler
v. Singer Co., 710 F.2d 96 (3d Cir. 1983)(letter discussing
possibility of legal action not an EEOC charge). This, we
think, falls short of what section 10(b) contemplates.
The Ninth Circuit's decision in Hospital & Service
Employees Union v. NLRB, 798 F.2d 1245 (9th Cir. 1986),
provides no leverage for appellant's position. While the
Ninth Circuit did hold that actual notice satisfies section
10(b)'s service requirements, 798 F.2d at 1249, it reached
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that conclusion on the basis of a set of facts entirely
different from the one with which we are now presented. The
court disregarded the fact that the charges were never
received by the employer in that case because the complaint
was both issued and served within the six-month limitations
period and there was no claim of prejudice to the employer.
Id. at 1249. In contrast, both the charge and the complaint
in this case were issued after the section 10(b) period
elapsed. Additionally, the employer in Service Employees
Union, after hearing from an unofficial source that charges
had been filed, contacted the Board about the investigation
into its employment practices within the limitations period.
Unlike DBS, which did not formally learn that Board
proceedings had been initiated against it until 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 just stated, the other cases on
which appellant seeks to rest 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 the Ninth Circuit's reasoning in Service Employees
Union. Buckeye, 299 N.L.R.B. at 1053. Accordingly, it does
not reach cases in which the charge and complaint are both
filed and served outside of the limitations period. It
-15- 15
stands for the narrow holding that noncompliance with section
10(b)'s requirements for charge filing can be cured by timely
service of a complaint. Id. Appellant's reliance on
Freightway also falls short of the mark. That case held that
service of an unsigned copy of a charge within the
limitations period satisfies the statute because section
10(b) neither requires that the original signed charge nor a
signed copy of that charge be mailed to the party against
whom the allegations were made. Freightway, 299 N.L.R.B. at
531. It does not, 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 served only one day after
the section 10(b) deadline makes this a hard case. DBS was
not seriously prejudiced by Kelley's untimely service.
Nevertheless, we are unwilling to stretch existing precedent
to find that DBS had actual notice of the charge filed
against it when appellant has failed to comply with the
requirements for charge content and has not cleared the
hurdle of demonstrating that either her charge or complaint
was filed within the limitations period. The Board's
conclusion that appellant did not comply with section 10(b)'s
service requirements, in spirit or letter, is supported by
the record. See Simon v. Kroger Co., 743 F.2d 1544, 1546
(11th Cir. 1984), cert. denied, 471 U.S. 1075 (1985)("We find
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that the intent, spirit, and plain language of section 10(b)
require 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 10(b)'s statute of limitations period is
subject to equitable modification. Zipes, 455 U.S. at 395
n.11. Two alternate, though closely related, doctrines have
been developed to resolve the relatively small number of
cases in which equitable modification is appropriate:
equitable estoppel and equitable tolling. Kale, 861 F.2d at
752; see also Guidry v. Sheet Metal Worker's Nat'l Pension
Fund, 493 U.S. 365, 376 (1990)("[C]ourts should be loath to
announce equitable exceptions to legislative requirements or
prohibitions that are unqualified by statutory text.");
Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69, 71
(1st Cir. 1982)("Courts have taken a uniformly narrow view of
equitable exceptions to . . . limitations periods."). They
are appropriate only to avoid injustice in particular cases.
See Heckler v. Community Health Services, 467 U.S. 51, 59
(1984); see also 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 to delay bringing an action or
pursuing a claim he or she was entitled to initiate by law.
Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 61 (2d Cir.
-17- 17
1986). In the section 10(b) context, it is most often
applied when a plaintiff's untimely filing is caused by a
defendant's deceptive conduct or by reasonable reliance on
the defendant's misleading representations or information.
See, e.g., Barnard Eng'g Co., Inc., 295 N.L.R.B. 226 (1989);
see also Kale, 861 F.2d at 752; Lavery v. Marsh, 918 F.2d
1022, 1028 (1st Cir. 1990). It is not employed unless the
plaintiff relies on his or her adversary's conduct and
changes his or her position for the worse. See Community
Health Services, 467 U.S. at 59; see also 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 a
broader range of conduct, Kale, 861 F.2d at 752, and is
"appropriate only when the circumstances that cause a
plaintiff to miss a filing deadline are out of his [or her]
hands." Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.
1990), cert. denied, 498 U.S. 1026 (1991). Cases in which
the equitable tolling doctrine is invoked are most often
characterized by some affirmative misconduct by the party
against whom it is employed, such as an employer or an
administrative agency. Id. Courts generally weigh five
factors in assessing claims for equitable tolling: "(1) lack
of actual notice of the filing requirement; (2) lack of
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constructive knowledge of the filing requirement; (3)
diligence in pursuing one's rights; (4) absence of prejudice
to the defendant; and (5) a plaintiff's reasonableness in
remaining ignorant of the notice requirement." Kale, 861
F.2d at 752-53 (citing cases).
Appellant asserts that grounds for applying both
the equitable estoppel and equitable tolling doctrines exist
in this case. We find no basis for appellant's contention
that equitable estoppel is appropriate because DBS caused the
delay in the filing of her charge. In fact, the record
makes it apparent that the delay, with respect to DBS's
conduct at least, was caused by appellant's counsel's attempt
to obtain a pre-charge settlement from DBS. We do not, of
course, disparage settlement strategies of the sort employed
by appellant's counsel. Prompt disposition of disputes is
consistent with the purposes of the Act, see Service
Employees Union, 798 F.2d at 1249, and the interests of our
legal system as a whole. But, having made the decision to
pursue an early settlement with DBS, appellant, who 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 us now to cure the
defects in her settlement strategy. Though DBS requested an
extension beyond the September 17, 1993, settlement deadline
initially established by appellant's counsel, there is no
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evidence in the record that it engaged in deceptive conduct
or unfairly led appellant to believe that it intended to
settle. Compare Cerbone, 768 F.2d at 48-50 (reliance on
settlement promise); Kanakis Co., Inc., 293 N.L.R.B. 50
(1989)(perjured testimony by defendant); see also Dillman,
784 F.2d at 61. Nothing precluded appellant's counsel from
initiating Board proceedings against DBS; she was free at
every moment relevant to this appeal to suspend settlement
negotiations and to file a charge with the Board. That
appellant's counsel notified DBS, 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. When appellant's attorney withdrew the
settlement offer made to DBS, more than two weeks remained
within the section 10(b) period, enough time for appellant to
both file a charge with the Board and serve a copy on DBS.
Thus, to the extent that this case may involve a delay that
was outside of appellant's control, we find that the record
supports the Board's conclusion that it was not caused by
DBS.
The contention that equitable tolling should be
invoked against the Board, however, presents a different
question. It is axiomatic that "the grounds for tolling
-20- 20
statutes of limitations are more limited in suits against the
government . . . ." Swietlik v. United States, 779 F.2d
1306, 1311 (7th Cir. 1985); see generally Falcone v. Pierce,
864 F.2d 226, 228-29 (1st Cir. 1988). The main thrust of
appellant's equitable tolling argument is that the blame for
the untimely service of her charge lies with the Board and
the employee who failed to inform her attorney that section
102.14 places the ultimate responsibility for charge service
on the charging party. She alleges, in fact, that the Board
employee specifically instructed her attorney not to serve
DBS with a copy of the charge.
Although we agree that the Board employee's
statement of Board procedure was incomplete and perhaps
misleading, we do not agree that the delay at issue in this
case can be wholly attributed to an error on the part of the
Board. The record shows that the Board employee neglected to
call appellant's attention to section 102.14, but does not
support appellant's contention that her counsel was
explicitly prohibited from serving DBS with the charge.
Thus, to the extent that the Board did commit an error in
this case, it did not rise to the level of agency error which
has required the application of equitable tolling in other
cases. 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 F. Supp.
-21- 21
568 (N.D. Ill. 1982)(EEOC miscalculation of filing date);
Roberts v. Arizona Bd. of Regents, 661 F.2d 796 (9th Cir.
1981)(EEOC affirmatively misconstrued own regulations).
The emphasis placed on the allegations of agency
error 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 of it and its requirements
because she was represented by counsel at the time of the
delayed service to DBS. Courts generally impute constructive
knowledge of filing and service requirements to plaintiffs
who, like appellant, consult with an 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., 515
F.2d 1195, 1200 n.8 (5th Cir. 1975); Leite v. Kennecott
Copper Corp., 558 F. Supp. 1170, 1174 (D. Mass.), aff'd 720
F.2d 658 (1st Cir. 1983). Appellant's attorney had full
access to the Board's rules and regulations and could have
initiated service on DBS within the section 10(b) period.
That she was unfamiliar with Board regulations, in and of
itself, is not an excuse for failure to comply 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
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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 holding that appellant had constructive
knowledge of the Board's rules and regulations is further
supported by the duration of the representation she enjoyed.
Jacobson, 573 F. Supp. at 570 ("[T]he duration of the
attorney-client relationship . . . is the key factor in
determining whether equitable tolling should apply."). The
record reveals that appellant received extensive
representation over an extended period of time. Appellant's
attorney wrote and mailed the August 30, 1993, demand letter
to DBS, contacted the Board about its procedures, filed the
charge with the Board, and then later represented appellant
during Board proceedings. We are not persuaded by
appellant's attempt to characterize the assistance she
received as "limited." This is not a case in which a mere
technicality prevents a layperson from successfully
navigating a complicated regulatory process. Compare Vanity
Fair Mills, Inc., 256 N.L.R.B. 1104 (1981); Abbott v. Moore
Business Forms, Inc., 439 F. Supp. 643 (D.N.H. 1977); see
also Love v. Pullman, 404 U.S. 522, 525-27 (1972). Nor are
we persuaded by the argument appellant makes with regard to
the two remaining equitable tolling factors. While we take
note of the fact that attorneys frequently contact
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administrative agencies about their rules and regulations
directly, we cannot agree that appellant's attorney's
reliance on the information provided by the Board was
reasonable. We think it plain that an attorney's reliance on
oral information, provided over the telephone and by a low-
level employee, is not reasonable. See Community Health
Services, 467 U.S. at 65; Falcone, 864 F.2d at 230-31. Such
information, almost by definition, is not nearly as reliable
as simply looking up the text of a regulation. Community
Health Services, 467 U.S. at 65. We also think it plain that
appellant failed to exhaust the options for compliance with
the
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section 10(b) proviso. Neither appellant nor her attorney
made any attempt to mail or personally deliver a copy of the
charge to DBS. In fact, they failed even to contact the
Board about the status of the charge after it was filed on
October 6, 1993. Had they done so, they might 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 lends some appeal to appellant's
argument. The effect of the Board's order dismissing
appellant's complaint is that the merits of her unfair labor
practice claim against DBS will never be decided. We
appreciate the difficulty this poses for appellant, but are
mindful of the Court's holding in Baldwin County Welcome
Center v. Brown, 466 U.S. 147 (1984), that the absence of
prejudice "is not an independent basis for invoking the
[equitable tolling] doctrine and sanctioning deviations from
established procedures." Id. at 152. We hold, therefore,
that the Board properly refused to invoke equitable estoppel
and tolling in this case.
III. III.
CONCLUSION CONCLUSION
For the reasons stated above, the order dismissing
appellant's complaint for untimely service of the charge is
affirmed. Because there are no outstanding issues of
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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
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