Kelley v. NLRB ( 1996 )


Menu:
  • 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
    -2-
    2
    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
    -3-
    3
    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
    -4-
    4
    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,
    -5-
    5
    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
    -6-
    6
    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
    -8-
    8
    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
    -9-
    9
    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).
    -11-
    11
    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
    -12-
    12
    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,
    -13-
    13
    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
    -14-
    14
    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
    -16-
    16
    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
    -18-
    18
    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
    -19-
    19
    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
    -22-
    22
    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
    -23-
    23
    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
    -24-
    24
    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
    -25-
    25
    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
    -26-
    26
    

Document Info

Docket Number: 95-1618

Filed Date: 3/26/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (38)

National Labor Relations Board v. Fant Milling Co. , 79 S. Ct. 1179 ( 1959 )

Guidry v. Sheet Metal Workers National Pension Fund , 110 S. Ct. 680 ( 1990 )

father-sons-lumber-and-building-supplies-inc-father-sons-lumber-and , 931 F.2d 1093 ( 1991 )

National Labor Relations Board v. Wiltse , 188 F.2d 917 ( 1951 )

National Labor Relations Board v. International Brotherhood ... , 758 F.2d 436 ( 1985 )

Homero Lopez v. Citibank, N.A. , 808 F.2d 905 ( 1987 )

38-fair-emplpraccas-801-37-empl-prac-dec-p-35487-richard-cerbone-v , 768 F.2d 45 ( 1985 )

national-labor-relations-board-v-manitowoc-engineering-co-and-clipper , 909 F.2d 963 ( 1990 )

Harry L. DILLMAN, Plaintiff-Appellant, v. COMBUSTION ... , 784 F.2d 57 ( 1986 )

union-builders-inc-v-national-labor-relations-board-district-council , 68 F.3d 520 ( 1995 )

National Labor Relations Board v. Silver Bakery, Inc., of ... , 351 F.2d 37 ( 1965 )

West v. Conrail , 107 S. Ct. 1538 ( 1987 )

Kent EARNHARDT, Etc., Plaintiff, Appellant, v. the ... , 691 F.2d 69 ( 1982 )

Carl Kale v. Combined Insurance Company of America, Carl ... , 861 F.2d 746 ( 1988 )

National Labor Relations Board v. Warrensburg Board & Paper ... , 340 F.2d 920 ( 1965 )

Leite v. Kennecott Copper Corp , 720 F.2d 658 ( 1983 )

Hospital & Service Employees Union, Local 399, Service ... , 798 F.2d 1245 ( 1986 )

Carole Patricia ROBERTS, Plaintiff-Appellant, v. ARIZONA ... , 661 F.2d 796 ( 1981 )

15-fair-emplpraccas-487-14-empl-prac-dec-p-7754-john-d-page-and-don , 556 F.2d 346 ( 1977 )

Steven D. Simon v. Kroger Company, General Teamsters Local ... , 743 F.2d 1544 ( 1984 )

View All Authorities »