
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  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
