

                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  &amp; 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 &amp; Presser,                                                                              
P.C., on  brief  for intervenor,  appellee Dun  &amp; 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  &amp;   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 &amp; 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. &amp;  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 &amp; Sons Lumber  &amp; Bldg.                                                                         

Supplies  v. NLRB, 931 F.2d  1093, 1096 (6th  Cir. 1991); see                                                                         

NLRB v. United Food &amp; 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 &amp; 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 &amp; 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 &amp;                                                                         

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  &amp; 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
