Kelley v. N.L.R.B.

• Decision Date: 08 December 1995
• Docket Number: No. 95-1618,95-1618
• Parties: 151 L.R.R.M. (BNA) 2801, 64 USLW 2638, 131 Lab.Cas. P 11,539 Christine KELLEY, Petitioner, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1238

79 F.3d 1238

151 L.R.R.M. (BNA) 2801, 64 USLW 2638,

131 Lab.Cas. P 11,539

Christine KELLEY, Petitioner, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Appellee.

No. 95-1618.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1995.

Decided March 26, 1996.

On Petition for Review of an Order of the National Labor Relations Board.

Margaret J. Palladino, with whom Tamara E. Goulston, and Sherburne, Powers & Needham, P.C., Boston, MA, were on brief, for petitioner, appellant.

Christopher W. Young, Attorney, with whom Frederick L. Feinstein, General Counsel, Frederick C. Havard, Washington, DC, Supervisory Attorney, Linda Sher, South Euclid, OH, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, National Labor Relations Board, were on brief, for respondent, appellee.

Jay M. Presser, Audrey J. Samit, and Skoler, Abbott & Presser, P.C., Springfield, MA, on brief, for intervenor, appellee Dun & Bradstreet Software Services, Inc.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal concerns 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. 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 would be withdrawn if DBS failed to respond by September 17, 1993. It also notified DBS of Kelley'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) 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 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....").

                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
                

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 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, rejecting claims that the statute should be tolled because Kelley detrimentally relied on the Board employee's statement of procedure.

II. 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 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 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.").

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.

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, 111 S.Ct. 954, 112 L.Ed.2d 1042 (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 Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (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...