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Summary of Rulings in Unfair Practice Cases

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SUMMARY OF RULINGS IN UNFAIR PRACTICE CASES

The collective bargaining laws enforced by the Public Employment Relations Board (PERB or Board) grant certain rights to employees and unions. To ensure these rights, the laws impose obligations upon employers and unions. Unfair practices occur when a party violates the rights of another party or fails to discharge its obligations toward another party.

In approximately two thousand decisions, PERB has contemplated the question of whether particular acts taken by a party constitute unfair practices. These decisions are authority for how an administrative law judge or other Board agent should rule in similar fact patterns.

Set out below is an illustrative discussion of how the Board has analyzed some of the most common types of unfair practices. This discussion is not a comprehensive summary of PERB case law but may be useful as a research guide.

References herein to a section of a statute are to the California Government Code except for those applicable to TEERA which is a part of the Public Utilities Code.

Retaliation/Discrimination by an Employer

Employees covered by the seven PERB-administered statutes (EERA, Dills Act, HEERA, MMBA, TEERA, Trial Court Act and Court Interpreter Act) have the right to "form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations." It is unlawful for an employer covered by any of the statutes to "[i]mpose . . . reprisals on employees, to discriminate . . . or otherwise to interfere with, restrain, or coerce employees because of their exercise of [protected] rights."

In order to prove an allegation of discrimination, the charging party must first demonstrate that the aggrieved employee engaged in protected conduct. The charging party must then show that the employer knew of the employee's protected act (Moreland Elementary School District (1982) PERB Decision No. 227) and that the employer took an adverse action against the employee. The adverse action cannot be speculative but must be an actual harm. (Palo Verde Unified School District (1988) PERB Decision No. 689.)

Upon a showing of protected conduct and adverse action, the party alleging discrimination must then make a prima facie showing of unlawful motivation. Under Novato Unified School District (1982) PERB Decision No. 210, unlawful motivation occurs where an employer's action against an employee was motivated by the employee's participation in protected conduct.

Indications of unlawful motivation have been found in many aspects of an employer's conduct. Words indicating retaliatory intent can be persuasive evidence of unlawful motivation. (Santa Clara Unified School District (1979) PERB Decision No. 104.) Other indications of unlawful motivation have been found in an employer's: failure to follow usual procedures (Ibid.); shifting justifications and cursory investigation (State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); disparate treatment of a union adherent (State of California (Department of Transportation) (1984) PERB Decision No. 459-S); timing of the action (North Sacramento School District (1982) PERB Decision No. 264); and pattern of antagonism toward the union (Cupertino Union Elementary School District (1986) PERB Decision No. 572).

Motivation is determined by a review of direct and circumstantial evidence to see whether, but for the exercise of protected rights, the disputed action would not have been taken against the employee. (See Martori Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d 721, 727-730 [175 Cal.Rptr. 626]; Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM 1169] enf., in relevant part, (1st Cir. 1981) 662 F.2d 899 [108 LRRM 2513].)

After the charging party has made a prima facie showing sufficient to support an inference of unlawful motive, the burden shifts to the respondent to produce evidence that the action "would have occurred in any event." (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at 730.) If an employer respondent then demonstrates misconduct on the part of the employee, the employer's action against the employee,

. . . should not be deemed an unfair labor practice unless the board determines that the employee would have been retained "but for" his union membership or his performance of other protected activities. [Ibid.]

Interference by an Employer With Employee Rights

It is an unfair practice for an employer covered by the statutes PERB administers "to interfere with, restrain, or coerce employees because of their exercise of" protected rights. "Interference" is a general term used to describe violations against employees under the seven statutes. Typically, these cases involve obstruction of rights through threats, intimidation or similar actions.

In an unfair practice case involving an allegation of interference, a violation will be found where the employer's acts interfere or tend to interfere with the exercise of protected rights and the employer is unable to justify its actions by proving operational necessity. (Carlsbad Unified School District (1979) PERB Decision No. 89.) In an interference case, it is not necessary for the charging party to show that the respondent acted with an unlawful motivation. (Regents of the University of California (1983) PERB Decision No. 305-H.)

Employer Interference With Employee Organization Rights

The PERB-administered statutes differ from federal laws that cover private employers in that they set out certain protected rights of employee organizations. It is an unfair practice under the PERB-administered statutes for an employer to deny these employee organization rights. The rights granted to employee organizations under the PERB-administered laws vary from statute to statute. Parties alleging interference with organization rights should pay attention to the specific wording of the statute applicable to their dispute.

Under the Dills Act, employee organizations have the right to represent their members (section 3515.5); to have their dues deducted by checkoff (section 3515.6); and to have a reasonable amount of released time for members during meeting and conferring (section 3518.5).

Under the EERA, employee organizations have the right to represent their members (section 3543.1(a)); to have access at reasonable times to areas where employees work, to use institutional bulletin boards, mailboxes and other means of communication, and to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of protected rights (section 3543.1(b)); to have a reasonable amount of released time for members during meeting and conferring and processing grievances (section 3543.1(c)); and to have dues deducted by checkoff (section 3543.1(d)).

Under HEERA, employee organizations have the right to have access at reasonable times to areas where employees work, to use institutional bulletin boards, mailboxes and other means of communication, and to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of protected rights (section 3568)); to have a reasonable amount of released time for members during meeting and conferring and processing grievances (section 3569)); to have dues deducted by checkoff (section 3583); and, for each organization that represents employees at the California State University, time off with compensation for four representatives to attend and make oral presentations at certain meetings of the University Trustees (section 3569.5).

Under the MMBA, employee organizations have the right to represent their members (section 3503), to released time for a "reasonable number" of employee representatives for meeting and conferring (section 3505.3), and to have dues deducted by checkoff (section 3508.5).

Under TEERA, employee organizations have the right to have access at reasonable times to areas where employees work, to use institutional bulletin boards, mailboxes and other means of communication, and to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of protected rights (section 99563.2)); to have a reasonable amount of released time for members during meeting and conferring and processing grievances (section 99563.3)); and to have dues deducted by checkoff (section 99563.1)

Under the Trial Court Act, employee organizations have the right to represent their members (section 71633); to released time for a "reasonable number" of employee representatives for meeting and conferring (section 71635); and to have dues deducted by checkoff (section 71638).

Under the Court Interpreter Act, employee organizations have the right to represent their members (section 71815); to released time for a "reasonable number" of employee representatives for meeting and conferring (section 71821); and to have dues deducted by checkoff (section 71824).

Employer Failure to Negotiate in Good Faith---Unilateral Change

Employers and exclusive representatives are obligated under the PERB-administered laws to meet and confer/negotiate in good faith. It is an unfair practice for a covered public employer to fail to meet and confer/negotiate in good faith with an exclusive representative.

The most commonly alleged type of failure to negotiate is that the employer made a unilateral change in a negotiable subject. If an employer makes a pre-impasse unilateral change in an established, negotiable practice, that employer violates its duty to meet and negotiate in good faith. (NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177].) Such unilateral changes are inherently destructive of employee rights and are a failure per se of the duty to negotiate in good faith. (Davis Unified School District, et al. (1980) PERB Decision No. 116; State of California (Department of Transportation) (1983) PERB Decision No. 361-S.)

To prevail on a complaint of unilateral change, the exclusive representative must establish by a preponderance of the evidence that (1) the employer breached or altered the parties' written agreement or own established past practice; (2) such action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the change was not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a generalized effect or continuing impact upon the terms and conditions of employment of bargaining unit members); and (4) the change in policy concerns a matter within the scope of representation. (Grant Joint Union High School District (1982) PERB Decision No. 196; State of California (Department of Forestry and Fire Protection) (1993) PERB Decision No. 999-S.)

Employer Failure to Negotiate in Good Faith---Surface Bargaining

It is the essence of surface bargaining that a party goes through the motions of negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB Decision No. 80.) Entering negotiations with a "take-it-or-leave-it" attitude evidences a failure of the duty to bargain because it amounts to merely going through the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194 [57 LRRM 1491], enf. 418 F.2d 736 [72 LRRM 2530].)

The indicia of surface bargaining are many. Recalcitrance in the scheduling of meetings is evidence of manipulation to delay and obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No. 326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for meetings is evidence of bad faith. (Oakland Unified School District, supra, PERB Decision No. 326.) Conditioning agreement on economic matters upon prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-and-take. (State of California (Department of Personnel Administration) (1998) PERB Decision No. 1249-S.)

Other factors that have been held to be indicia of surface bargaining include: negotiator's lack of authority which delays and thwarts the bargaining process (Stockton Unified School District (1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive issues (San Ysidro School District (1980) PERB Decision No. 134); reneging on tentative agreements the parties already have made (Charter Oak Unified School District (1991) PERB Decision No. 873, Stockton Unified School District, supra, PERB Decision No. 143); repudiation of a tentative agreement by the employer's chief negotiator (Placerville Union School District (1978) PERB Decision No. 69).

It is clear, however, that while a party may not merely go through the motions, it may lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining position is not necessarily refusal to bargain in good faith. (Oakland Unified School District (1982) PERB Decision No. 275.) "The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained." (NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].)

Where there is an accusation of surface bargaining, the PERB will resolve the question of good faith by analyzing the totality of the accused party's conduct. PERB weighs the facts to determine whether the conduct at issue "indicates an intent to subvert the negotiating process or is merely a legitimate position adamantly maintained." (Oakland Unified School District, supra, PERB Decision No. 275.)

Employer's Unlawful Support or Domination of Union

It is an unfair practice under the PERB-administered laws for an employer to "contribute financial or other support" to an employee organization or to "in any way encourage employees to join any organization in preference to another." PERB has interpreted this language as imposing on employers "an unqualified requirement of strict neutrality" among competing organizations. (Santa Monica Community College District (1979) PERB Decision No. 103; Clovis Unified School District (1984) PERB Decision No. 389.)

There is no requirement that the employee organization show that the employer intended its actions to impact on employee free choice. "The simple threshold test . . . is whether the employer's conduct tends to influence that choice or provide stimulus in one direction or the other." (Santa Monica Community College District, supra, PERB Decision No. 103; State of California (Departments of Personnel Administration, Mental Health and Developmental Services) (1985) PERB Decision No. 542-S. See also, Sacramento City Unified School District (1982) PERB Decision No. 214.)

A union need not prove that the employer's action resulted in an actual change in employee organizational membership. (Santa Monica Community College District, supra, PERB Decision No. 103.) Nor is it consequential that the supported organization is not on the ballot. When an employer's campaign for "no representation" has the practical effect of providing support to one organization over another it is irrelevant that the favored organization is not on the ballot. (Sacramento City Unified School District, supra, PERB Decision No. 214.) In reviewing allegations of unlawful support, the PERB will consider the totality of circumstances and the cumulative effect of an employer's conduct. Each individual factual assertion need not stand alone as a separate violation. (Redwoods Community College District (1987) PERB Decision No. 650.)

An employer must be careful to treat all organizations the same. Even a permissible level of financial assistance, support or cooperation must be afforded to all employee organizations or to none. Thus, an employer provided unlawful support when it typed and distributed the meeting minutes, and provided stationery and released time for one of two competing organizations. (Clovis Unified School District (1984) PERB Decision No. 389.)

Union's Violation of the Duty of Fair Representation

The unfair practice charge most commonly filed against an exclusive representative is that it failed to fairly represent a member of the bargaining unit. The duty of fair representation requires an exclusive representative to fairly and impartially represent all employees in the bargaining unit.

The duty to fairly represent is breached when the exclusive representative's conduct toward a unit member is arbitrary, discriminatory or in bad faith. (Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.) A breach of the duty is unlawful discrimination. (See Mt. Diablo Education Association (Quarrick and O'Brien) (1978) PERB Decision No. 68.)

The duty of fair representation applies to the handling of grievances. (Fremont Unified District Teachers Association (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) Existence of the duty does not mean, however, that an employee has "an absolute right to have a grievance taken to arbitration . . . .An exclusive representative's reasonable refusal to proceed with arbitration is essential to the operation of a grievance and arbitration system." (Castro Valley Teachers Association (McElwain and Lyen) (1980) PERB Decision No. 149.)

An exclusive representative has no obligation to pursue a grievance where the "potential success at arbitration was doubtful." (Sacramento City Teachers Association (Fanning et al.) (1984) PERB Decision No. 428.) In United Teachers of Los Angeles (Collins), supra, PERB Decision No. 258 the PERB stated:

. . . Absent bad faith, discrimination, or arbitrary conduct, mere negligence or poor judgment in handling a grievance does not constitute a breach of the union's duty. [Citations.]

A union may exercise its discretion to determine how far to pursue a grievance in the employee's behalf as long as it does not arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory fashion. A union is also not required to process an employee's grievance if the chances for success are minimal. [Citation.]

In order to state a prima facie breach of the duty of fair representation, a charging party must show that the exclusive representative's conduct was arbitrary, discriminatory or in bad faith.

In order to state a prima facie case of arbitrary conduct violating the duty of fair representation, a charging party:

. . . must at a minimum include an assertion of sufficient facts from which it becomes apparent how or in what manner the exclusive representative's action or inaction was without a rational basis or devoid of honest judgment. (Emphasis added.) [Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9, citing Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.]

Under the EERA, the duty of fair representation is set out at section 3544.9 and is enforced through section 3543.6(b). Under the Dills Act, the duty of fair representation is set out in section 3515.7(g) and case law California State Employees Association (Norgard) (1984) PERB Decision No. 451-S and is enforced through section 3519.5(b). Under HEERA, the duty is set out in section 3578 and is enforced through section 3571.1(b) and (e). Under the MMBA, the duty of fair representation is established under case law (Hussey v. Operating Engineers (1995) 35 Cal.App.4th 1213) and is enforced through PERB Regulation 32604(b). Under TEERA, the duty of fair representation is set forth at section 99564.5 and is enforced through section 99563.8(b). Under the Trial Court Act and Court Interpreter Act, the duty of fair representation is established under case law (Hussey v. Operating Engineers (1995) 35 Cal.App.4th 1213) and is enforced through PERB Regulations 32607(b) and 32609(b), respectively.

There are technical differences in the language referring to the duty of fair representation in those statutes with express provisions. HEERA section 3578 and TEERA section 99564.5 explicitly prohibit representation that is "arbitrary, discriminatory, or in bad faith," while EERA provides more generally that a union shall "fairly represent" unit members. The Dills Act has explicit language, similar to HEERA, but refers only to fair share payers; however, PERB cases have found a duty owed to all bargaining unit members. (California State Employees Association (Norgard) (1984) PERB Decision No. 451-S.)

Retaliation/Discrimination by an Employee Organization

The right of employees covered by the PERB-administered statutes to "form, join, and participate in the activities of employee organizations" is enforceable against unions as well as employers. It is an unfair practice for an employee organization to "[i]mpose . . . reprisals on employees, to discriminate . . . or otherwise to interfere with, restrain, or coerce employees because of their exercise of [protected] rights."

The PERB has been reluctant to employ these sections as a vehicle for reviewing the internal affairs of unions in duty of fair representation cases. (See Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) But the Board has been willing to review internal union activities for two other purposes: (1) to determine the "reasonableness" of disciplinary action under sections 3515.5 and 3543.1(a) and (2) to determine whether a union's action against an employee constituted a retaliation for engaging in protected conduct.

Where there is an allegation that the union has discriminated against an employee for participating in protected conduct, the Board applies the same analytical test as it uses in cases involving discrimination by an employer. (California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S; California State Employees Association (Hackett et al.) (1995) PERB Decision No. 1126-S.) Therefore, in order to prove discrimination, a charging party first must demonstrate that he/she engaged in protected conduct.

To establish protected conduct for internal union activity, the charging party must establish a link between the internal union activity and the employment relationship. (California State Employees Association (Hutchinson) (1998) PERB Decision No. 1304-S.) In making this determination, the Board looks to whether the conduct in which the charging party engaged had a substantial impact on employer-employee relations. (California State Employees Association (Hard et al.) (1999) PERB Decision No. 1368-S.)

If the charging party can demonstrate protected conduct, it then must show that the union knew of the protected activity and took an adverse action against charging party. The adverse action cannot be speculative but must be an actual harm and have an impact on the employee's relationship with the employer. Upon a showing of protected conduct and adverse action, the charging parties then must make a prima facie showing that the respondent's action against them was motivated by their protected activity. (Novato Unified School District, supra, PERB Decision No. 210.) Motivation is determined by a review of direct and circumstantial evidence to see whether, but for the exercise of protected rights, the disputed action would not have been taken against the charging party.

If charging party establishes a prima facie showing sufficient to support an inference of unlawful motive, the burden shifts to the respondent to produce evidence that the action "would have occurred in any event." (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 730.) If the respondent then shows misconduct on the part of the charging party, the respondent's action will not be deemed an unfair practice unless the evidence establishes the action would not have been taken against the charging parties "but for" the charging party's protected activity.

Union's Failure to Negotiate in Good Faith

Exclusive representatives, like employers, are obligated under the PERB-administered laws to meet and confer/negotiate in good faith. It is an unfair practice for an exclusive representative to fail to meet and confer/negotiate in good faith with an employer.

Unfair practice charges accusing a union of making a unilateral change are rarely made, although there are at least two Board decisions involving such an allegation. (See Regents of the University of California (1992) PERB Decision No. 922-H and State of California (Department of Personnel Administration) (2004) PERB Decision No. 1601-S).)

Unions can engage in surface bargaining and such charges are filed against unions. The legal principles applied to a surface bargaining charge against a union are the same as would be applied to cases involving an employer. Surface bargaining charges against unions sometimes contain an allegation that the union bypassed the employer's negotiator by going directly to elected officials. The Board treats such conduct as evidence of surface bargaining:

. . . Bypassing the [employer's] authorized negotiators, for example, by going straight to the school board . . . with proposals or concessions, would subvert the statutory scheme and arguably violate the good-faith obligations of collective bargaining. . . . [San Ramon Valley Unified School District (1982) PERB Decision No. 230; see also, Westminster School District (1982) PERB Decision No. 277.]

Unions also are occasionally charged with failing to negotiate in good faith by refusing to drop non-mandatory subjects at impasse. In cases involving a party's refusal to drop a non-mandatory subject, the Board follows the principles it set out in Lake Elsinore School District (1986) PERB Decision No. 603.

Failure to Participate in Impasse Procedures in Good Faith

It is an unfair practice under the PERB-administered statutes for either an employer or an exclusive representative to fail to participate in the impasse procedures in good faith. Generally speaking, any conduct that would constitute a failure to meet and confer/negotiate in good faith will constitute failure to participate in the impasse procedures in good faith, if committed after the impasse procedures are in operation.

In addition, unions that undertake job actions such as strikes, during impasse, face the possibility that their conduct will be held to be a failure to participate in the impasse procedures in good faith. "The impasse procedures almost certainly were included in the EERA for the purpose of heading off strikes." (San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1, 8 [154 Cal.Rptr. 893].)

Accordingly, it is settled law that until the impasse procedure has been completed, the employer may not make a unilateral change in a negotiable subject (Moreno Valley Unified School District v. Public Employment Relations Board (1983) 142 Cal.App.3d 191, [191 Cal.Rptr. 60]) and the exclusive representative may not strike (Westminster School District, supra, PERB Decision No. 277 and Fresno Unified School District (1982) PERB Decision No. 208).

Defenses: Deferral to Arbitration

Where the parties have binding arbitration in their negotiated agreement, unfair practice charges are sometimes deferred to an arbitrator for resolution. The Dills Act and the EERA require deferral in the text of the statute. The applicable provision of the two statutes provide that PERB shall not:

[I]ssue a complaint against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the matter at issue, has been exhausted either by settlement or binding arbitration. . . .

For 15 years, PERB followed the rule set out in Lake Elsinore School District (1987) PERB Decision No. 646. In that case, PERB held that section 3541.5(a) establishes a jurisdictional rule requiring that a charge be dismissed and deferred if: (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and, (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties. As applied by the Board, an unfair practice charge would be deferred even where the contractual time line for the filing of a grievance had run and deferral meant that charging party would get no hearing before an arbitrator.

The Lake Elsinore rule was reversed by the Board in 2002 in State of California (Department of Food and Agriculture) PERB Decision No. 1473-S. In State of California, the Board returned to its earlier practice and now follows the rule from Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81, which adopted Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]. Thus, PERB will dismiss and defer the unfair practice charge to arbitration only where the following requirements are met: (1) the dispute must arise within a stable collective bargaining relationship where there is no enmity by the respondent toward the charging party; (2) the respondent must be ready and willing to proceed to arbitration and must waive contract-based procedural defenses; and (3) the contract and its meaning must lie at the center of the dispute.

Deferral to arbitration under HEERA, the MMBA, TEERA, the Trial Court Act and the Court Interpreter Act is established by PERB regulation 32620 and also follows the standard set out in Dry Creek Joint Elementary School District and Collyer Insulated Wire. However, charges deferred to arbitration under these five Acts are placed in abeyance pending completion of the arbitration rather than dismissed.

Post-arbitration deferral is also covered by the Dills Act and the EERA. Those statutes provide that:

[t]he Board shall have discretionary jurisdiction to review such settlement or arbitration award reached pursuant to the grievance machinery solely for the purpose of determining whether it is repugnant to the purposes of this chapter. If the board finds that such settlement or arbitration award is repugnant to the purposes of this chapter, it shall issue a complaint on the basis of a timely filed charge, and hear and decide the case on the merits; otherwise, it shall dismiss the charge. . . .

Repugnancy claims will also be reviewed by PERB under HEERA, MMBA, TEERA, Trial Court Act and Court Interpreter Act, pursuant to PERB Regulation 32661.

In Dry Creek, the Board developed the following standards to be observed in post-arbitration deferral: (1) the matter raised in the unfair practice charge must have been presented to and considered by the arbitrator; (2) the arbitral proceedings must have been fair and regular; (3) all parties to the arbitration proceedings must have agreed to be bound by the arbitral award; and (4) the award must not be repugnant to the act. These standards have not been modified by the Board since.

The Board will not necessarily find an arbitrator's award repugnant because it provides a different remedy than one which the Board might fashion. However, it may find the arbitrator's award repugnant where it fails to protect the essential and fundamental principles of good faith negotiations.

Defenses: Statute of Limitations

PERB is precluded under each of the statutes it enforces from issuing a complaint based upon conduct that occurred more than six months prior to the filing of the charge. PERB has held that the six-month time period is an affirmative defense. (Long Beach Community College District (2003) PERB Decision No. 1564.) If raised as a defense, the charging party bears the burden of demonstrating that the charge is timely filed (cf. Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.).

The limitations period "begins to run on the date the charging party has actual or constructive notice of the respondent's clear intent to [engage in the prohibited conduct], providing that nothing subsequent to that date evinces a wavering of that intent." (Regents of the University of California, supra, PERB Decision No. 826-H.) Notice of a proposed change must be given to an official of an employee organization who has the authority to act on behalf of the organization, and the notice must clearly inform the recipient of the proposed change. (Victor Valley Union High School District (1986) PERB Decision No. 565; see also State of California (Board of Equalization) (1997) PERB Decision No. 1235-S.)

In a unilateral change case, the critical date in calculating the running of the limitations period is the date that the charging party was informed of the intended change, not the subsequent date when the change occurs. (See e.g., State of California (Department of Personnel Administration) (1996) PERB Decision No. 1145-S, adopting dismissal of regional attorney, and State of California (Department of Corrections) (1994) PERB Decision No. 1056-S.) A charging party may not rest on its rights until actual implementation. (Mt. Diablo Unified School District (1994) PERB Decision No. 1034.)

However, in a termination case, the Board has held the statute of limitations begins to run when an employee is actually terminated, not when the employer displayed its clear intent by giving the employee notice of the termination. (Regents of the University of California (Davis) (2004) PERB Decision No. 1590-H.)

In all cases, the six-month period is to be computed by excluding the day the alleged misconduct took place and including the last day, unless the last day is a holiday, and then it also is excluded. (Saddleback Valley Unified School District (1985) PERB Decision No. 558.)