April 2, 2014
On March 19, 2014, PERB issued a decision in Los Angeles Unified School District (Brown) (2014) PERB Decision No. 2359 (“Brown”) that will drastically impact the means by which the untimeliness of an unfair labor practice charge must be proven. In Brown, PERB departed from its past precedent by expressly shifting the burden of proving that an unfair labor practice charge was not timely filed to the respondent (in most cases, the employer) in cases where a complaint on the unfair practice charge has been issued.
The statute of limitations period for filing a timely charge under the Meyers Milias Brown Act is six (6) months from the occurrence of the alleged unfair practice. Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Board (2005) 35 Cal.4th 1072. The limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 177.) PERB precedent has long established that the charging party bears the burden of demonstrating the charge was timely filed, or that an exception to the six-month statute of limitations exists. (See Long Beach Community College District (2009) PERB Decision No. 2002 (“Long Beach II”).)
In Brown, adult school teacher Christopher Brown alleged LAUSD retaliated against him for engaging in protected activity in violation of the Educational Employment Relations Act. Specifically, he alleged LAUSD gave him an unsatisfactory evaluation and nonreelected him because he had filed grievances alleging violations of the collective bargaining agreement. Initially, Mr. Brown grieved his evaluation under the grievance machinery of the collective bargaining agreement; approximately one year after the date of the evaluation, Mr. Brown filed his unfair practice charge with PERB.
A well-established exception to the six-month statute of limitations for filing an unfair practice charge applies when the same issue was pursued utilizing a collective bargaining agreement grievance procedure that ends in binding arbitration. (See Los Angeles Unified School District (1991) PERB Decision No. 894.) Under such a circumstance, the six-month statute of limitations for filing the charge is “tolled” until the grievance machinery is exhausted. (See Sacramento City Unified School District (2001) PERB Decision No. 1461.)
Notably, in Brown, the LAUSD did not argue in its position statement to the investigating PERB Regional Attorney that the unfair practice charge was untimely. LAUSD first raised the statute of limitations as an “affirmative defense” in its answer to the complaint. PERB reasoned it would not be fair to hold the charging party responsible for proving the nonexistence of an affirmative defense raised in the respondent’s pleading. (As a general legal principle, an affirmative defense is a reason why, even if a plaintiff proved all allegations, the plaintiff still could not win the case.)
PERB contends that in shifting the burden to the respondent to prove failure to comply with the statute of limitations, it is aligning its procedures to those of the California civil courts. In civil cases in California, expiration of the statute of limitations may be an affirmative defense which must be proved by the defendant. Yet when a plaintiff claims an exception (such as delayed discovery or fraudulent concealment) to the statute of limitations exists, the burden of pleading and proving the existence of an exception falls on the plaintiff.
While PERB did not alter its approach for determining whether to issue a complaint on a charge filed after the six-month period, it is unknown whether PERB Regional Attorneys will consider this decision when deciding whether a complaint should be issued. Under Tehachapi Unified School District (1993) PERB Decision No. 1024, the charging party must allege sufficient facts to show its unfair practice charge is timely filed for a complaint to issue. Thus, where a respondent demonstrates in its position statement that a statute of limitations issue exists and the charging party fails to present sufficient allegations on that point, a charge is generally dismissed. It is now unclear whether charging parties may simply allege that an exception to the statute of limitations exists to survive this initial stage of review, or if the investigating PERB Regional Attorney will require more information from the parties before issuing a complaint.