CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE – Statutory and Equitable Tolling

Single Topic for Decision 2032H

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The Board adopts the same test set forth in Long Beach Community College District (2009) PERB Decision No. 2002 to determine whether the statute of limitations under HEERA will be tolled when the negotiated dispute resolution procedure ends in binding arbitration: (1) the procedure is contained in a written agreement negotiated by the parties; (2) the procedure is being used to resolve the same dispute that is the subject of the unfair practice charge; (3) the charging party reasonably and in good faith pursues the procedure; and (4) tolling does not frustrate the purpose of the statutory limitation period by causing surprise or prejudice to the respondent. Equitable tolling does not apply while an employee appeals a disciplinary action to the State Personnel Board, because that procedure does not put the other party on notice of a dispute that could result in an unfair practice charge and is not a negotiated procedure. Equitable tolling may, however, be tolled while an employee pursues a grievance procedure that is used to resolve the same dispute that is the subject of the unfair practice charge. In this case, even if equitable tolling applied, the charge would still have been dismissed as untimely.