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

Single Topic for Decision 2398H

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Tolling of the statute of limitations under HEERA applies even if the parties are utilizing a non-binding dispute resolution procedure. After the issuance of a complaint by the Office of the General Counsel, assertion of the statute of limitations is an affirmative defense, and the respondent has the burden of proving the unfair practice charge was untimely. Thus, in satisfying its burden of proof on the timeliness issue where a grievance has been filed, the respondent must prove that the charge was filed outside the six-month limitations period and that the tolling exception does not apply. The equitable tolling period included the period of time during which the employer acquiesced in using the MOU, including its arbitration provisions, to resolve this dispute, regardless of whether the dispute was covered under the arbitration provision. The parties in this case initially agreed to arbitrate the union’s claim regarding misclassification of adjuncts, and the employer never objected to arbitration of the dispute or challenged the subject-matter arbitrability of the grievance. Tolling would not frustrate the purpose of the statute of limitations because the employer could not be surprised or prejudiced by the union’s pursuit of the unfair practice charge.