CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE – In General

Single Topic for Decision 2721M

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The Board clarified the continuing violation exception and the new wrongful act exception as those exceptions pertain to challenges to employer rules or policies. The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) The new wrongful act doctrine is a separate exception. It applies if the charging party alleges that within the limitations period the respondent committed a new wrongful act that goes beyond merely reiterating a prior policy. (City & County of San Francisco, supra, PERB Decision No. 2536-M, p. 15.) Normally, a charging party need not rely on the new wrongful act exception when it challenges a rule or policy based on an interference or discrimination theory, as the continuing violation doctrine usually applies in such cases. For claims based upon a unilateral change theory, in contrast, the new wrongful act doctrine tends to have more salience.