Decision 0269S – State of California (Department of Health Services)
LA-CE-38-S
Decision Date: December 22, 1982
Decision Type: PERB Decision
Perc Vol: 7
Perc Index: 14023
Decision Headnotes
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
Union conduct did not indicate waiver of a reasonable opportunity to bargain merely because union representative acknowledged that district representative was "following orders;" pp. 12-13.
1401.01000 – In General
Successful assertion of the defense of laches requires a showing that (1) Charging Party unreasonably delayed in asserting its claim, and (2) Charging Party either acquiesced in the act about which it now complains, or Respondent relied to its detriment on charging party's conduct or silences; laches not demonstrated by these facts; p. 13.
1101.06000 – Statutory and Equitable Tolling
The running of the six-month period set forth in Dills Act section 3514.5 is tolled during the time complainant was pursuing grievance machinery provided by agreement between the parties and which culminates in settlement or binding arbitration; pp. 3-4. Doctrine of equitable tolling provides that the statute of limitations will not bar a claim where (1) injured person has several legal remedies and reasonably and in good faith pursues one; and (2) the defendant is protected from surprise and prejudice; p. 4. Board will not apply doctrine of equitable tolling to Charging Party's pursuit of claim against employer through her local legislators and the "Labor Board"; pp. 4-5. But see 718-H and 826-H.
608.03000 – Business Necessity; Emergency Exception
Education Code section 42694.5, which gives county superintendent ultimate authority over pay warrants, does not allow the employer to assert the defense of "impossibility" with respect to its ability to negotiate lump-sum payments; pp. 14-16.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Union conduct did not indicate waiver of a reasonable opportunity to bargain merely because union representative acknowledged that district representative was "following orders;" pp. 12-13. Successful assertion of the defense of laches requires a showing that (1) Charging Party unreasonably delayed in asserting its claim, and (2) Charging Party either acquiesced in the act about which it now complains, or Respondent relied to its detriment on charging party's conduct or silences; laches not demonstrated by these facts; p. 13.