Decision 0826H – Regents of the University of California (University of California-American Federation of Teachers) * * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359
SF-CE-272; LA-CE-235-H
Decision Date: July 3, 1990
Decision Type: PERB Decision
* * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359 * * *
Description: In these consolidated cases, the Regents of the University of California (UC) was alleged to have violated HEERA section 3 5 71 ( a ) , ( b) and ( c ) , by unilaterally changing the appointment policy embodied in the parties ‘ collective bargaining agreement (CBA) for post six-year lecturers to three-year positions.
Disposition:
LA-CE-235-H: The Board found that the doctrine of equitable tolling does not survive California State University, San Diego (1989) PERB Decision No. 718-H where the statute of limitations was held specifically to be non- waivable. Also, if the charge was not timely filed, the Board has no jurisdiction whatsoever, and may not apply the doctrine of equitable tolling.
SF-CE-272-H: Article VII C ( 1) (a) of the parties I agreement was interpreted to allow the UC to take financial and fiscal considerations into account when determining whether a certain class would be taught for a three-year period by a lecturer under section VII C ( 1) (a)( 1). The agreement did not, however, allow the UC to take such factors into account when considering Article VII C (l)(a)(2) when instructional need had already been determined. Because, in the Santa Cruz case the UC decided to create a percentage ratio of three-year to one-year appointments, and because this was not one of the ·criteria established under the agreement, the UC was found to have violated the Act by unilaterally implementing a change in the parties ‘ agreed upon policy with regard to post six-year appointments.
The Board required a system wide posting of a notice that would specify the violation occurred in Santa Cruz (Trustees of the California State University (1988) PERB Order No. Ad-174-H). In addition, the Board ordered a compliance proceeding be held wherein it would be determined what the instructional need actually was during the three-year appointment period.
Perc Vol: 14
Perc Index: 21142
Decision Headnotes
1100.01000 – In General/Prima Facie Case
* * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359, where the Board held that the statute of limitations is not jurisdictional, but is an affirmative defense. The burden of proof that equitable tolling does not apply is with the respondent. * * *
It is the charging party's burden as part of the prima facie case to prove timeliness.
1101.06000 – Statutory and Equitable Tolling
* * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359, where the Board held that the statute of limitations is not jurisdictional, but is an affirmative defense. The burden of proof that equitable tolling does not apply is with the respondent. * * *
The doctrine of equitable tolling did not survive CSU, San Diego (1989) PERB Decision No. 718-H as the limitations period is not an affirmative defense and is non-waivable. The six-month statute of limitations now becomes a part of the charging party's burden of proof as part of the prima facie case.
1101.03000 – Computation of Six-Month Period
* * * OVERRULED ON OTHER GROUNDS by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359. * * *
The six-month period begins to run when the charging party has actual or constructive notice of the respondents' clear intent to implement a unilateral change in policy, provided that nothing subsequent to that date evidences a waivering of intent. This is a new test in this area.
1101.02000 – Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine
* * * OVERRULED ON OTHER GROUNDS by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359. * * *
The doctrine of relation back does not apply to the facts of this case, because the violations on the Santa Cruz and the Los Angeles campuses did not arise out of the same course of conduct and there was no showing of a system-wide directive to all UC campuses.
1201.01000 – In General
* * * OVERRULED ON OTHER GROUNDS by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359. * * *
Absent exigent circumstances, a remedy should not order something that is in contravention of the contract in a unilateral change case.
1201.02000 – Reinstatement
* * * OVERRULED ON OTHER GROUNDS by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359. * * *
Absent exigent circumstances, a remedy should not order something that is in contravention of the contract in a unilateral change case.