Decision 2002E – Long Beach Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2014) PERB Decision No. 2359

School district employer unilaterally imposed a 4/10 workweek on classified employees during two summer months. Contract language giving employer right to change particular employee’s shift for “compelling business necessity” did not give employer right to unilaterally change workday from eight to ten hours for all employees.

Unilateral change of employees’ workweek, even though change lasted only two months, had a generalized effect or continuing impact on the bargaining unit, and thus was not a mere contract violation, because the employer claimed the parties’ collective bargaining agreement allowed it to unilaterally make the change and therefore the employer might make a similar change in the future.

Contract language allowing employer to institute a 4/10 workweek “with the concurrence of the affected unit employee(s)” did not waive union’s right to bargain over imposition of a 4/10 workweek on all unit employees.

Six month statute of limitations in EERA section 3541.5(a)(1) is not jurisdictional. In PERB unfair practice proceedings, the statute of limitations is an element of the charging party’s prima facie case that the charging party bears the burden of proving at hearing. The portions of Long Beach Community College District (2003) PERB Decision No. 1564 and Walnut Valley Unified School District (1983) PERB Decision No. 289 stating that the statute of limitations is an affirmative defense that must be raised and proved by the respondent are overruled.

Six-month limitations period was equitably tolled while parties utilized written interim grievance procedure. Even though charging party never formally invoked the interim grievance procedure, the parties’ conduct was consistent with the steps set forth in the procedure.

The statute of limitations is tolled during the period of time the parties are utilizing a non-binding dispute resolution procedure if: (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 applies even if the charging party seeks a different remedy before PERB than it sought in the non-binding dispute resolution process. Limitations period was equitably tolled while parties utilized written interim grievance procedure. Even though charging party never formally invoked the interim grievance procedure, the parties’ conduct was consistent with the steps set forth in the procedure.

In PERB unfair practice proceedings, the statute of limitations is an element of the charging party’s prima facie case that the charging party bears the burden of proving at hearing. Therefore, a respondent’s failure to raise the statute of limitations as an affirmative defense in its answer does not waive the issue of timeliness.

Exceptions contained a document not introduced at hearing and thus not part of the record on appeal. Presentation of new evidence to the Board on appeal is governed by the same standard applied to requests for reconsideration based on discovery of new evidence. Exceptions did not contain declaration under penalty of perjury establishing grounds for considering the new evidence, as required by PERB Regulation 32410(a). Accordingly, the Board did not consider the new evidence in deciding the case.

Based on a finding that the employer unlawfully imposed a 4/10 workweek on employees, the Board ordered the employer to restore vacation credits and compensatory time off to employees who used those forms of leave to avoid working 10-hour days. The Board also ordered the employer to pay back pay with interest to employees who used leave without pay to avoid working 10-hour days. The Board denied the union’s request for overtime pay because the record did not establish that the employer’s unilateral implementation of the 4/10 workweek caused employees to lose overtime hours to which they otherwise would have been entitled.