Decision 2052M – Nevada Irrigation District
Decision Date: July 23, 2009
Decision Type: PERB Decision
Description: The charge alleged that the Nevada Irrigation District violated the Meyers-Milias-Brown Act by refusing to process or arbitrate a grievance concerning the termination of an employee.
Disposition: The Board upheld the dismissal of the charge on the ground that it was not timely filed. The Board found the doctrine of equitable tolling applied to the facts of this case and denied the District’s request for attorneys’ fees.
Perc Vol: 33
Perc Index: 134
1101.01000 – In General
The six-month statute of limitations commences to run when the charging parties knew or should have known of the conduct giving rise to the alleged unfair practice. The charging party must file a charge when it has actual or constructive notice of a clear intent to implement the action which constitutes the basis for the unfair practice, provided that nothing subsequent to that date evinces a wavering of that intent. The Union failed to demonstrate that the District’s conduct evidenced a wavering of intent. The e-mail revealed no discussions were on-going between the Union and the District concerning the grievability of the issue; rather, the discussions referenced concerned the employee’s employment status.
1000.02057 – Grievance Procedure
Grievance procedures are within the scope of representation.
1101.06000 – Statutory and Equitable Tolling
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. Six-month limitations period was not equitably tolled because the dispute was different. The dispute in the grievance concerned the termination of an employee whereas the Union’s unfair practice charge alleged a unilateral change of the memorandum of understanding.
1101.03000 – Computation of Six-Month Period
Six-month limitations period was not equitably tolled because the dispute was different. The dispute in the grievance concerned the termination of an employee whereas the Union’s unfair practice charge alleged a unilateral change of the memorandum of understanding.
1205.04000 – Attorneys Fees and Costs
PERB has the authority to order attorney fees where the moving party demonstrates that the charge was “without arguable merit” and pursued in “bad faith.” Here, the District failed to demonstrate that the Union pursued the appeal in bad faith and that the appeal was “without arguable merit.”