Decision 2398H – Regents of the University of California

The parties may not confer jurisdiction on PERB where the statute decrees that the Board has none.

The Board has no authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of such an agreement that would not also constitute an unfair practice.

The employer’s appointment practices at UCLA School of Law repudiated the terms of the MOU as embodied in the Switkes Letter. The employer imposed its own reading of the Switkes Letter on its appointment process by appointing adjuncts to perform the work reserved to lecturers, and by not requiring adjuncts to engage in research and service in addition to what they did to qualify for the adjunct appointment in the first place. The employer ignored the clear requirement that the adjunct assignment should not be used for teaching-only assignments, and instead used the adjunct assignment as a status designation for those applicants it believed were the most distinguished. By not requiring adjuncts to engage in research and service in addition to what they did to qualify for the adjunct appointment in the first place, the employer ignored the clear requirement in a mutually negotiated letter-agreement that the adjunct assignment should not be used for teaching-only assignments.

The employer’s academic freedom does not permit it to ignore MOU terms regarding classification of bargaining unit members. The Board’s decision does not encroach on the UC’s exercise of its managerial discretion regarding whom to hire into its ranks of instructors.

By not requiring adjuncts to engage in research and service in addition to what they did to qualify for the adjunct appointment in the first place, the employer ignored the clear requirement in a mutually negotiated letter-agreement that the adjunct assignment should not be used for teaching-only assignments.

The UC-AFT failed to meet its burden of proving a unilateral transfer of unit work, since the UC-AFT has not proven that the non-bargaining unit adjuncts are now performing duties that were previously exclusively performed by unit employees.

After the issuance of a complaint by the Office of the General Counsel, assertion of the statute of limitations is an affirmative defense, and the respondent has the burden of proving the unfair practice charge was untimely. Thus, in satisfying its burden of proof on the timeliness issue where a grievance has been filed, the respondent must prove that the charge was filed outside the six-month limitations period and that the tolling exception does not apply.

Tolling of the statute of limitations under HEERA applies even if the parties are utilizing a non-binding dispute resolution procedure. After the issuance of a complaint by the Office of the General Counsel, assertion of the statute of limitations is an affirmative defense, and the respondent has the burden of proving the unfair practice charge was untimely. Thus, in satisfying its burden of proof on the timeliness issue where a grievance has been filed, the respondent must prove that the charge was filed outside the six-month limitations period and that the tolling exception does not apply. The equitable tolling period included the period of time during which the employer acquiesced in using the MOU, including its arbitration provisions, to resolve this dispute, regardless of whether the dispute was covered under the arbitration provision. The parties in this case initially agreed to arbitrate the union’s claim regarding misclassification of adjuncts, and the employer never objected to arbitration of the dispute or challenged the subject-matter arbitrability of the grievance. Tolling would not frustrate the purpose of the statute of limitations because the employer could not be surprised or prejudiced by the union’s pursuit of the unfair practice charge.

The employer’s acquiescence to the UC-AFT’s pursuit of the grievance through the arbitration procedure induced the UC-AFT to rely to its own detriment on the employer’s implicit representation that arbitration was the proper avenue for resolving the underlying dispute. The employer may not now claim that the UC-AFT’s utilization of the incorrect grievance resolution procedure deprives it of the protections of equitable tolling.