Decision 2721M – County of San Diego

In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations.

The Board clarified the continuing violation exception and the new wrongful act exception as those exceptions pertain to challenges to employer rules or policies. The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) The new wrongful act doctrine is a separate exception. It applies if the charging party alleges that within the limitations period the respondent committed a new wrongful act that goes beyond merely reiterating a prior policy. (City & County of San Francisco, supra, PERB Decision No. 2536-M, p. 15.) Normally, a charging party need not rely on the new wrongful act exception when it challenges a rule or policy based on an interference or discrimination theory, as the continuing violation doctrine usually applies in such cases. For claims based upon a unilateral change theory, in contrast, the new wrongful act doctrine tends to have more salience.

In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations.

In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. In unilateral change charges, the new wrongful act doctrine can apply if there are sufficient facts to support the exception, but the continuing violation doctrine does not apply. (See, e.g., City of Livermore (2014) PERB Decision No. 2396-M, p. 6 [“Under the applicable legal standard in unilateral change cases, the statute of limitations begins to run on the date that the charging party has actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy, provided that nothing subsequent to that date evinces a wavering of that intent.”].)

The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.)

In resolving an appeal of a dismissal, PERB reviews the Office of General Counsel’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore); City of San Jose (2013) PERB Decision No. 2341-M, p. 47.) When the sufficiency of a charge turns on interpreting a statute, contract, or employer rule or policy, the Board must accept the plain meaning of the language at issue if it is “clear and unambiguous on its face.” (County of Monterey (2018) PERB Decision No. 2579-M, p. 8.) If the language is ambiguous, “the parties must be afforded the opportunity to offer evidence in support of their respective interpretations at a formal hearing.” (Ibid.) At the charge investigation stage, “the appropriate question is not which of two competing interpretations . . . is the more plausible, but whether the language in dispute is reasonably susceptible to the charging party’s interpretation and whether that interpretation supports a viable, i.e., non-frivolous, theory of liability under the applicable PERB-administered statute.” (Ibid.)