Victor Valley Joint Union High School District (PERB 0273E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	VICTOR VALLEY
CHAPTER NO. 	243,
Charging 	Party,
v.
VICTOR VALLEY 	JOINT 	UNION 	HIGH
SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1310
PERB Decision No. 	273
December 29, 	1982
Appearances; 	E. 	Luis Saenz, 	Attorney for California School
Employees Association and 	its Victor 	Valley Chapter 	No. 	243;
Brian M. 	Libow, Attorney 	(Atkinson, 	Andelson, 	Loya, 	Ruud &
Romo) 	for 	Victor 	Valley Joint 	Union High 	School 	District.
Before Jaeger, Morgenstern and Jensen, Members.
DECISION
MORGENSTERN, Member: 	This case 	is 	before 	the 	Public
Employment 	Relations Board 	(PERB or 	Board) 	on an appeal 	by
California 	School Employees Association 	and 	its 	Victor 	Valley
Chapter 	No. 	243 	(CSEA or 	Association) 	of 	a hearing officer's
dismissal 	of 	an 	unfair 	practice 	charge 	filed 	under 	the
Educational Employment 	Relations Act 	(EERA or 	Act)l. 	The
Association alleged a violation of 	subsections 	3543.5 (b) 	and
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise 	specified.
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(c)2 	of 	the 	Act. 	It charged 	that 	the 	Victor 	Valley Joint
Union High 	School 	District 	(District) 	unilaterally 	changed
working 	conditions 	within 	the 	scope 	of 	representation 	without
meeting 	and 	negotiating 	with 	the 	exclusive 	representative. 	The
hearing 	officer 	dismissed 	the 	charge 	without 	a 	hearing,
deciding 	that 	it 	was 	not 	timely 	filed 	under 	the Act. 	He 	found
that 	a 	grievance 	procedure 	which 	had 	not 	been 	negotiated
between 	the 	parties 	did 	not 	toll 	the 	statute. 	We 	reverse 	the
hearing 	officer's 	decision 	and 	remand 	the 	charge 	for 	a 	hearing
on 	the 	merits.
PROCEDURAL 	HISTORY
On February 	26, 	1980, 	the District 	adopted 	a 	resolution
reducing 	the 	hours 	of 	certain 	cafeteria 	service 	employees 	to
become 	effective June 	30, 	1980. 	Alice Adams' 	hours were
reduced 	from 	6 	to 	4 per 	day. 	On June 	12, 	1980, 	Adams 	filed a
grievance 	with 	the District. 	The 	nature 	of 	the 	grievance 	was
2subsections 	3543.5(b) 	and 	(c) 	provide:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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that 	the 	reduction 	in hours 	was 	in violation of 	the layoff
provisions 	of 	the 	District's personnel 	commission 	rules 	and
regulations 	concerning 	seniority 	and 	bumping 	rights.
The 	grievance 	procedure 	was 	created 	by 	the 	District 	and was
not a 	part 	of 	the 	contract 	between 	the 	parties. 	The 	procedure
provided 	for 	the 	parties 	to select 	a referee 	to make 	a
determination on 	the 	grievance 	if 	it 	could 	not 	be 	settled 	at 	a
lower 	level. 	The 	referee's decision can 	be appealed 	to the
District's 	personnel commission. 	On November 	12, 	1980, 	a
hearing 	was 	conducted 	by 	the 	referee 	who 	subsequently 	found 	in
favor 	of 	the District. 	Adams 	appealed 	the 	decision and, 	on
December 	3, 	1980, 	the personnel commission upheld the
District's decision to reduce Adams' 	hours.
CSEA participated 	at 	all 	steps 	of 	the 	grievance 	resolution
procedure.
On February 	10, 	1981, 	CSEA filed an 	unfair 	practice 	charge,
alleging 	a 	unilateral change 	of 	a 	subject 	within 	the 	scope 	of
representation 	without 	affording 	the 	exclusive 	representative
an opportunity to negotiate, 	charging a violation of
subsections 	3543.5(b) 	and 	(c) 	of 	the Act.
The District 	answered 	the 	charge 	and 	subsequently 	filed 	a
Motion 	to Dismiss, 	based 	upon 	the 	failure of 	the Association 	to
file 	the 	charge 	within 	the 	six-month 	statute 	of 	limitations 	set
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forth 	in 	subsection 	3541.5(a).3 The 	hearing 	officer 	found 	in
favor 	of 	the District 	and 	dismissed 	the 	charge 	without 	leave 	to
amend on October 	7, 	1981. 	The Association 	filed this appeal.
3Subsection 3541.5(a) 	provides:
Any employee, 	employee organization, or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue a complaint 	in respect of any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the charge; 	(2) 	issue a complaint
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance machinery of 	the
agreement, 	if 	it exists 	and covers 	the
matter 	at 	issue, 	has 	been exhausted, 	either
by 	settlement 	or 	binding 	arbitration.
However, 	when 	the charging party
demonstrates 	that 	resort 	to contract
grievance 	procedure 	would 	be 	futile,
exhaustion shall 	not 	be 	necessary. 	The
board 	shall 	have 	discretionary 	jurisdiction
to 	review 	such 	settlement 	or 	arbitration
award 	reached 	pursuant 	to 	the 	grievance
machinery 	solely 	for 	the 	purpose 	of
determining whether 	it 	is 	repugnant 	to 	the
purposes 	of 	this chapter. 	If 	the 	board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to the 	purposes 	of 	this
chapter, 	it 	shall 	issue a complaint on 	the
basis 	of 	a timely filed charge, 	and 	hear 	and
decide 	the case on the merits; 	otherwise, 	it
shall dismiss 	the 	charge. 	The 	board 	shall,
in 	determining 	whether 	the 	charge 	was 	timely
filed, 	consider 	the 	six-month 	limitation 	set
forth 	in 	this 	subdivision 	to 	have 	been
tolled during 	the 	time 	it 	took 	the 	charging
party to 	exhaust 	the 	grievance 	procedure.
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DISCUSSION
The 	issue 	raised 	is 	whether 	the 	statute of 	limitations 	was
tolled 	while Adams 	and 	the Association 	pursued 	a 	resolution 	of
the 	dispute 	through 	the 	District's 	grievance 	procedure. 	We
hold 	that 	it was.
In State 	of 	California, 	Department 	of Water 	Resources
et al. 	(12/29/81) 	PERB Order No. Ad. 	122-S, the Board
considered whether 	an 	appeal 	to the 	State Personnel Board, 	as 	a
non-negotiated 	grievance 	procedure, 	tolled 	the 	statute 	of
limitations 	as 	set 	forth 	in subsection 	3514.5(a) 	of 	the 	State
Employer-Employee Relations Act 	(SEERA). 	The Board 	found 	that,
based 	upon 	the 	equitable 	tolling 	principles 	applied 	by 	the
Supreme Court 	in Elkins v. 	Derby 	(1974) 	12 Cal.3d 	410 	[115
Cal.Rptr. 	641], 	a non-negotiated 	grievance procedure could 	toll
the 	statute 	of 	limitations. 	A determination would 	be made on 	a
case 	by case 	basis 	as 	to 	the 	applicability of 	the 	equitable
tolling 	principle. 	The 	key 	issue 	is 	whether 	the defendant
would 	be 	surprised or 	prejudiced 	by 	the 	tolling. 	The 	statute
of 	limitation language 	under 	EERA 	is 	exactly 	parallel 	to 	the
language 	in SEERA 	(see footnote 	3 ) , 	and 	the analysis of 	legal
principles 	in Department of Water Resources, 	supra, 	applies 	as
well 	to cases 	arising 	under 	EERA. 	We, 	therefore, 	adopt the
same 	standard 	for 	equitable 	tolling 	in 	the 	present 	case.
The 	District 	cannot 	argue 	that 	it would 	be 	surprised 	or
prejudiced 	by 	the 	tolling. 	The 	grievance 	and 	the 	unfair
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practice 	charge 	arose 	from 	the 	same 	circumstance, 	the 	reduction
in 	hours 	and wages 	of 	certain cafeteria employees. 	The 	issue
was 	whether 	the District 	had 	followed 	its 	own 	guidelines
concerning 	seniority and 	bumping 	rights. 	The 	evidence
requirements 	for 	the defense 	of 	the 	grievance 	and 	unfair
practice charge, while not 	identical, 	are similar. 	The 	filing
of 	the 	grievance 	would 	put 	the District 	on 	notice 	of 	the
dispute. 	It would have 	sufficient 	time 	to review 	its
contractual obligations 	and 	is 	in a 	unique 	position 	to 	have
access 	to 	information concerning 	its 	course of 	bargaining. 	The
District's 	ability, 	therefore, 	to defend 	itself 	against 	the
unfair 	practice 	charge 	would 	not 	be 	prejudiced.
The District's 	argument 	that 	the Association 	should 	have
filed with 	the 	Board 	during 	the 	appeal process 	to 	the
District's 	personnel 	commission 	has 	no merit. 	The 	same 	policy
expressed 	in Department of Water 	Resources, 	supra, 	concerning
the 	purpose 	of 	SEERA applies 	here. 	The 	purpose 	of 	the EERA as
set 	forth 	in section 	35404 encourages 	"the 	resolution of
4Section 	3540 	provides 	in pertinent 	part:
It 	is 	the purpose 	of 	this 	chapter 	to promote
the 	improvement 	of 	personnel management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State of
California 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their 	own
choice, 	to be 	represented 	by such
organizations 	in 	their 	professional 	and
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employer-employee disputes through internal processes 	. 	. 	. 	."
Department 	of Water 	Resources, 	supra. 	The 	requirement 	that 	the
Association or 	grievant must 	file 	with 	the 	Board 	during 	the
grievance 	process 	to protect 	its 	right 	to Board 	procedures
would 	discourage 	bilateral 	dispute 	resolution 	and 	encourage
unnecessary 	litigation.
The 	District 	also 	argued 	that 	the 	grievance 	filed 	by one
party, 	Adams, 	should not toll 	the 	statute of 	limitations
allowing 	an 	unfair 	practice 	charge 	filed 	by 	another 	party.
This 	contention 	has 	no merit. 	The 	exclusive 	representative 	is
the 	aggrieved party 	in relation 	to 	the 	refusal 	to bargain
charge 	and, 	therefore, 	an 	appropriate 	party to raise 	the 	unfair
practice 	charge.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	we 	reverse 	the 	hearing officer 	and ORDER the 	case
remanded 	to 	the 	Chief Administrative 	Law Judge 	for 	a 	hearing on
the merits.
Members 	Jaeger 	and Jensen 	joined 	in 	this 	Decision.
employment 	relationships 	with 	public 	school
employers, 	to select one 	employee
organization 	as 	the 	exclusive 	representative
of 	the 	employees 	in an appropriate 	unit, 	and
to 	afford 	certificated 	employees 	a voice 	in
the formulation of educational policy. 	. 	. 	.
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PUBLIC EMPLOYMENT RELATIONS 	BOARD
OF THE 	STATE 	OP 	CALIFORNIA
C.S.E.A. 	AND 	ITS VICTOR VALLEY
CHAPTER NO. 	283,
Charging 	Party,
v.
VICTOR VALLEY JOINT 	UNION 	HIGH
SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. LA-CE-1310
NOTICE 	OF DISMISSAL OF
CHARGE WITHOUT LEAVE TO
AMEND AND WITHDRAWAL OF
COMPLAINT
(10/7/31)
NOTICE 	IS 	HEREBY GIVEN 	that 	the 	above-captioned 	unfair
practice charge 	is 	dismissed 	without 	leave 	to 	amend 	and 	the
complaint 	previously 	issued pursuant 	thereto 	is 	withdrawn. 	The
dismissal 	and 	withdrawal 	are 	based 	on 	the 	following grounds:
The 	unfair 	practice 	charge 	is 	based 	upon 	alleged 	actions 	of
the Respondent which 	occurred 	beyond 	the 	six month 	statute 	of
limitations 	set 	forth 	in 	the Educational Employment Relations
Act 	(hereafter EERA)1 , 	see Government Code section
3541.5(a)(1).2
PROCEDURAL 	HISTORY
The California School Employees Association and 	its Victor
Valley Chapter No. 	283 	(hereafter Charging Party) 	filed 	an
unfair 	practice 	charge on February 10, 	1981 	alleging a
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1 See Government Code 	section 	3540 	et 	seq.
All 	statutory 	references 	are 	to 	the Government Code
unless otherwise 	specified.

violation of section 3543.5(b) 	and 	(c). 	The first charge
alleged 	that 	the Victor Valley Joint Union High School 	District
(hereafter 	Respondent or District) 	failed 	to notify the chapter
that 	a 	reduction 	of 	hours 	and 	salaries 	would 	take place on
September 	4, 	1980 	for 	specified 	employees 	and 	therefore 	the
Charging 	Party 	was denied 	its 	opportunity 	to 	begin 	negotiations
prior 	to 	the adoption of 	the reduction 	resolution.
On February 26, 	1980, 	District Resolution 80-3 	(which
directed 	such 	reductions) 	was 	adopted 	to become effective
June 30, 1980.
The second 	charge 	alleges 	that 	the District 	announced 	in
advance 	that a 	unilateral 	action would 	be taken by 	reducing
hours and 	salaries 	on February 26, 	1980 and 	that 	such
unilateral 	action 	constitutes 	a 	refusal 	to meet 	and 	negotiate
in good 	faith with 	the exclusive 	representative.
The Charging 	Party 	additionally 	alleges 	that 	the 	grievants
et. 	al. 	have been 	using 	the organizational appeal system since
June 12, 	1980 with a final decision 	rendered on or 	about
December 3, 	1980.
On March 	11, 	1981, 	the Respondent answered 	the charge with
a 	general denial 	although 	the District 	did 	admit 	it 	announced
in 	advance 	that 	it contemplated 	reducing 	the hours of 	certain
classified 	employees. 	In addition, 	the District, 	in 	its
answer, 	set 	forth 	four 	affirmative defenses 	as 	follows:
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(1) 	Charging 	Party has 	failed 	to 	allege 	facts 	which
constitute 	an 	unfair 	p r a c t i c e ;
(2) 	Charging 	Party has 	waived 	i t s 	right 	to 	assert 	the
commission 	of 	an 	unfair 	p r a c t i c e ;
(3) 	Charging 	Party 	is 	estopped 	to 	assert 	commission 	of 	an
unfair 	p r a c t i c e ;
(4) 	Controlling 	facts 	upon 	which 	Charging 	Party bases 	i t s
claim 	of 	unfair 	practice 	occurred 	in 	excess 	of 	six 	(6) 	months
prior 	to 	the 	unfair 	practice 	charge 	filed 	herein.
On April 	17, 	1981, 	a Complaint and Notice of Hearing was
issued.
On May 	1, 	1981, 	the D i s t r i c t 	filed 	a Motion 	to Dismiss
Unfair Practice Charge. 	On June 	12, 	1981, 	the Charging 	Party
filed 	a 	brief 	in 	opposition 	to 	such 	motion.
This 	dismissal 	and 	withdrawal 	are 	in 	response 	to
Respondent's 	motion.
FACTS
On February 	26, 	1980, 	the D i s t r i c t ' s 	governing 	board
adopted 	a 	resolution 	reducing 	the 	hours 	of 	certain 	cafeteria
services 	effective June 	30, 	1980. 	Alice Adams 	was 	one 	of 	the
two 	affected 	employees. 	She 	filed 	a written 	complaint 	pursuant
to 	the D i s t r i c t ' s 	personnel 	commission 	rules 	and 	regulations
requesting 	a 	formal 	administrative 	review of 	the 	governing
board's decision. 	As 	a 	part 	of 	that 	procedure, 	she 	requested
and 	received 	a 	hearing 	before 	a 	mutually 	agreed 	upon 	hearing
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officer. 	The 	hearing 	officer 	rendered 	written 	findings,
conclusions 	and 	recommendations 	to 	the p a r t i e s . 	The hearing
officer's 	recommendations 	were 	appealed 	to 	the Board 	of
Trustees. 	The 	Board 	is 	empowered 	to 	review a l l 	records 	and/or
conduct 	i t s 	own 	investigation 	and 	render 	a decision. 	The
decision 	of 	the 	Board 	of 	Trustees 	on 	an 	appeal 	is 	final 	and
conclusive.
The D i s t r i c t ' s Board 	of 	Trustees' 	Personnel 	Commission
rendered 	i t s decision 	rejecting Alice Adams 	appeal 	on
December 3, 	1980.
On February 	10, 	1981, 	the 	instant unfair 	practice charge
was 	filed.
This 	grievance/appeal 	procedure 	was 	created 	u n i l a t e r a l l y by
the D i s t r i c t 	and 	was 	not 	the 	result 	of 	the 	meet 	and 	negotiate
process; 	nor 	was 	it made 	a part 	of 	the 	contract 	between 	the
p a r t i e s .
DISCUSSION
Respondent 	bases 	i t s motion 	to 	dismiss 	on 	the 	contention
that 	the 	complained 	of 	acts 	occurred 	more 	than 	six months 	prior
to 	the 	date 	the 	unfair 	practice 	charge was 	filed. 	The 	subject
resolution was 	enacted 	February 	26, 	1980 	to 	be 	effective
June 	30, 	1980.
The Charging 	Party contends 	that 	the 	six-month 	statute 	was
tolled 	during 	the 	time 	the 	D i s t r i c t ' s 	Personnel 	Commission's
Merit System Administrative 	Appeal 	Process 	was 	processing 	the
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grievance 	filed by individual District 	employee. 	The grievance
was filed on June 12, 	1980. 	The Commission issued 	its decision
on December 	3, 	1980 denying the requested relief.
The Charging Party relies heavily on California Department
of Water Resources (198 0) 4 PERC 11177 and the rationale and
cases cited 	therein. 	In that case, 	a Public Employment
Relations Board 	(hereafter PERB) 	hearing 	officer 	faced 	a
similar 	set of circumstances 	(although 	this case arose under
the State Employer-Employee 	Relations 	Act, 	the parallel
section 	3514.5(a), 	is 	identical to 	3541.5 (a)) 	and 	set 	forth 	the
following 	legal 	analysis:
The DWR's motion to dismiss was partially
based on failure to 	file the charge within
the six-month limitation period. 	In
response, 	Charging 	Party cites California
precedent including Myers v. County of
Orange 	(1970) 	6 Cal.App.3	- 	d 626 and Elkins v.
Derby (1974) 	12 Cal.3d 410. 	These cases
indicate 	that 	the 	statute of 	limitations
will be 	tolled where 	there are alternative
remedies 	if the defendant will not 	be
prejudiced 	and 	specifically 	reject 	the 	rule
that a 	statute of 	limitations 	is 	tolled only
where the administrative remedy must be
exhausted prior 	to 	filing or 	a legal
action. 	Under Elkins, 	prejudice will not
occur 	if 	it 	is 	shown 	that defendant could
not reasonably claim surprise. 	Here, 	there
is no claim to surprise or prejudice by
DWR. 	Nor 	is 	it asserted 	that Armistead
failed 	to 	act 	in good 	faith 	in pursuing his
remedy before 	the State Personnel Board.
The 	judicial policy underlying 	the decisions
which toll statutes 	of 	limitations during
the pendency of 	interrelated 	administrative
proceedings in cases where the latter may be
dispositive of an essential element of a
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legal cause of action 	is founded on the need
for harmony and 	the avoidance of chaos 	in
the administration of justice. 	It avoids a
multiplicity of actions 	in cases having
common elements of law or 	fact or both. 	It
does 	not pressure 	litigants concurrently to
seek redress in two separate forums with the
attendant danger of 	conflicting decisions on
the same 	issue. 	It 	relieves litigants of
the pressure to outrace each other 	in
seeking an adjudication of one or the other
of the legal proceedings in a forum where he
may believe he has a greater chance of
prevailing. 	The orderly administration of
justice 	is 	best served by 	tolling the
statute of limitations on independent
actions 	at 	law until the 	final determination
of 	the 	interrelated 	administrative
proceeding. 	(Olson v. Sacramento 	(1974) 	38
Cal.App.3d 958, 9 65 	[113 Cal.Rptr. 664].)
Based on this California precedent, 	the hearing officer
found 	that 	the charging party's pursuit of 	a parallel 	remedy
before the State Personnel Board 	tolled 	the six-month 	statute
of limitation contained 	in Government Code section 3514.5.
DWR's motion to dismiss on that basis was denied.
The Respondent District, however, 	relies heavily on the
Washington Unified School District 	(1980) 	4 PERC 11108 case. 	In
that case, 	another PERB hearing officer faced the same set of
circumstances and 	set forth 	the 	following legal analysis:
The six-month limitation in section 3541.5
is similar 	to and 	apparently modeled 	after
section 10(b) 	[29 	U.S.C. 	section 160(b)] 	of
the National Labor Relations Act which
establishes 	a six-month limitation 	for
complaints issued by the general counsel.
The provision of section 3541.5 which
requires certain charges 	to be deferred 	to
the contract grievance machinery apparently
is 	a California codification of 	federal case
6

law. 	See generally, 	Spielberg Mfg. Co.
(1955) 	112 NLRB 1080 T36 	LRRM 1152] 	and
Collyer 	Insulated Wire 	(1971) 	192 NLRB 	837
[77 	LRRM 1931].
A careful 	reading of 	section 	3541.5 	shows
that 	its 	several 	parts operate 	together.
The 	section 	first 	establishes 	a 	six-month
time 	limitation 	to 	prevent 	the 	prosecution
of 	stale claims. 	Next, 	the section requires
that 	the 	grievance machinery 	of 	the 	contract
be 	used prior 	to 	the processes 	of 	the PERB
to 	resolve any dispute 	about conduct
prohibited 	both 	by 	the contract 	and 	the
EERA. 	Finally, 	the section provides 	that
the 	six-month 	time 	limitation 	shall 	not 	run
while 	a 	complaining 	party 	is 	exhausting 	the
contractual 	grievance 	machinery.
The 	portion 	of 	section 	3541.5 	which 	provides
for 	tolling 	the 	statute of 	limitations
pertains 	to 	'the 	time 	it 	took 	the charging
party to 	exhaust 	the grievance machinery.'
Although 	the words 	of 	the agreement' 	are
not used 	in the clause which 	relates 	to
tolling, 	it 	is apparent that the tolling
protection 	exists 	only while 	the parties 	are
attempting 	to exhaust 	contract 	grievance
machinery. 	There 	is 	no requirement that
unfair 	practice 	charges 	be deferred 	to any
grievance processes 	except 	those which 	exist
under 	an 	agreement 	between 	the parties.
Accordingly, 	there 	is 	no reason to 	toll 	the
statute of 	limitations 	for 	the 	use of any
grievance machinery outside of 	the
contract. 	The 	tolling 	provision 	is designed
to protect 	the 	rights of 	aggrieved 	parties
who 	are 	precluded 	from 	bringing an 	unfair
practice 	charge 	until 	they have 	first
exhausted 	the 	internal 	remedies 	of 	their
contract.
In the present case, 	the collective 	agreement did not
include 	a grievance 	procedure. 	The 	grievance procedure 	used
was 	one created 	by the District. 	The procedure 	was 	called 	a
Personnel Commission Administrative Appeal Procedure. 	Thus, 	if
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C.S.E.A. 	believed that the District's conduct amounted to an
unfair practice, 	it was not precluded by any existing
collective agreement from filing a charge 	immediately.
C.S.E.A. 	elected to use the District's Administrative Appeal
procedures, 	but it was not required to do so by either section
3541.5 or the collective agreement. 	Because there was no bar
to the 	immediate filing of an unfair practice charge, 	there was
no justification for 	the tolling of the time limitation.
Generally, 	tolling provisions exist only to protect the legal
rights of a person who cannot bring an action either because of
legal 	impairment or other justifiable cause.
In both Elkins, supra, and Myers, supra, there were no
legislative directives as to what circumstances would warrant
tolling. 	The decisions in these two cases manifest a judicial
attempt to mitigate the harshness of the statute of limitations
by satisfying what the courts believed was the reason for the
limitation. 	In the present case, we have legislative
direction, 	section 3541.5(a), 	as 	to the specific circumstances
under which the six-month statute of limitations can be
tolled. 	The statutory language 	is explicit. 	The facts of this
case do not present a situation 	in which there 	is statutory
authority to toll the six-month 	statute of limitations. 	There
was no "grievance machinery of the agreement" covering "the
matter at issue" during the period of time at issue and
therefore there 	is no legislative justification 	for 	tolling.
88

The Charging 	Party 	failed 	to 	follow the 	legislative mandate 	of
section 3541.5 at 	its peril.
There 	is 	an additional 	issue 	regarding 	the 	fact 	that 	the
party 	to 	the 	grievance/appeal 	procedure was 	the 	individual
employee 	and 	the Charging 	Party 	in 	this 	unfair 	practice charge
is the exclusive 	representative. 	There 	is a serious 	question
of whether 	a charging party can claim that 	a 	statute was 	tolled
as a result 	of an 	action to which 	it was 	not 	a party. 	However,
due to the above 	ruling, 	this 	question need 	not be 	addressed 	at
this time.
CONCLUSION
For 	the 	a b o v e - c i t e d 	reasons 	i t 	i s 	found 	t h a t 	u n f a i r
p r a c t i c e 	charge 	LA-CE-1310 	is 	dismissed 	for 	f a i l u r e 	to 	be 	f i l e d
w i t h i n 	t h e 	p e r i o d 	of 	time 	p r e s c r i b e d 	by 	s e c t i o n 	3 5 4 1 . 5 ( a ) .
ORDER
Charging 	Party's 	unfair 	practice 	charge 	is hereby 	dismissed
without 	leave 	to 	amend and 	the 	complaint 	previously 	issued
pursuant 	thereto 	is withdrawn. 	Charging Party may obtain
review of 	this dismissal 	by filing an appeal 	to 	the Board
itself within twenty 	(20) 	calendar 	days 	after 	service of 	this
dismissal 	(PERB Regulation 32630 (b)). 	Such appeal must be
actually 	received by 	the 	executive 	assistant 	to 	the Board
before 	the close of business 	(5:00 p.m.) 	on 	October 20, 	1981
in order 	to be 	timely filed. 	(PERB Regulation 	32135.) 	Such
appeal must 	be 	in writing, 	must 	be 	signed 	by the Charging Party
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or 	i t s 	agent, 	and 	must contain 	the 	facts 	and 	arguments 	upon
which the appeal 	is 	based. 	(PERB 	Regulation 	32630(d).) 	The
appeal must 	be 	accompanied by 	proof 	of 	service 	upon 	a l l
p a r t i e s . 	California Administrative 	Code, 	t i t l e 	8, 	part 	I I I ,
sections 	32135, 	32142 and 	32630(b) 	as 	amended.
DATED: 	October 7, 	1981
Hearing Officer
10
.