California State University, Hayward (PERB 0607H)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TOMMIE R. 	DEES,
Charging 	Party,
v.
CALIFORNIA STATE UNIVERSITY, 	HAYWARD,
Respondent.
)
)
)
)
)
Case 	No. 	SF-CE-192-H
PERB 	Decision 	No. 	607-H
January 2, 	1987
)
)
)
Appearance: 	Tommie R. 	Dees, 	on his own behalf.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	an 	appeal 	by
Charging 	Party of 	the 	partial 	dismissal 	of his 	first 	amended
unfair practice 	charge 	against 	Respondent, 	California 	State
University, 	Hayward 	(CSUH), 	and his appeal of the partial
refusal 	to 	issue 	a 	complaint 	and dismissal 	of 	the 	second
amended charge. 	In 	an effort 	to 	resolve 	all 	outstanding 	issues
before 	it, 	the 	Board has 	agreed 	to consolidate 	in one decision
Dees' 	two appeals.
I. 	THE APPEAL OF PARTIAL DISMISSAL OF THE 	FIRST AMENDED CHARGE
Of 	14 	separate 	allegations 	gleaned by 	the 	general 	counsel
from Charging 	Party's 	filings, 	a 	complaint 	issued on 	two and
the 	others were 	dismissed, 	either 	for 	untimely 	filing or 	for
failure 	to state 	a 	prima 	facie 	case.
)
______ )

On appeal, 	Charging 	Party requests 	that 	the 	case be
remanded, 	with 	instructions 	to 	the 	general 	counsel 	to assist
him 	in 	articulating his 	allegations 	so as 	to 	satisfy 	the
requirements 	of 	a 	prima 	facie 	case. 	With 	regard 	to 	the
allegations 	found 	untimely, 	Charging 	Party asserts 	that 	the
limitation 	period 	was 	tolled by his 	efforts 	to 	resolve 	those
matters 	through 	the 	contractual 	grievance 	machinery. 	The
appeal 	also 	asserts 	that 	the 	general 	counsel 	failed 	to 	consider
all 	of 	the allegations 	set out 	in 	the 	charge.
For 	the 	reasons 	that 	follow, 	we 	affirm 	in part 	and 	reverse
in 	part 	the 	general 	counsel's 	partial 	dismissal 	of 	the 	charge.
PROCEDURAL 	HISTORY
Tommie 	Dees 	filed his 	original 	charge on May 	21, 	1984. 	The
general 	counsel 	responded on August 	2, 	1984 with 	a 	letter
informing Dees 	that his 	charge, 	as 	framed, 	did not 	state a
prima 	facie 	case. 	The 	letter 	provided 	a 	detailed 	explanation
of 	the 	requirements 	of a 	prima 	facie 	case 	and 	invited 	Dees 	to
amend his 	charge. 	Dees 	filed an 	amended 	charge 	on August 	21,
1984. 	The 	general 	counsel's 	subsequent 	letter partially
dismissing the 	charge 	is 	dated 	September 	7, 	1984.
From 	the 	amended 	charge, 	the 	general 	counsel 	identified 	the
following 	14 allegations 	of unlawful 	conduct, 	all 	in 	the 	nature
of 	reprisals 	for 	engaging 	in 	activities 	protected by 	the 	Higher
lEducation Employer-Employee Relations Act 	(HEERA or Act):1
1HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
22

1. 	On or about June 	7, 	1983, 	Respondent,
acting 	through 	its 	agent 	Tony 	Rodriguez,
took 	adverse 	action 	against 	Charging 	Party
by 	keeping 	Charging 	Party 	under 	personal
observation, 	rather 	than 	allowing his
leadworker 	or 	supervisor 	to do 	their 	normal
work duties. 	This 	type of 	reprisal
continued 	on 	a 	regular basis 	until 	Charging
Party was 	forced 	to 	take 	sick 	leave 	in
October 	1983.
2. 	On or about June 24, 	1983, 	Respondent,
acting 	through 	its 	agent 	Tony Rodriguez, 	had
Charging 	Party 	"written-up" 	because 	Charging
Party was 	out of his 	area 	of work 	attending
a 	grievance 	hearing 	regarding 	a 	physical
threat by Mr. 	Ruiz 	(CSU supervisor).
3. 	On or about June 	27, 	1983, 	while
Charging 	Party was 	on his 	regularly
scheduled break 	at 	1.30 	[sic] 	p.m., 	Mr. 	T.
Rodriguez, 	ground 	supervisor 	for 	Respondent,
saw him 	and 	demanded 	to know 	why he 	was 	out
of his 	area. 	Mr. 	Rodriguez chased Charging
Party 	and 	threatened 	to 	"write 	him 	up" 	for
insubordination 	and being 	out 	of his 	area 	of
work.
4. 	On or about October 11, 	1983, 	Laverne
Diggs, 	Labor Relations 	Specialist 	for
Respondent, 	walked out of a Level 	III
grievance 	meeting 	while 	Charging 	Party 	was
still 	providing 	testimony. 	Both 	Charging
Party and union 	steward, 	Gale 	Pemberton
objected 	to Ms. 	Diggs' 	action.
herein 	are 	to 	the 	Government 	Code.
Section 	3571 provides, 	in relevant part:
It 	shall 	be 	unlawful 	for 	the higher
education 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate 	against employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
33

Subsequently, 	Laverne 	Diggs 	denied 	this
grievance.
5. 	On or about October 11, 	1983, 	Charging
Party 	received 	notice 	that he 	was 	being
transferred 	effective 	October 	18 by
Respondent 	into 	another 	area 	(Science
Building) 	which 	Charging 	Party considers
unsafe. 	Charging 	Party's 	doctor 	agrees 	that
this 	area 	is 	not 	safe 	for 	Charging 	Party,
yet 	Respondent 	refuses 	to 	transfer him back
to the Administration 	Building. 	To date,
Respondent has 	not 	provided 	Charging 	Party
with 	reasonable 	accommodation 	by placing 	him
in a 	safe 	area. 	This 	issue 	is presently
before 	CSU as 	a 	Level 	III 	grievance 	filed by
the 	California 	State 	Employees 	Association
(CSEA) 	on April 	16, 	1984. 	The Level 	I
grievance 	on 	this 	issue 	was 	denied by 	CSU on
February 21, 	1984; 	the Level 	II grievance on
this 	issue 	was 	denied by CSU on March 	28,
1984.
6. 	On or about October 18, 	1983, 	Charging
Party was 	placed 	on 	medical 	leave by his
doctor 	due 	to the 	stress 	of 	the 	new work
site 	from the October 	11, 	1983 	transfer.
Employer 	knew 	that 	Charging 	Party was 	on
medical 	leave, 	yet 	Charging 	Party was 	placed
on AWOL 	(leave without pay) 	which was
subsequently 	changed 	to 	sick 	leave 	on
January 11, 	1984 after 	a grievance was 	filed
by 	the 	California 	State 	Employees
Association.
Mr. 	Rodriguez 	(supervisor at CSU)
acknowledged at 	the October 27, 	1983 	staff
meeting 	that 	he 	had 	forgotten 	that he 	was
told 	of 	Charging 	Party's 	medical 	absence;
yet 	Respondent 	met 	through 	the 	second 	level
of 	the 	contract 	grievance 	procedure 	before
it 	agreed 	to 	convert 	the AWOL time 	to
medical 	leave.
7. 	On October 	26, 	1983, 	Charging Party was
officially 	placed 	on 	sick 	leave 	by
Respondent 	as 	CSU determined 	Charging 	Party
could 	not 	work 	despite his 	doctor's 	letters
to the 	contrary. 	Thus, 	Charging 	Party was
forced 	to use his 	medical 	leave.
44

8. 	On October 12, 	1983, 	November 1, 	1983,
and November 	11, 	1983, 	and continuing to the
present 	time, 	Charging 	Party has been 	forced
to provide 	medical 	statements 	verifying 	that
Charging 	Party can work. 	His 	only
limitation 	is 	that 	it be 	a 	reasonably 	secure
area.
9. 	On November 	10, 	1983, 	Tony Rodriguez and
Mario 	Ruiz 	(supervisors 	at 	CSU) 	provoked and
exacerbated 	Charging 	Party's 	stressful
condition 	by 	sneaking 	up 	behind 	Charging
Party and physically harassing him. 	They
laughed 	at 	Charging 	Party 	when he 	reacted 	to
their 	knowing 	attempt 	to physically harass
him. 	Prior 	to 	this 	incident, 	Charging 	Party
had been 	on 	medical 	leave 	from 	November 	1-8,
1983, 	because of 	stress 	and 	the 	employer had
knowledge 	of 	Charging 	Party's 	stressful
condition.
10. 	On November 10, 	1983, 	Charging Party
was 	again 	placed 	on 	medical 	leave by his
treating 	physician 	following 	the 	provocation
described 	above.
11. 	On December 	13, 	1983, 	two letters 	from
the 	University were 	sent 	to 	Charging 	Party
at 	the wrong address, 	one postmarked
November 30, 	1983, 	and the other postmarked
December 	12, 	1983. 	Each 	letter 	stated 	that
a 	meeting 	was 	to be held 	at 	a 	different
time, 	thus 	confusing Charging Party.
12. 	Charging Party alleges 	that 	it 	is 	not
proper 	for 	State 	Compensation 	Insurance 	Fund
material 	to be 	placed 	in his 	personnel 	file
for 	anyone 	to 	inspect. 	Charging 	Party
requests 	that 	CSU remove 	the Workers'
Compensation 	material 	from his 	personnel
file.
13. 	On December 22, 	1983, 	Respondent
refused 	to 	meet 	with 	Charging 	Party 	and his
union 	representative, 	Marilyn 	Sardonis,
regarding 	the 	grievances 	as 	they had
previously agreed 	in 	a 	letter. 	At 	that
time, 	Mr. 	Lindemon, 	Personnel Officer for
CSU, 	agreed 	to respond 	in writing 	the 	reason
for his 	refusal 	to meet with 	the 	union
ut
	5

regarding 	the grievances. 	Mr. 	Lindemon has
failed 	to 	respond 	to date.
14. 	On or about March 8, 	1984, 	Respondent
sent 	a 	letter 	to 	Charging 	Party demanding 	to
know whether he was 	(1) 	to be 	placed on
unpaid leave status; 	(2) 	return to work; 	or
(3) 	terminate his 	employment with CSU.
The 	general 	counsel 	issued 	a 	complaint based 	on 	allegations
5 and 6, 	dismissed allegations 1, 	2, 	3, 	4, 	7, 	9 and 10 as
untimely, 	and dismissed allegations 8, 	11, 	12, 	13 and 14 for
failure 	to 	state 	a 	prima 	facie 	case.
DISCUSSION
Charging 	Party's 	Request 	for Assistance
Charging 	Party made 	a 	written 	request 	for 	assistance 	in 	a
letter dated May 17, 	1984, 	presumably attached to his 	original
charge 	of 	the 	same 	date. 	On 	appeal, 	he 	requests 	that 	the 	case
be 	remanded 	and 	that he be 	given 	assistance 	in 	drafting his
charge.
There 	are 	two 	PERB 	Regulations2 which pertain 	to
assistance 	in 	unfair practice 	charge 	cases. 	Regulation
32620(b)(l) 	requires 	the 	Board 	agent 	to assist 	the 	charging
party 	in 	properly 	filing 	the 	charge 	in 	accordance 	with
Regulation 	32615. 	Regulation 	32615 	requires 	that a 	charge
contain 	certain 	information, 	including 	the 	names 	and 	addresses
of 	the parties, 	a 	clear 	and concise 	statement of 	the 	facts
alleged 	to 	constitute 	an 	unfair practice, 	and whether 	a
2pERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 	et seq.
66

memorandum of 	understanding 	exists between 	the 	parties. 	The
assistance 	required by Regulation 	32620(b)(l) 	is 	thus best
characterized as 	"technical" 	and 	is 	limited 	to 	facilitating
proper 	adherence 	to Board procedures. 	There 	is 	nothing 	in 	the
record 	which 	reflects 	that 	Charging 	Party here 	did 	not 	receive
such 	assistance. 	While 	arguably 	the 	statement 	of 	facts 	could
be 	more 	"clear 	and 	concise," 	the 	charge 	was 	properly 	filed 	in
accordance 	with 	Regulation 	32615. 	Actual 	drafting 	of 	the
charge 	for Charging Party, 	or other 	"legal" 	assistance, 	is not
contemplated by Regulation 	32620(b)(l).
However, 	Regulation 	32163 	does 	provide 	for 	"legal"
assistance 	in 	exceptional 	circumstances:
If a 	party 	is 	unable 	to retain 	counsel 	or
demonstrates 	extenuating circumstances, 	as
determined by the 	Board, 	a 	Board 	agent 	may
be 	assigned 	to 	assist 	the party 	in
accordance 	with 	Board 	policy.
It 	is 	instructive 	to note 	that, 	by its 	terms, 	Regulation 	32163
is discretionary, 	not mandatory. 	Thus, 	it provides no
entitlement 	to 	legal 	assistance, 	and the 	decision 	to provide
legal 	assistance 	lies 	solely 	in 	the 	sound 	discretion 	of 	the
Board. 	Board 	policy 	underlying 	Regulation 	32163 	was 	outlined
in Los Angeles Unified School 	District et al. 	(1984) 	PERB
Decision No. 	396-H, 	at pp. 	6 and 7.
In 	determining appropriate 	policy 	in 	this
area, 	we 	are 	guided by the 	statutory 	scheme
of 	the 	Acts 	which we 	administer. 	[Footnote
omitted.] 	Unlike both 	the 	National 	Labor
Relations 	Board 	and 	the 	Agricultural 	Labor
Relations 	Board, 	this agency 	is 	not
structured 	to prosecute 	cases 	on behalf 	of
77

charging parties. 	Rather, 	the parties
themselves 	are 	fully 	responsible 	for 	the
preparation 	and 	presentation 	of 	their
cases. 	Thus, 	the Board's discretion to
grant 	legal 	assistance 	is 	properly 	exercised
with 	the 	utmost 	restraint.
Such 	determination 	must be 	made 	on 	a
case-by-case basis, 	considering, 	at a
minimum, 	the 	abilities 	and experience of 	the
party 	requesting assistance, 	the 	difficulty
and 	complexity of 	the 	case, 	and 	the public
interest 	in 	resolution 	of 	the 	issues
involved 	therein.
We 	conclude 	that 	the 	instant 	case 	is 	not 	one 	in which 	legal
assistance 	should be 	provided. 	We 	recognize 	that 	lay persons
unable 	to 	retain 	counsel3 may be handicapped by 	their 	lack 	of
legal 	training 	in drafting 	"clear 	and 	concise" 	charges.
However, 	lay persons 	should be 	able 	to accurately describe 	the
facts 	and 	circumstances 	which 	support 	their 	claims. 	Regulation
32163 	was 	not 	intended 	to provide 	all 	unrepresented 	lay persons
with 	legal 	assistance. 	Given 	the 	statutory 	scheme 	under 	which
the 	PERB operates, 	it 	is 	clear 	that 	the 	legal 	assistance
provided by 	Regulation 	32163 	represents 	a 	very 	narrow 	exception
to 	the 	normal 	burden 	on 	the parties 	themselves 	to be 	fully
responsible 	for 	the 	preparation 	and 	presentation 	of 	their 	cases.
Dees' 	statement 	of 	facts 	supporting his 	charge 	is
voluminous 	and not well 	organized. 	However, 	Dees 	did an
8
33nees	pees 	in 	fact 	did 	receive 	some 	assistance 	from private
counsel, 	albeit, 	prior to 	filing his charge. 	He also had the
benefit 	of his 	union's 	prior 	efforts 	in 	articulating
descriptions 	of 	most 	of 	the 	same 	events 	in 	the 	context 	of
filing 	grievances.

adequate 	job of 	describing 	all 	adverse 	acts 	and 	conduct 	which
he 	asserts 	violate 	the Act. 	The 	sufficiency of his 	charge 	can
be 	accurately 	judged 	upon 	the 	information he has 	provided. 	It
is 	very 	unlikely 	that 	careful 	drafting 	of 	the 	charge 	could 	save
any of 	the 	allegations 	that would otherwise 	fail. 	Thus, 	the
instant 	case 	does 	not 	reflect 	the 	type 	of 	extenuating
circumstances 	which 	compel 	the 	extension 	of 	legal 	assistance
pursuant to Regulation 32163.4 4	4
Identification 	of 	All 	Alleged 	Violations
A careful 	reading 	of 	the 	amended 	charge 	reveals 	that 	the
dismissal 	letter 	does 	not 	reflect all 	of 	Dees' 	factual
allegations. 	However, 	these omissions are, 	for the most part,
nonprejudicial.
Dees 	alleged 	various 	contract 	breaches 	based 	upon 	proposals
dealing with 	working 	conditions 	contained 	in 	the 	minutes 	of 	a
groundskeepers' 	meeting 	led by Supervisor 	Tony 	Rodriguez.
However, 	no contract breach 	(and, 	therefore, 	no independent
violation of 	the Act) 	occurred, 	for 	the proposals were
withdrawn 	before 	implementation 	when 	the 	exclusive
representative 	objected 	that 	they would 	violate 	the 	contract.
Dees 	also made 	general 	allegations 	of 	poor 	working 	conditions
for 	all 	groundskeepers. 	Without 	further 	allegations 	that 	such
9
4	4Irt	t 	should be 	noted 	that, 	in 	the 	Board 	agent's 	August 	2,
1984 warning 	letter 	to 	Dees, 	she provided a 	clear 	and detailed
explanation 	of 	the 	requirements 	of 	a prima 	facie 	case 	and of
the 	existing deficiencies 	in 	the 	original 	charge.
9

conditions 	were 	somehow 	discriminatory 	or 	interfered 	with
protected 	rights 	under HEERA, 	there 	can be 	no violation 	of 	the
Act.
More 	troubling 	is 	the general 	counsel's 	failure 	to evaluate
allegations based on 	events prior to June 	3, 	1983, 	the date of
Dees' 	first 	formal 	grievance. 	The general 	counsel 	presumably
concluded 	that 	no protected 	activity prior 	to 	June 	3, 	1983 	was
alleged, 	so no 	reprisal 	could have occurred. 	However, 	the
amended 	charge 	appears 	to assert 	that 	Dees 	engaged 	in 	other
forms 	of 	arguably protected 	activity, 	chiefly by complaining
about 	the 	groundskeepers' 	working conditions, 	for which he 	was
harassed 	and 	intimidated. 	Again, 	there was 	no prejudice, 	for
any 	charge 	based 	on 	these 	events 	would be 	untimely 	for 	the
following 	reasons.
Most 	of 	the 	events prior 	to June 	3, 	1983 were 	never 	the
basis 	for 	any grievance 	filed by 	Dees, 	nor was 	there 	any other
possible 	basis 	for 	tolling 	the 	six-month 	statute 	of
limitations.5 (Dees' 	original 	charge 	was 	filed May 	21,
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the
board 	shall 	not 	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.
(See 	discussion of equitable 	tolling at 	footnote 	6, 	p. 	12.)
10
SSHEERA	HEERA 	section 	3563.2 provides, 	in relevant part:
• 	• 	• 	• 	• 	• 	• 	•

1984.) 	The 	remaining 	allegations 	from 	this 	period were 	the
subject of Dees' June 	3 	and June 10, 	1983 	grievances. 	The
former was 	resolved 	in Dees' 	favor on or about June 10, 	1983.
The 	latter 	was 	won 	in part 	and denied 	in part, 	the 	final 	denial
(at 	level 	III) 	coming on October 17, 	1983, 	and the union's
final 	decision 	not 	to arbitrate 	coming on 	or 	about 	November 	12,
1983. 	Consequently, 	any tolling effect 	from 	the 	June 	3 	and
June 	10, 	1983 	grievances 	was 	insufficient 	in duration 	to make
the 	allegations 	timely.
There 	are 	three 	alleged 	incidents 	occurring 	after 	Dees'
June 	3, 	1983 	grievance which were not 	noted 	in 	the 	dismissal
letter. 	They are as 	follows:
A. 	On July 16, 	1983, 	Rodriguez gave 	Dees 	a work assignment
which 	was 	inconsistent 	with 	instructions 	given by 	leadworker,
Tonte 	Sarmiento. 	The assignment was 	impossible 	and unsafe, 	and
it 	violated 	established 	policy which 	was 	that 	assignments 	were
to 	come 	from 	the 	leadworkers.
B. 	On November 	11, 	1983, 	Rodriguez wrote a memo stating
that he 	and Mario 	Ruiz 	could 	not work 	with 	Dees. 	The 	memo
falsely 	claimed 	that 	Dees 	refused 	to 	accept 	any 	form 	of
communication 	from 	Rodriguez 	or 	Ruiz. 	Rodriguez 	also 	requested
that 	Dees 	be placed 	on 	leave.
C. 	On November 	16, 	1983, 	Dees 	received a disciplinary
letter 	from 	Vice 	President 	Robert 	Kennelly. 	The 	letter 	was
delivered 	to Dees' 	home by his 	co-workers. 	(The 	letter
11

evidently had 	something 	to do with 	Dees' 	leave 	status; 	Dees
objects 	to both 	its 	contents 	and 	its 	delivery.)
While 	the 	three 	allegations 	appear 	to be untimely, 	all 	were
arguably 	tolled6 by their 	inclusion 	in 	Dees' 	various
6 The 	doctrine 	of 	equitable 	tolling 	was 	embraced by 	the
Board 	in 	State 	of 	California, 	Department of Water 	Resources 	et
al. 	(1981) 	PERB Order No. 	Ad-122-S. 	The statute of limitations
is 	tolled by efforts 	to use a 	grievance 	procedure 	and begins 	to
run 	again 	when 	a 	final 	decision 	on 	the 	grievance 	is 	reached.
See 	Los Angeles 	Unified 	School 	District 	(Siamis) 	(1983) 	PERB
Decision No. 	311.
The 	dissent 	fundamentally 	disagrees 	with 	the 	Board's 	authority
to 	apply 	the 	principle of 	equitable 	tolling. 	It 	argues 	that
section 	3563.2(a) 	imposes 	a 	jurisdictional 	limitation 	on 	the
Board's 	ability to 	issue a 	complaint. 	We 	disagree. 	The 	Board
has 	the 	authority 	to 	determine 	and, 	by 	regulation 	and 	case 	law
(see 	cites 	at p. 	27 of dissent), 	has 	consistently 	found 	that 	the
language 	of 	EERA section 	3541.5(a)(2), 	SEERA section 	3514.5(a)(2)
and 	HEERA 	section 	3563.2(a) 	setting 	forth 	the 	six-month 	statute
of 	limitations 	is 	not 	jurisdictional. 	The theory, 	simply put, 	is
that 	PERB 	is 	a 	constitutional 	agency empowered by 	the 	Legislature
to 	exercise 	judicial 	functions 	to effectuate 	the purposes 	of 	the
statutes 	entrusted to it 	(cf. 	Perry Farms, 	Inc. 	v. 	Agricultural
Labor 	Relations 	Board 	(1978) 	86 	Cal.App.3d 	448 	and 	Pacific 	Legal
Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	197, 	fn. 	19). 	Its
interpretation 	of 	section 	3563.2(a) 	allowing 	for 	equitable
tolling 	best 	effectuates 	the 	intent 	of 	the 	Legislature 	in
promulgating 	HEERA.
The 	dissent 	acknowledges 	that 	"shall" 	has 	been held 	in 	some
cases 	to be 	directory rather 	than 	mandatory 	(Pappadatos 	v. 	Superior
Court 	(1930) 	209 Cal. 	334, 	335). 	Whether the language should be
construed 	as 	mandatory or 	directory depends 	on 	the 	intention 	of
the 	Legislature 	in 	enacting 	the 	section. 	Estate 	of Mitchell 	(1942)
20 C.2d 48, 	51. 	In 	the application of 	the 	statute of 	limitations
language 	under 	EERA, 	SEERA and HEERA, 	the 	Board 	is 	directed by
the 	Legislature 	to 	refuse 	to 	issue 	complaints 	that 	arise 	more
than 	six months 	prior 	to 	filing, 	but 	that 	requirement may be
waived 	if 	not 	timely 	asserted, 	or 	it 	may be 	tolled 	following 	the
standards 	set 	forth 	in 	San 	Dieguit	- 	o 	Union 	High 	School 	District
(1982) 	PERB 	Decision No. 194. 	Any other 	construction
might 	well 	operate 	to 	discourage 	bilateral
dispute 	resolution. 	Grievants 	would be
12

grievances. 	Allegation A was 	included 	in 	Dees' 	July 28, 	1983
grievance 	and 	reappeared 	in his April 	16, 	1984 	level 	III
grievance. 	The history of 	the 	July 28, 	1983 	grievance 	and 	its
relationship to the April 	16, 	1984 grievance 	are unclear.
Apparently, 	the April 	16, 	1984 grievance was 	still 	pending at
the 	time 	Dees' 	original 	charge was 	filed. 	Whether 	the
allegation 	was 	the 	subject 	of 	a 	grievance 	continuously 	from
July 	28, 	1983 	forward 	(and 	thus 	tolled) 	cannot be determined
from 	the 	record before us. 	Allegations 	B and C were 	included
in Dees' 	April 	16, 	1984 level 	III grievance. 	Assuming this
grievance 	was 	indeed 	pending when 	the 	original 	charge 	was
filed, 	the 	statute 	of 	limitations was 	tolled.
Nevertheless, 	if 	allegations A, 	B and C 	fail 	to state prima
facie 	cases, 	their 	timeliness 	need not be decided. 	To state a
prima 	facie 	case of 	reprisal, 	charging parties 	must 	allege
facts 	sufficient 	to 	raise 	the 	inference 	that 	their 	exercise 	of
rights 	guaranteed by 	the 	HEERA was 	a 	motivating 	factor 	in 	the
forced 	to 	file 	unfair practice 	charges 	in
the 	first 	instance 	in 	order 	to protect 	their
right 	to access 	to PERB. 	Voluntary
resolution 	would 	be 	replaced 	by
litigiousness. 	State of 	California,
Department of Water Resources et al., 	supra.
Similar 	language 	in 	the 	National 	Labor 	Relations 	Act has
long been 	considered 	not 	to be 	jurisdictional 	(see 	NLRB 	v.
Vitronic 	Division 	of 	Penn Corp. 	(CA 8 	1979) 	630 F.2d 	561 	[102
LRRM 2753] 	and cases 	cited 	therein). 	The principle of equitable
tolling has 	been 	approved 	and 	adopted 	in 	cases 	adjudicating
disputes 	under 	each 	of 	the 	statutes 	administered by PERB, 	and
there 	is 	no 	need here 	to 	reargue 	or 	relitigate 	those 	cases.
13

employer's 	decision 	to engage 	in 	the 	conduct 	complained of.
California 	State 	University, 	Sacramento 	(1982) 	PERB 	Decision
No. 	211-H. 	To establish 	this 	"nexus" between the protected
activity 	and 	the 	complained-of 	conduct, 	charging parties 	must
allege 	that 	the 	employer had knowledge 	of 	the 	protected
activity, 	plus 	some 	other 	factor 	supporting 	the 	inference 	of
unlawful 	motive. 	The 	most 	common of 	such 	factors 	are 	the
timing 	of 	the 	employer's 	conduct 	in 	relation 	to 	the 	employee's
performance 	of 	protected 	activity, 	the 	employer's 	disparate
treatment 	of employees 	engaged 	in 	such 	activity, 	the 	employer's
departure 	from 	established 	procedures 	and 	standards 	when
dealing with 	such 	employees, 	and 	the 	employer's 	inconsistent 	or
contradictory 	justifications 	for 	its 	actions. 	Novato Unified
School 	District 	(1982) 	PERB Decision No. 	210.
The 	incident 	described 	in 	Allegation 	A took 	place 	on
July 16, 	1983, 	within 	six weeks 	after 	Dees had 	filed his 	first
two 	grievances, 	and 	less 	than 	a month after 	Dees 	prevailed 	in
his June 	3, 	1983 grievance 	(on or about June 	20, 	1983). 	The
work 	assignment was 	allegedly adverse 	in 	that 	it 	was 	impossible
and 	unsafe, 	and 	it 	allegedly violated 	the 	existing policy on
assignments. 	This, 	on its 	face, 	is enough to constitute a
prima 	facie 	case. 	The 	sufficiency of 	allegations 	B and 	C
cannot be 	accurately 	evaluated 	without 	reviewing 	the 	contents
of 	the 	Rodriguez 	and 	Kennelly documents, 	which are 	not 	in 	the
record before 	us.
14

In 	sum, 	remand 	to 	the 	general 	counsel 	is 	necessary to
determine 	if 	the 	statute 	of 	limitations 	was 	arguably 	tolled 	as
to the three allegations and, 	if so, 	to determine 	if
allegations 	B and 	C 	state 	prima 	facie 	violations 	of 	the 	Act.
The 	Allegations 	Dismissed 	as 	Untimely
The general 	counsel dismissed allegations 1, 	2, 	3, 	4, 	7, 	9
and 	10 	above because 	they occurred more 	than 	six 	months 	prior
to 	the 	filing of 	Dees' 	original 	charge. 	The dismissal 	letter
made no mention of 	tolling, 	and 	Dees' 	appeal 	raises 	this 	issue.
Allegation 	1 	concerns 	allegedly 	unwarranted 	personal
surveillance 	(constituting harassment) 	of 	Dees by 	supervisor
Rodriguez, 	covering a period 	from approximately June 	7, 	1983 	to
approximately October 	18, 	1983, 	when 	Dees 	left work on a
medical 	leave. 	This 	entire period 	is 	indeed outside 	the
statute of 	limitations 	(charge 	filed May 	21, 	1984). 	The
allegation 	does 	not 	appear 	to be 	the 	subject 	of 	a 	grievance
until April 	16, 	1984. 	However, 	as noted above, 	the April 16,
1984 grievance was 	at 	level 	III. 	It 	is 	not 	clear 	from the
record 	if 	it was 	initiated at 	that 	level 	or 	was 	filed 	earlier
at 	level 	I or 	II, 	or 	if tolling began earlier due 	to activities
in preparation 	for 	the April 	16, 	1984 grievance. 	Further
investigation 	is 	necessary 	to 	determine 	when 	tolling 	arguably
began 	and 	whether 	the 	allegation 	includes 	acts 	within 	the
expanded 	limitations 	period.
Allegations 	2 and 	3, 	like 	allegation A above, 	appeared
first 	in 	Dees' 	July 28, 	1983 grievance and later 	in his
15

April 	16, 	1984 grievance. 	Once again, 	because 	the history of
these 	two 	grievances 	and 	their 	relationship 	to each 	other 	are
unclear, 	further 	investigation 	is 	required 	to determine 	the
timeliness 	of 	allegations 	2 	and 	3.
The 	need 	for 	remand as 	to allegations 	1, 	2 and 3 	is 	not
obviated by 	further 	analysis 	of 	their 	sufficiency, 	as 	all 	three
state 	prima 	facie 	violations. 	Identifiable 	protected 	activity
within 	the 	knowledge 	of 	the 	alleged perpetrators 	is 	reflected
by 	Dees' 	June 	3, 	1983 	grievance 	(in which he prevailed on
June 20, 	1983), 	and all 	three actions purportedly taken 	in
reprisal 	were 	indeed 	adverse 	and were 	close 	enough 	in 	time 	(all
took place, 	at least 	in part, 	before the end of June 	1983) 	to
the 	protected 	activity 	to 	raise 	an 	inference 	of 	unlawful 	motive..
Allegation 	4 	alleges 	that 	Laverne 	Diggs 	walked out 	of 	an
October 	11, 	1983 grievance meeting while 	Dees was 	still
providing testimony. 	This 	allegation, 	like allegation 	1, 	was
not 	the 	subject of a 	grievance until April 	16, 	1984. 	It 	is
thus 	untimely unless, 	upon 	remand, 	further 	investigation
reveals 	that 	the 	limitations 	period 	was 	arguably 	tolled 	prior
to April 	16, 	1984 	(more specifically, 	April 	11 or earlier).
The 	allegation 	is 	otherwise 	sufficient 	to 	state 	a prima
facie 	case. 	Though 	the 	general 	counsel 	couched 	the 	allegation
as 	one of 	reprisal, 	it may also be viewed 	simply as 	an
allegation 	of 	interference 	with protected 	rights. 	The
presentation of grievances 	is 	a protected 	right 	under 	the Act.
16

See 	The 	Regents 	of 	the University of 	California 	(Berkeley)
(1983) 	PERB Decision 	No. 	308-H. 	Assuming 	it 	is 	true 	that Diggs
walked out 	of 	the 	grievance 	meeting 	while 	Dees 	was 	still 	making
his 	presentation, 	her 	action 	arguably 	caused 	some harm 	to 	this
protected 	right. 	Such a 	showing of possible harm 	is 	adequate
to state 	a prima 	facie 	case of 	interference with, 	or denial 	of,
protected rights. 	See Novato, 	supra.
Based 	upon 	the 	record, 	allegation 	7 	appears 	to be
incorrectly 	stated 	in 	the 	dismissal 	letter. 	The 	amended 	charge
and Dees' 	April 	16, 	1984 grievance 	state 	that he was 	officially
placed on AWOL 	(absent without 	leave) 	time, 	not sick 	leave, 	on
October 	26, 	1983. 	The 	record 	reflects 	that 	Dees 	filed a
grievance 	over 	the AWOL time on 	November 	3, 	1983, 	which he won
at 	level 	II on or about January 11, 	1984. 	The AWOL issue 	is
covered by allegation 	6, 	on which a 	complaint did 	issue, 	and
need 	not 	be 	further 	addressed here.
The 	timing 	of 	the 	conduct 	described 	in 	the 	remaining part
of allegation 	7, 	i.e., 	that 	Respondent 	forced Dees 	to 	remain 	on
medical 	leave 	despite his 	doctor's 	letters 	attesting 	to his
fitness 	to work, 	is 	unclear, 	though presumably it occurred
sometime after October 18, 	1983, 	when Dees 	first went on
medical 	leave. 	This 	allegation 	does 	not appear 	in 	any of 	Dees'
grievances, 	nor 	is 	there 	any other basis 	reflected 	in 	the
record 	for 	tolling 	the 	limitation period. 	Thus, 	to be 	timely,
the 	adverse 	action must have 	taken place 	on 	November 	21, 	1983
or 	later. 	The 	record before 	us 	is 	inadequate 	to determine 	the
17

timing of 	the 	conduct described 	in 	allegation 	7; 	thus, 	remand
is 	appropriate. 	Because we 	are unable 	to 	fix the 	time 	of 	the
alleged adverse 	action, 	we 	are 	unable 	to determine 	if 	it was
close 	enough 	in 	time 	to constitute 	a 	sufficient 	nexus between
the 	adverse 	action 	and 	the 	protected 	activity. 	We 	are 	also
unable 	to 	determine 	from 	the 	record 	if 	Respondent's 	action
arguably 	violated 	established 	policies 	or 	if 	any 	other 	factor
was 	present which provides 	a 	sufficient 	nexus. 	See 	Novato,
supra. 	Consequently, 	if 	the allegation 	is 	timely, 	further
investigation 	would 	also be 	necessary 	to 	determine 	if 	a 	prima
facie 	violation 	is 	stated.
The 	incidents 	included 	in 	allegations 	9 and 	10, 	both
occurring on November 10, 	1983, 	were subjects of Dees'
April 	16, 	1984 grievance. 	Thus, 	the 	statute of 	limitations was
tolled at 	least as 	of 	that 	date 	forward, 	making 	these
allegations 	timely. 	The 	nature of 	the 	acts 	alleged 	in
allegation 	9, 	in 	conjunction with 	CSUH's 	knowledge 	of 	Charging
Party's 	protected 	activities 	and 	occurring 	relatively 	soon
after 	a 	string of 	such 	activities by 	Dees 	(the 	latest 	being his
November 	3, 	1983 grievance), 	do constitute a prima 	facie case.
Therefore, 	we 	shall 	order 	that 	allegation 	9 be 	added 	to 	the
pending 	complaint. 	Allegation 	10, 	which 	states 	only that 	Dees
was 	placed on medical 	leave by his physician, 	is merely
evidence 	of damage 	suffered due 	to 	the 	acts 	alleged 	in
allegation 9 	(or earlier acts). 	No additional 	acts of
Respondent are alleged; 	thus, 	no additional 	violation 	is
18

alleged. 	Therefore, 	we 	shall 	affirm 	the 	dismissal 	of
allegation 	10.
The 	Allegations 	Dismissed 	for
Failure 	to 	State 	a 	Prima 	Facie 	Case
For 	the 	reasons 	that 	follow, 	we 	affirm 	the 	dismissal 	of
allegations 	8, 	11, 	12, 	13 and 14 for 	failure to state a prima
facie 	violation.
Assuming 	that 	Respondent had knowledge 	of 	Dees' 	various
protected 	activities, 	we 	find 	that 	Charging 	Party 	failed 	to
allege 	any additional 	factors 	sufficient 	to 	reflect 	a 	nexus
between 	these 	activities 	and 	the 	complained-of 	conduct. 	Thus,
no 	inference 	of 	unlawful 	motive 	is 	raised by 	these 	allegations
and 	no prima 	facie 	violations 	are 	stated.
In 	allegation 	8, 	the 	requests 	for 	verification 	of 	Dees'
medical 	status 	appear 	to 	coincide 	with his 	various 	medical
leaves 	(the October date should be the 21st, 	not the 12th). 777
Dees 	did 	not 	allege 	that 	these 	requests 	reflected disparate
treatment 	or 	a 	departure 	from established procedures. 	Further,
the 	general 	counsel's 	investigation 	revealed 	that 	the 	requests
were 	apparently 	consistent 	with 	established 	practice.
Allegations 	12 	and 	14 	fail 	for 	the 	same 	reasons.
7While 	Dees 	alleged 	that he 	continued 	to 	receive 	requests
for 	verification 	up until 	the 	time 	of 	the 	filing of his 	charge,
he 	specifically 	mentioned 	only 	the 	three 	requests 	listed by 	the
general 	counsel 	and 	made 	no allegations 	concerning 	the 	timing 	or
circumstances 	surrounding 	any 	subsequent 	requests.
19

Allegation 	11 	merely alleges 	that 	CSUH 	sent 	two 	letters
containing different 	times 	for 	a 	scheduled meeting. 	Though
they were 	postmarked on 	different 	dates, 	they apparently
arrived 	on 	the 	same 	day, 	confusing 	Dees 	as 	to 	the proper 	time
of 	the meeting. 	These 	facts, 	even 	if taken as 	true, 	do not
reflect 	any action 	taken 	against 	Dees 	in 	reprisal, 	and 	Dees
failed 	to 	allege 	any additional 	facts 	that 	would 	shine 	a
different 	light 	on 	circumstances 	that were 	more 	than 	likely out
of 	the 	control 	of 	CSUH or, 	at worst, 	the 	result of an 	innocent
mistake. 	Further, 	the date 	of 	the meeting was 	clarified as
soon 	as 	Dees' 	attorney called 	to 	inquire 	about 	the 	correct
date. 	As 	alleged, 	these 	facts 	simply are 	not 	susceptible 	to an
interpretation 	reflecting 	an 	unlawful 	motive.
Allegation 	13 	is 	based upon 	an 	alleged 	refusal 	to meet 	with
Charging 	Party 	and his 	representative 	at 	a 	scheduled 	time
(December 	22, 	1983). 	We note 	that the general 	counsel's
investigation 	revealed 	the 	uncontested 	fact 	that 	the 	meeting
was 	rescheduled 	shortly 	thereafter, 	and 	that 	the 	grievance 	was
resolved by January 11, 	1984, 	in part 	in Dees' 	favor. 	This
fact demonstrates 	that, 	if viewed as 	an 	interference-type
violation, 	the harm 	from 	the 	delay of 	the meeting was 	de
minimus. 	If 	viewed as a 	reprisal, 	the 	facts 	are 	insufficient
to 	raise 	an 	inference 	that 	the 	delay was 	due 	to unlawful
considerations.
20

II. 	SECOND FILING: 	APPEAL OF A PARTIAL REFUSAL TO 	ISSUE
A 	COMPLAINT AND 	DISMISSAL OF UNFAIR 	PRACTICE 	CHARGE
On November 	14, 	1984, 	Dees went to hearing on 	the complaint
issued by the 	regional 	attorney. 	Dees 	made 	and was 	granted 	a
motion 	to postpone 	the hearing on 	the 	complaint 	until 	his
appeal 	of 	partial 	dismissal 	of his 	first 	amended 	charge 	was
heard 	and a 	decision 	rendered. 	In 	the meantime, 	Dees 	and 	the
University 	continued 	to 	fight 	about 	his 	job 	assignment 	and his
employment 	status. 	Dees 	did 	not 	return 	to work 	and 	refused 	to
change his 	status 	to unpaid leave. 	On May 29, 	1985, 	CSUH
informed 	Dees 	that 	he 	had been 	terminated.
In 	June 	1985, 	Dees went 	to the 	regional 	attorney with a
stack of papers, 	including 	the May 	termination 	letter. 	The
regional 	attorney 	reviewed 	the 	file 	and 	informed 	Dees 	that 	he
did 	not have 	a 	new 	charge but 	that he had 	additional 	facts 	(the
termination) 	that he 	could 	submit 	in 	the 	form of 	an 	amendment
to his 	original 	charge. 	In June 	1986, 	the 	regional attorney
issued a 	first 	amended complaint, 	adding 	the 	termination 	to 	the
transfer 	and 	other 	allegations 	of 	discriminatory 	treatment 	in
the 	original 	complaint. 	The 	regional 	attorney dismissed 	all
the 	other 	allegations 	in 	the 	second 	amended 	charge because 	they
did 	"not 	support 	a prima 	facie 	violation 	of 	HEERA, 	independent
of 	that 	contained 	in 	the pending complaint, 	or 	add 	facts 	to
further 	substantiate 	allegations 	of 	the 	pending 	complaint." u
8Letter 	of 	regional 	attorney. 	Partial 	Refusal 	to 	Issue
Complaint 	and 	Dismissal 	of 	Unfair 	Practice 	Charge. 	Tommie 	R.
Dees 	v. 	California 	State University, 	Hayward, 	Case No.
SF-CE-192-H.
21

On June 30, 	1986, 	Dees 	filed this appeal of the regional
attorney's 	partial 	refusal 	to 	issue 	a 	complaint 	and 	dismissal
of 	the 	second 	amended 	charge.
DISCUSSION
We have 	reviewed 	the partial 	refusal 	to 	issue 	a 	complaint
and 	dismissal 	of 	unfair practice 	charge 	and, 	finding 	it 	free
from prejudicial 	error, 	adopt 	it as 	the 	decision of 	the 	Board.
ORDER
I. 	PARTIAL DISMISSAL OF 	THE FIRST
AMENDED 	UNFAIR 	PRACTICE 	CHARGE
Charging 	Party's 	request 	for 	assistance 	pursuant 	to 	PERB
Regulation 	32163 	is hereby DENIED.
Consistent with 	the above discussion, 	allegations A, 	1, 	2,
3 	and 	4 are 	REMANDED 	to 	the 	general 	counsel 	with 	instructions
to 	determine 	if 	the 	limitations 	period 	was 	arguably 	tolled 	so
as 	to make 	the 	allegations 	timely.
Consistent 	with 	the 	above 	discussion, 	allegations 	B and 	C
are 	REMANDED 	to 	the 	general 	counsel 	with 	instructions 	to
determine 	if 	the 	limitations 	period 	was 	arguably 	tolled 	so 	as
to make 	the allegations 	timely and, 	if 	so, 	to determine 	if 	said
allegations 	state 	prima 	facie 	violations 	of 	HEERA.
Consistent with 	the 	above discussion, 	allegation 	7 	is
REMANDED to 	the 	general 	counsel 	with 	instructions 	to 	determine
if 	said allegation 	is 	timely and, 	if so, 	to determine 	if a
prima 	facie 	violation 	is 	stated.
22

The dismissal of allegations 8, 	10, 	11, 	12, 	13 and 14 is
AFFIRMED 	with 	prejudice.
Allegation 	9 	is 	REMANDED to the general 	counsel 	with
instructions 	to add 	it 	to 	the 	complaint pending 	in 	the 	case
herein.
II. 	PARTIAL REFUSAL TO 	ISSUE A COMPLAINT
AND 	DISMISSAL OF 	UNFAIR 	PRACTICE 	CHARGE
The 	second 	amended unfair practice 	charge 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Member 	Burt 	joined 	in 	this 	Decision. 	Member 	Porter's
concurrence and dissent begins 	on p. 	24.
23
'

Porter, 	Member, 	concurring and dissenting: 	I concur with 	the
majority opinion's 	dismissal 	of 	allegation 	8 on 	the 	ground 	that
it 	lacks 	a prima 	facie basis. 	I would additionally 	find 	this
allegation 	not 	timely 	filed.1' 	With 	respect 	to 	allegation 	10, 	I
concur 	with 	the 	majority 	in 	its 	result 	of 	affirming 	the 	general
counsel's 	dismissal. 	However, 	because 	I cannot accept 	the 	theory
of 	equitable 	tolling under HEERA, 	I 	disassociate myself 	from 	the
majority's 	discussion 	of 	that 	doctrine 	and 	would 	instead 	find
this 	allegation 	not 	timely 	filed. 	I 	concur 	in 	the majority's
dismissal 	of allegations 	11, 	12, 	13 	and 14 on 	the ground that
they 	lack a 	prima 	facie basis.
Because 	I construe HEERA section 	3563.2(a) 	as prescribing a
jurisdictional 	limitation 	on 	the 	Board's 	authority 	to 	issue 	a
complaint 	on 	events 	occurring 	outside 	the 	six-month 	period
designated 	in 	that provision, 	I 	respectfully dissent 	from 	the
majority's 	remand of allegations 	1, 	2, 	3, 	4 and 	7. 	With 	respect
to allegation 	9, 	I dissent 	from 	the majority's 	issuance of 	a
complaint 	inasmuch 	as 	this 	allegation 	is 	clearly outside 	the
jurisdictional 	time 	period 	prescribed 	in 	HEERA 	section
3563.2(a).2 For 	the 	same 	reason, 	I dissent 	from 	the majority's
1The 	underlying 	unfair 	practice 	charge 	was 	filed by 	Dees
on May 	21, 	1984. 	Therefore, 	any adverse action 	taken by the
University against 	Dees 	would have 	to have 	occurred 	on 	or 	after
November 	21, 	1983, 	or else be barred pursuant to the 	six-month
jurisdictional 	period designated 	in HEERA section 	3563.2(a).
See fn. 	5, 	infra.
2I 	also 	note 	that 	the 	majority's 	analysis 	of 	whether 	there
is 	a 	prima 	facie 	case 	appears 	to establish a basis 	of 	nexus
24

33	decision 	to 	remand 	newly 	identified 	allegations 	A, 	B 	and 	C 	to
the 	general 	counsel 	for 	exploration 	of 	the 	issue 	of 	equitable
tolling 	and, 	assuming that 	the 	charges 	are 	found 	to be 	timely
filed 	under 	an 	application of 	the 	doctrine, 	whether 	or 	not 	they
state 	a prima 	facie 	case.
I 	recognize 	that 	the 	majority opinion's 	application 	of 	the
doctrine 	of 	equitable 	tolling 	follows 	Board 	precedent. 	State 	of
California, 	Department of Water Resources 	et al. 	(1981) 	PERB
Order No. 	Ad 	122-S; 	San 	Dieguito Union High 	School 	District
(1982) 	PERB Decision No. 	194; 	Regents of the University of
California 	(1983) 	PERB Decision No. 	353-H. 	See also PERB
Regulation 	32646(a).4 However, 	inasmuch 	as 	an 	application 	of
equitable 	tolling 	is 	clearly 	inconsistent 	with 	the 	proscription
placed 	directly on 	the 	Board 	under 	all 	three 	statutes 	that 	PERB
solely on 	consideration 	of 	timing. 	However, 	timing alone 	will
not 	constitute 	a 	nexus 	under 	our precedent. 	Charter 	Oak 	Unified
School 	District 	(1984) 	PERB Decision No. 	404.
3with 	respect 	to allegation A, 	the 	majority again 	appears
to 	establish 	nexus 	solely on 	the basis 	of 	timing. 	I 	again 	note
that 	such 	a 	determination 	is 	inconsistent 	with 	Board precedent.
See fn. 	2, 	supra.
4PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 	31001 et seq.
Regulation 	32646(a) 	provides, 	in pertinent part:
If 	the 	respondent believes 	that 	issuance of
the 	complaint 	is 	inappropriate 	either
because 	the 	dispute 	is 	subject 	to 	final 	and
binding arbitration, 	or because 	the charge
is 	untimely, 	the 	respondent 	shall 	assert
such 	a 	defense 	in 	its 	answer 	and 	shall 	move
to dismiss the complaint, 	. 	. 	.
25

administers,5 I 	believe 	that 	this 	Board 	may 	not 	apply equitable
tolling 	under 	either 	the 	Educational 	Employment 	Relations 	Act
(EERA), 	the State 	Employer-Employee Relations Act 	(SEERA) 	or 	the
Higher 	Education 	Employer-Employee 	Relations Act 	(HEERA). 	The
immediate 	controversy, 	of course, 	arose only under HEERA. 	In
this 	respect, 	the majority opinion 	errs 	in applying 	the 	doctrine
of 	equitable 	tolling 	under 	HEERA 	in 	order 	to permit 	the 	issuance
of 	an 	unfair 	practice 	complaint based 	on 	an 	alleged 	practice
occurring more 	than 	six 	months 	before 	the 	filing of 	the 	charge.
The 	doctrine 	of 	equitable 	tolling was 	adopted by 	the 	Board 	in
State of California, 	Department of Water 	Resources 	et al., 	supra.
In 	Department of Water 	Resources, 	the 	Board held 	that 	it was
appropriate 	for 	the 	doctrine 	of 	equitable 	tolling 	to be 	applied
in 	those 	instances 	in which 	an 	unfair practice 	charge had been
5EERA 	section 	3541.5(a) 	and 	SEERA 	section 	3514.5(a)
provide, 	in pertinent part:
Any employee, 	employee organization or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the
board shall not 	. 	. 	. 	issue a complain	- 	t in
respect 	of 	any charge based 	upon 	an 	alleged
unfair 	practice 	occurring 	more 	than 	six
months prior to the 	filing of the charge, 	. 	.
(Emphasis 	added.)
HEERA section 	3563.2(a) 	provides:
Any employee, 	employee 	organization or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	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, 	. 	. 	. 	(Emphasis added.)
26

filed more 	than 	six 	months 	after 	the 	alleged 	violation 	of 	SEERA
and 	the 	issues 	raised by 	the 	charge 	had been pursued by 	appeal
to 	the 	State 	Personnel 	Board or 	through 	the parties' 	grievance
procedure, 	whether or not negotiated. 	In 	embracing the
doctrine, 	the 	Board 	rejected 	the 	respondent's 	argument 	that
SEERA's 	statutory provision 	requiring 	deferral 	to 	the parties'
negotiated grievance procedure, 	if existent, 	was 	the exclusive
means 	by which 	the 	"limitations 	period" 	could be 	tolled. 	To 	the
contrary, 	the 	Board asserted 	that, 	while 	SEERA section
3514.5(a)(2) 	contains 	its 	own 	internal 	tolling provision, 	the
latter 	does 	not 	preclude 	the 	Board 	from 	finding 	alternative 	and
additional 	grounds 	for 	tolling 	the 	six-month period 	designated
in 	the 	statute. 	Equitable 	tolling was 	extended 	to 	unfair
practice 	charges 	arising 	under 	the 	EERA 	in 	San 	Dieguito 	Union
High 	School 	District, 	supra, 	and to 	those under 	the HEERA 	in
Regents 	of the University of California, 	supra.
The 	doctrine of 	equitable 	tolling, 	as 	was 	first 	enunciated 	in
Department of Water 	Resources, 	supra, 	has 	since been 	distilled by
Board 	precedent 	to 	require 	that 	two 	criteria be 	met before 	the
doctrine 	is deemed appropriately applicable. 	First, 	it 	is
necessary 	that 	tolling 	in 	the 	particular 	instance 	not 	frustrate
achievement 	of 	the 	purpose 	underlying 	a 	statute 	of 	limitations,
which 	is 	to prevent 	"surprises 	through 	revival 	of 	claims 	that
have been 	lost, 	memories 	that have 	faded, 	and witnesses 	that
have 	disappeared." 	San 	Dieguito Union 	High 	School 	District,
supra, 	citing Elkins 	v. 	Derby 	(1974) 	12 Cal.3d 410. 	Second, 	the
27

responding 	party 	cannot 	be 	prejudiced by 	an 	application 	of 	the
doctrine 	of 	equitable 	tolling. 	San 	Dieguito Union 	High 	School
District, supra.
In 	San 	Dieguito Union High 	School 	District, 	the Board
misplaced 	its 	reliance 	on 	considerations 	used 	to 	justify 	tolling
a 	statute 	of 	limitations 	within 	the 	context 	of a 	tort 	cause 	of
action. 	Unlike 	the 	typical 	litigants 	in 	tort, 	parties 	in public
sector 	labor 	disputes 	are 	necessarily 	involved 	in 	an 	ongoing
relationship. 	Extending 	the 	time 	during 	which 	an 	unfair practice
charge 	can 	be 	filed 	prolongs 	the 	disruption 	and 	destabilization
of 	that 	relationship and 	thereby becomes 	antithetical 	to what 	is
perhaps 	the preeminent 	goal 	of 	the 	statutes 	that 	this 	Board
administers: 	to promote 	the 	improvement 	of harmonious
employer-employee 	relations. 	(HEERA secs. 	3560(a) 	and 	(d).)
Moreover, 	conspicuously absent 	in 	any of 	the 	Board decisions
in 	which 	the 	concept 	of 	equitable 	tolling has 	been 	considered 	is
reasoned 	analysis 	of 	the 	effect 	of 	the 	prohibitory 	language 	found
in 	EERA section 	3541.5(a), 	SEERA section 	3514.5(a) 	and HEERA
section 	3563.2(a). 	Since 	the 	immediate 	controversy is 	limited
to HEERA, 	the 	focus 	of 	the 	discussion 	will 	be 	on 	the 	language 	of
section 	3563.2(a) 	of 	that 	statute.
Section 	3563.2(a) 	of HEERA reads 	as 	follows:
Any employee, 	employee 	organization or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the
board 	shall 	not 	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. 	(Emphasis 	added.)
28

Perhaps 	the 	most 	fundamental 	rule 	of 	statutory construction
is 	for 	laws 	to be 	given 	effect 	"according 	to 	the 	usual 	ordinary
import of 	the 	language 	employed 	in 	framing 	them." 	Rich 	v. 	State
Board of Optometry 	(1965) 	235 Cal.App.2d 	591, 	604, 	hrg. 	denied.
If 	the words 	of a 	statute 	are 	clear, 	its 	language 	should 	not be
added 	to or 	altered 	in 	order 	to 	accomplish 	a purpose 	that 	does
not 	appear 	on 	the 	face 	of 	the 	statute 	or 	from 	its 	legislative
history. 	People v. 	Knowles 	(1950) 	35 Cal.2d 	175, 	182. 	Nor 	is
it appropriate, 	when 	analyzing the 	language of a 	statute, 	to
insert 	or 	add words 	to 	the 	law 	to 	reflect 	the 	existence 	of 	an
alternative 	legislative 	intent 	that 	is 	not 	expressed 	in 	the 	words
of 	the 	statute. 	Service 	Employees 	International 	Union v. 	City of
Santa Barbara 	(1981) 	125 Cal.App.3d 459, 	467, 	hrg. 	denied.
The 	language 	of 	section 	3563.2(a) 	is 	clear 	and unambiguous.
Furthermore, 	the proscription of HEERA section 	3563.2(a) 	is
directed 	to 	the 	Board and not 	to the parties. 	It 	is 	not 	a 	statute
of 	limitations 	in 	the 	traditional 	sense; 	it 	instead defines 	the
e6
parameters 	of 	this 	Board's 	jurisdiction. 	In 	so doing, 	it
6The majority, 	in 	advancing 	its 	argument 	that 	this 	Board
should 	continue 	to adhere 	to 	the principle 	of 	equitable 	tolling,
asserts 	that 	"[s]imilar 	language 	in 	the 	NLRA has 	long been
considered not 	to be 	jurisdictional." 	(Majority Opn., 	pp. 	12-13,
fn. 	6.) 	However, 	significant differences 	in language between
HEERA section 	3563.2(a) 	and 	section 	10(b) 	of 	the 	National 	Labor
Relations 	Act 	preclude 	this 	Board 	from 	deeming 	federal 	precedent
to be 	dispositive 	of 	the 	issue 	of 	equitable 	tolling under 	the
HEERA. 	(See 	29 U.S.C, 	section 	160(b).) 	Unlike HEERA section
3563.2(a), 	section 	10(b) 	of the NLRA does not place a direct
proscription 	on 	the 	NLRB's 	authority 	to 	issue 	a 	complaint based
upon 	an 	alleged 	unfair practice 	occurring 	more 	than 	six 	months
prior 	to 	the date 	at 	which 	the 	charge 	was 	filed.
29

unequivocally 	restricts 	the 	Board's 	authority 	to 	issue 	a
complaint, 	and provides 	that 	the 	Board may not do 	so when 	more
than 	six 	months 	have 	elapsed between 	the 	occurrence 	of 	the
alleged 	unfair 	practice 	and a 	charge 	filed 	in 	relation 	thereto.
Furthermore, 	it 	is 	clear 	from 	the 	language 	selected by 	the
Legislature 	that 	it 	intended 	for 	the proscription 	of 	HEERA
section 	3563.2(a) 	to operate as a 	jurisdictional 	limitation 	on
the 	Board's 	authority to act.
The 	Legislature's 	intent 	to 	impose 	a 	limit 	on 	this 	Board's
authority 	to act 	is 	evidenced 	in 	its 	choice 	of 	words 	in 	section
3563.2(a), 	" . . . 	the 	Board 	shall 	not 	issue 	a 	complaint. 	. . . "
(Emphasis 	added.) 	The 	courts 	customarily construe 	the word
"shall" 	as being mandatory, 	while 	"may" 	is 	generally 	interpreted
to 	describe 	permissive 	action 	on 	the part 	of a 	governmental
entity. 	Government 	Code 	section 	14; 	Fair v. 	Hernandez 	(1981) 	116
Cal.App.3d 868, 	878, 	hrg. denied; Hogya v. 	Superior Court, 	San
Diego County 	(1977) 	75 Cal.App.3d 122, 	133, 	hrg. denied; 	REA
Enterprises 	v. 	California 	Coastal 	Zone 	Commission 	(1975) 	52
Cal.App.3d 	596, 	606, 	hrg. 	denied. 	In light of these authorities,
it 	is 	entirely anomalous 	to argue 	that, 	while 	"shall" 	is
interpreted by 	the 	courts 	to 	impose 	upon 	a 	governmental 	entity an
affirmative duty to act, 	the words 	"shall 	not" 	may nonetheless
be 	construed 	to confer discretion 	to act. 	Nonetheless, 	this 	is
the 	result of assuming, 	as does 	the majority, 	that 	the 	theory of
30

equitable 	tolling 	is 	consistent 	with 	the 	statutory 	language 	of
HEERA section 3563.2(a).7
The 	word 	"shall" 	appearing 	in 	a 	statute has 	additionally
been 	interpreted by 	the 	courts 	as 	"mandatory" 	in 	the 	sense 	that
a 	governmental 	entity's 	failure 	to 	comply with 	a 	particular
procedural 	step will 	have 	the 	effect 	of 	invalidating 	a
governmental 	action 	to which 	the procedural 	requirement 	relates.
In 	such an 	instance, 	the procedural 	requirement 	is deemed
jurisdictional. 	Garcia 	v. 	County Board of Education 	(1981) 	123
Cal.App.3d 807, 	811-813; 	People v.
- McGee 	(1977) 	19 Cal.3d 948,
959; 	Edwards v. 	Steele 	(1979) 	25 Cal.3d 406, 	410. 	Under this
doctrine, 	time 	provisions 	will 	be 	considered mandatory and
jurisdictional 	"if 	the 	language 	contains 	negative words 	or 	shows
that 	the 	designation 	of 	time 	was 	intended 	as 	a 	limitation 	of
power, 	authority or 	right." 	Pulcifer 	v. 	County of Alameda 	(1946)
29 	Cal.2d 	258, 	262. 	See also Napa 	Savings 	Bank 	v. 	Napa 	County
(1911) 	17 Cal.App. 	545, 	548, 	hrg. denied. 	By the Legislature's
inclusion of 	the word 	"not" 	as modifying 	"shall," 	it 	clearly and
definitively 	expressed 	its 	intention 	to 	limit 	the 	power 	of 	the
7Under 	special 	circumstances, 	in order 	to 	further 	the
intent of 	the 	Legislature, 	the 	courts 	will 	depart 	from 	their
customary 	rule 	of 	interpreting 	"shall" 	as 	obligatory 	and will
instead 	construe 	it 	to denote permissive 	action 	only. 	See,
e.g., 	People 	v. 	Superior 	Court 	for 	Santa 	Clara 	County 	(1970)
3 Cal.App.3d 476, 	disapproved on other grounds, 	37 	Cal.3d 	318.
There 	appears 	to be 	no authority 	for 	the proposition, 	however,
that 	"shall 	not" 	can be 	interpreted 	to denote 	discretionary
action. 	Therefore, 	while 	in 	some unique 	instances 	"shall" 	may
mean 	"may," 	there 	is 	no 	authority 	illustrating 	the 	principle 	of
"shall 	not" 	meaning 	"may." 	Shall 	not means 	shall 	not.
31

Board 	to 	issue 	a 	complaint 	under 	certain 	specified 	conditions,
namely when 	a 	period 	greater 	than 	six 	months 	has 	elapsed between
the 	occurrence 	of 	the 	alleged 	unfair 	practice 	and 	the 	party's
filing of 	a 	charge.
The 	majority 	theorizes 	that 	PERB 	derives 	its 	power 	to apply
equitable 	tolling 	from 	its 	status 	as 	a 	"constitutional 	agency
empowered by the 	Legislature 	to exercise 	judicial 	functions 	to
effectuate 	the 	purposes 	of 	the 	statutes 	entrusted 	to 	it," 	and
cites 	Perry Farms, 	Inc. 	v. 	Agricultural 	Labor Relations 	Board
(1978) 	86 	Cal.App.3d 448 	for 	this 	proposition. 	(Majority Opn.,
p. 	12, 	fn. 	6 ) . 	In Perry Farms, 	the court held that, 	under
Article 	XIV, 	section 	1 	of 	the 	California 	Constitution,8 the
Legislature 	statutorily 	vested 	the 	ALRB 	with 	the 	judicial 	function
of 	adjudicating 	and 	deciding 	unfair 	labor 	practice 	cases.
There 	are 	two 	inherent problems 	in 	connection 	with 	the
majority opinion's 	theory. 	First of all, 	to date, 	there exists
no precedent 	in which 	it has been 	found 	that PERB, 	like 	the ALRB,
derives 	its 	adjudicatory power 	from 	the 	Constitution. 	In 	fact,
in 	Pacific Legal 	Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	197,
fn. 	19, 	decided subsequent to Perry Farms, 	supra, 	the California
Supreme 	Court 	expressly 	opted 	to 	leave 	for 	future 	determination
8Article 	XIV, 	section 	1, 	reads as 	follows:
The 	Legislature 	may provide 	for 	minimum
wages 	and 	for 	the 	general 	welfare 	of
employees 	and 	for 	those 	purposes 	may 	confer
on a 	commission 	legislative, 	executive and
judicial 	powers.
32

the 	issue 	of 	whether 	PERB's 	adjudicatory power 	was 	of 	legislative
or 	constitutional 	origin.
Moreover, 	the 	majority opinion's 	theory derives 	from 	a
misinterpretation 	of 	Perry 	Farms. 	That 	decision 	did 	not hold
that, 	by 	its 	vesting 	of 	the ALRB with 	adjudicatory power 	to
decide 	unfair 	labor 	practice 	cases, 	the 	Legislature 	concurrently
vested 	within 	that 	agency 	the 	sum 	total 	of 	judicial 	power. 	The
California 	Constitution 	vests 	equity 	power 	and 	jurisdiction
exclusively 	in 	the 	Superior 	and appellate 	courts. 	California
Constitution, 	Article VI, 	section 10.
Similarly, 	while 	HEERA authorizes 	PERB 	to 	adjudicate 	unfair
practice 	cases, 	such 	limited adjudicatory power 	is 	not 	tantamount
to 	judicial 	power 	in 	its 	entirety. 	For 	example, 	while HEERA
authorizes 	PERB 	to 	seek 	or petition 	the 	Superior 	Court 	for
injunctive 	relief 	in 	certain 	unfair 	practice 	cases 	(HEERA section
3563(i)), 	PERB has 	no general 	equity power whereby it may 	itself
grant 	injunctive 	relief. 	Thus, 	while both 	the ALRB and 	PERB are
vested 	with 	limited 	adjudicatory 	power 	to 	decide 	unfair 	practice
cases, 	neither 	agency is 	vested, 	either 	constitutionally or
statutorily, 	with broad 	judicial 	equitable 	power 	which 	could
properly 	embrace 	the 	doctrine 	of 	equitable 	tolling.
Nor 	can 	the 	doctrine 	of 	equitable 	tolling 	be 	justified 	as
constituting a 	proper 	invocation 	of 	PERB's 	implied 	powers.
Although 	administrative 	agencies 	may 	possess 	those 	powers
intrinsically 	related 	to 	the 	achievement 	of 	their 	statutory
mandates, 	such powers 	cannot be 	invoked where 	they are
33

incompatible 	with 	those 	expressly granted. 	Blatz 	Brewing 	Co. 	v.
Collins 	(1945) 	69 Cal.App.2d 639, 	645, 	hrg. 	denied; 	2 Cal.Jur.3d,
p. 	257. 	One may even 	more 	compelling 	argue 	that 	an
administrative 	agency's 	implied power 	cannot be 	invoked 	where 	to
do 	so 	is 	not 	merely 	incompatible 	with 	that 	expressly granted but
with 	that expressly prohibited. 	See 	62 	Ops.Cal.Atty.Gen. 	356
(1959); 	34 Ops.Cal.Atty.Gen. 	322 	(1959).
As 	a 	general 	proposition, 	any application 	of 	equitable
tolling 	is 	wholly 	inconsistent 	with 	HEERA's 	prohibitory 	language
and, 	therefore, 	the 	Board may not apply 	the principle 	in 	order 	to
extend 	its 	jurisdiction 	beyond 	that 	granted by 	the 	Legislature.
Moreover, 	while 	in 	the 	instant 	case 	the 	majority opinion 	labels
its 	theory 	"equitable 	tolling" 	as 	opposed 	to 	"statutory 	tolling"
by 	its 	reliance 	on 	Dees' 	utilization of 	the parties' 	contractual
grievance 	procedure, 	the majority's 	analysis parallels 	that
inquiry 	properly made 	in 	applying 	principles 	of 	statutory 	tolling
under 	EERA and 	SEERA.9 This, 	in 	turn, 	violates 	the 	intent of
the 	Legislature 	to 	omit 	statutory 	tolling 	from 	HEERA.
Within 	a 	context 	analogous 	to 	that of 	the 	instant case, 	in
Regents 	of 	University of 	California 	v. 	Public 	Employment 	Relations 
1
9Both 	EERA 	section 	3541.5(a) 	and 	SEERA 	section 	3514.5(a)
contain 	the 	following 	language 	providing 	for 	statutory 	tolling:
. 	. 	. 	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 	machinery.
34

Board 	(1985) 	168 Cal.App.3d 	93 7, 	an 	attempt by PERB 	to 	imply 	from
the 	language 	of 	HEERA a 	nonexclusive 	representative's 	right 	of
representation 	was 	struck 	down. 	The 	court 	reasoned 	that 	approving
PERB's 	interpretation 	would be 	tantamount 	to 	authorizing 	the
Board 	to 	rewrite 	HEERA to 	suit 	its 	notion 	of what 	the 	Legislature
must have 	intended 	to mean, 	despite 	the 	fact 	that 	its 	assumed
intent was 	not 	expressed 	in 	the 	language 	of 	the 	statute. 	In
rejecting 	the 	Board's 	interpretation, 	the 	court 	found 	strong
evidence 	of 	contrary 	legislative 	intent, 	the most 	important 	of
which 	was 	the 	Legislature's 	use 	of 	the 	same 	construction 	in 	four
other 	statutes 	and 	its 	failure 	to 	use 	that 	construction 	under 	the
HEERA. 	Id., 	at pp. 	344-345. 	The message of the court 	in
Regents 	of 	University of 	California 	was 	clearly 	expressed:
"HEERA 	is 	significant 	not 	so much 	for 	what 	it provides 	as 	for
what was omitted." 	Id., 	at p. 	944.
Similarly, 	EERA 	section 	3541.5(a) 	and 	SEERA section 	3514.5(a)
provide 	for 	statutory tolling; 	however, 	such a 	provision 	under
the HEERA 	is 	conspicuously absent. 	Yet, 	the majority 	ignores
this 	omission 	and, 	on 	these 	facts, 	effectively 	rewrites 	HEERA
section 	3563.2(a) 	to provide 	for 	statutory tolling. 	As 	a
consequence 	of 	its 	interpretation, 	the 	majority opinion 	violates
the 	intent 	of 	the 	Legislature 	to omit 	statutory 	tolling 	from 	the
HEERA. 	Moreover, 	the majority also 	sanctions 	an 	interpretation
of 	HEERA premised 	on 	the 	Board's 	action 	in 	excess 	of 	its
authority 	in a 	manner 	found 	repugnant by 	the 	court 	in 	Regents 	of
University 	of 	California.
35

As 	an 	administrative 	agency of 	limited 	jurisdiction, 	PERB
possesses 	only 	those 	powers 	expressly 	conferred 	on 	it 	by 	statute
or 	those 	that 	can 	fairly be 	implied. 	City 	and 	County of 	San
Francisco v. 	Padilla 	(1972) 	23 Cal.App.3d 388, 	400, 	hrg. 	denied;
Rich Vision Centers, 	Inc. 	v. 	Board of Medical 	Examiners 	(1983)
144 Cal.App.3d 110, 	114, 	hrg. 	denied.10	10 	If an administrative
agency acts 	in 	excess 	of 	its 	authority or 	in violation 	of powers
conferred 	upon 	it, 	its 	actions 	are 	void. 	City and County of 	San
Francisco, 	supra, 	p. 	400; 	Ferdig v. 	State Personnel Board 	(1969)
71 	Cal.2d 96, 	104; 	2 Cal.Jur.3d, 	at p. 	252. 	The doctrine of
equitable 	tolling 	does 	not 	derive 	from 	either 	an 	express 	or
implied 	power 	conferred 	on 	this 	Board 	under 	the 	HEERA. 	On 	the
contrary, 	its 	application 	contravenes 	an 	express 	prohibition of
HEERA. 	Consequently, 	in 	continuing 	to apply equitable 	tolling,
the 	Board 	is 	proceeding outside 	its 	jurisdiction 	and, 	for 	this
reason, 	I respectfully dissent 	from those portions 	of 	the
majority opinion 	that 	rely on 	equitable 	tolling 	to 	vest 	this
Board 	with 	jurisdiction 	to perform 	an 	act 	specifically
proscribed by 	statute.
Finally, 	I 	join 	the majority 	in 	affirming the 	regional
attorney's 	partial 	refusal 	to 	issue 	a 	complaint 	and 	dismissal 	of
the 	second 	amended 	unfair 	practice 	charge.
10Similarly, 	administrative 	rules 	and 	regulations 	may 	not
exceed 	the 	scope 	of 	authority granted 	the 	agency 	in 	the 	relevant
enabling 	legislation. 	Selby v. 	Department 	of Motor Vehicles
(1980) 	110 Cal.App.3d 470, 	474-475; Morris v. Williams Health
and Welfare Agency 	(1967) 	67 Cal.2d 	733, 	737.
36