El Dorado Union High School District * * * OVERRULED IN PART by County of San Diego (2020) PERB Decision No. 2721-M (PERB 0382E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EL 	DORADO UNION 	HIGH 	SCHOOL 	FACULTY
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.	v.
EL DORADO UNION HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-233
PERB Decision No. 	382
April 23, 	1984
Appearances; 	Kirsten L. 	Zerger, 	Attorney, 	for the El Dorado
Union High School Faculty Association, 	CTA/NEA; 	Lee T.
Paterson, 	Attorney 	(Paterson & Taggart) 	for 	the El Dorado Union
High 	School 	District.
Before Hesse, 	Chairperson; 	Tovar and Jaeger, Members.
DECISION
JAEGER, 	Member: 	The El Dorado Union High School 	District
(District) 	excepts 	to the hearing officer's 	finding 	that 	the
District violated EERA subsections 	3543.5(a) 	and 	(c). 	In
reaching 	that decision, 	the hearing 	officer 	found 	that 	the
unfair 	practice 	charge 	filed by 	the 	El 	Dorado Union 	High 	School
Faculty Association 	(Association) 	was 	not barred by 	the 	statute
of 	limitations 	as 	set 	forth 	in EERA subsection 	3541.5(a)(1).1
1Subsection 	3541.5(a)(l) 	provides, 	in pertinent part!
(a) 	. 	. 	. the board shall not 	. 	. 	.
(1) 	issue a complaint 	in 	respect of any
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* * * OVERRULED IN PART by County of San Diego (2020)
PERB Decision No. 2721-M * * *

charge based 	upon 	an 	alleged 	unfair
practice 	occurring more 	than 	six months
prior to the filing of the charge; 	. 	. 	.
Although 	the 	charge 	was 	filed 	after 	the 	six month period had
run, 	the hearing 	officer 	concluded 	that 	the District's 	alleged
unilateral 	action 	constituted 	a 	continuing violation which
extended 	the 	limitations 	period, 	thereby making 	the 	charge
timely 	filed.
For 	the 	reasons 	discussed below, 	we 	reverse 	the hearing
officer's 	finding 	that 	the Association's 	charge 	was 	timely
filed 	and, 	on that 	basis, 	dismiss 	the 	charge.2
FACTS
1. 	During March 1978, 	the District adopted a new policy
without 	consulting the Association, 	requiring all 	new teachers
hired by 	the 	District 	to 	sign 	an 	addendum 	to 	their 	teaching
contracts 	in which 	they would agree 	to 	coach at 	least 	two
school 	sports 	teams 	during 	the 	school 	year.
2. 	On September 	5, 	1978, 	the District school board met and
approved the hiring of 	several 	new employees, 	with the
"previously agreed 	to 	statement 	on 	coaching" 	to be added 	to 	the
contracts of 	two of 	the 	new 	teachers. 	The president 	of 	the
Association was 	present 	at 	the meeting. 	He 	testified 	that he
2since we dismiss 	the 	charge on 	statute 	of 	limitations
grounds, 	we need not 	reach the substantive 	issues 	underlying
the Association's allegations.
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had 	no 	recollection 	of 	the 	addenda being 	specifically addressed
by 	the 	Board.
3. 	Some time during the 	first 	two weeks of October 	1978,
some 	members 	of 	the Association board 	of 	directors 	learned 	of
the 	District's 	new 	policy.
4. 	On October 	16, 	1978, 	the Association board of directors
met 	and 	discussed 	the 	addenda.
5. 	On October 	23, 	1978, 	Roy Fulmer, 	the Association's past
president 	and 	a member 	of 	the Association board 	of 	directors,
along with another board member, 	met 	with District
Superintendent 	Herbert 	Hemington 	and Assistant 	Superintendent
Arthur Cate. 	At the meeting, 	the two Association
representatives 	asked 	that 	the 	addenda be 	removed 	from the
contracts 	and 	destroyed. 	The District 	representatives 	stated
their belief 	that 	the 	addenda 	were 	legal 	and were 	not 	a
violation of 	the 	collective bargaining agreement.
6. 	On April 	17, 	1979, 	the Association 	filed an unfair
practice charge against 	the District, 	alleging that 	the addenda
constituted a violation of EERA subsections 3543.5(a), 	(b), 	and
(d), 	section 3543, and subsection 3543.l(a).
The District 	filed 	an 	answer 	and motion to dismiss,
contending 	that 	the 	charge was 	barred by 	the 	statute 	of
limitations.
DISCUSSION
We 	find 	that 	this 	case 	is 	governed by San Dieguito Union
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High School District 	(2/25/82) 	PERB Decision No. 	194.3 	In
San Dieguito, 	supra, 	the employer unilaterally changed 	its
teacher 	sign-out 	policy 	contrary to 	the provisions 	of 	a
collective bargaining 	agreement. 	The Association 	filed 	its
charge 	more 	than 	six months 	after 	the 	new policy was
implemented, 	but 	claimed that 	the District's 	enforcement 	of 	the
policy during 	the 	limitations 	period 	constituted 	a 	"continuing
violation." 	The Board, 	following federal precedent,
disagreed. 	See, 	e.g. 	Local Lodge 	1424 v. 	NLRB 	(1960) 	263 U.S.
411, 	4 L.Ed2d 832 [45 LRRM 3213]; 	Continental Oil Co. 	(1971)
194 NLRB 126 [78 LRRM 1626]; 	Schorr Stern Food Corp. 	(1977) 	227
NLRB 245 	[94 LRRM 1331]; 	Cone Mills Corp. 	v. NLRB 	(4th Cir.
1979) 	413 	F.2d 	445 	[71 	LRRM 	2916].
Thus, 	the 	Board 	determined 	that 	a 	continuing 	violation
would only be 	found 	where 	active 	conduct 	or 	grievances 	occurred
within 	the 	limitations 	period 	that 	independently 	constituted 	an
unfair practice. 	Local Lodge 1424 v. 	NLRB, 	supra. 	However, 	a
continuing 	violation would 	not be 	found 	where 	the 	employer's
conduct 	during 	the 	limitations 	period 	constituted 	an 	unfair
practice 	only by 	its 	relation 	to the 	original 	offense. 	UAW v.
NLRB 	(D.C. 	Cir. 	1966) 	363 F.2d 702 	[62 LRRM 2361], 	Where the
-
underlying 	theory of 	the 	charge 	is 	an 	alleged 	unilateral 	change
occurring outside 	the 	limitations 	period, 	the 	employer 	must
3San 	Dieguito, 	supra, 	was 	issued 	subsequent to the
hearing 	officer's 	proposed 	decision 	in 	this 	case.
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engage 	in 	conduct 	during 	the 	limitations 	period 	"such 	as
reimplementation or subsequent refusals to negotiate 	. 	. 	.
[which] 	revive[s] the viability of the unfair practice."
San Dieguito, 	supra at p. 	7.
The 	situation 	in the 	instant 	case 	closely resembles 	that 	of
San Dieguito. 	In March and September 	1978, 	the District
adopted 	and 	implemented 	the 	new 	teaching 	assignment 	policy.
The Association here had 	actual 	notice 	of 	the District's 	action
prior to October 	16, 	1978, 	when the 	limitations period began to
run, 	and did not 	file 	its charge until April 17, 	1979, 	more
than six months 	later. 	The District's sole violation, 	if 	any,
occurred when 	it 	implemented the 	new policy, 	and the
limitations 	period began 	to 	run when 	the Association had notice
thereof. 	Requiring new 	teachers 	to 	sign the 	addenda during 	the
limitations 	period 	does 	not 	satisfy 	the 	requirement 	in San
Dieguito 	that 	the 	employer's 	subsequent 	conduct 	constitute 	a
"reimplementation" 	of 	the allegedly unlawful policy.
The Association did, 	however, 	meet 	with the District 	on
October 	23, 	1978, 	during the limitations period, 	to discuss the
addenda. 	At 	the meeting, 	the Association 	representatives
contended 	that 	the 	addenda were 	a 	violation of 	the 	contract 	and
asked 	that 	they be 	destroyed. 	The 	District 	representatives
responded that 	in their opinion the addenda were 	legal, 	and
would 	not be 	removed. 	This 	meeting 	was 	nothing more 	than a
protest 	against 	the 	District's alleged 	unilateral 	change
Ln
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followed by 	a 	District 	response 	that 	its 	conduct 	was 	lawful.
This 	meeting cannot, 	therefore, 	be considered 	an 	independent
refusal 	to 	negotiate 	within the meaning 	of 	San Dieguito, 	supra
----·.
Since 	the 	District 	did not 	either 	reimplement 	the 	allegedly
unlawful 	policy or 	independently 	refuse 	to 	negotiate 	about 	it
during 	the 	limitations 	period, 	we 	conclude 	that 	the
Association's 	charge 	is 	time barred.
ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	the 	charges 	filed by the El 	Dorado Union High 	School
Faculty 	Association 	against 	the 	El 	Dorado Union High 	School
District 	in Case No. 	S-CE-233 	are hereby DISMISSED.
Chairperson Hesse 	and Member 	Tovar 	joined 	in 	this 	Decision.
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