State of California, Department of Water Resources (State Employees Trades Council)/State of California, Department of Developmental Services (Matta) (PERB A122S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE EMPLOYEES' TRADE COUNCIL,
Charging Party,
v.
STATE OF CALIFORNIA, DEPARTMENT
OF WATER RESOURCES,
Respondent,
APPELLANT.
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RICHARD C. MATTA,
Charging Party,
v.
STATE OF CALIFORNIA, DEPARTMENT
OF DEVELOPMENTAL SERVICES,
Respondent,
APPELLANT.
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Case No. LA-CE-16-S
PERB Order No. Ad-122-S
Administrative Appeal
(Interlocutory)
December 29, 1981
Case No. SF-CE-20-S
Appearances: Barbara T. Stuart, Attorney for the Governor's
Office of Employee Relations; R. s. Mintz, Attorney for the
State Employees Trades Council and Robert J. Peernock;
John D. Fouts, Attorney for Richard C. Matta.
Before Gluck, Chairperson; Jaeger and Moore, Members.
DECISION
These matters are before the Public Employment Relations
Board (hereafter PERB or Board) upon the state's filing of
objections to hearing officers' denials of motions to dismiss

the
	complaints
	in 	the
	respective 	cases.
	The
	State
	contends
that
	PERB
	is
	without
	jurisdiction
	to
	hear
	these
	cases,
	claiming
that
	the
	statute
	of
	limitations
	had
	run
	prior
	to 	the
	filing
	of
the 	unfair
	practice
	charges
	by
	the 	charging
	parties.l
Pursuant
	to
	section
	32200
	of
	PERB's
	rules
	and
	regulations,2
the
	State
	has
	presented 	five 	issues 	for
	consideration:
lstate
	Employer-Employee
	Relations
	Act
	(hereafter
	SEERA
or
	Act)
	is
	codified
	at
	Government 	Code
	section
	3512,
	et
	seq.
3514.S(a)
	states.
	in
	part:
(a)
	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 	theagreement,
	if
	it
	exists
	and
	covers 	the
matter
	at
	issue,
	has 	been
	exhausted,
	either
by
	settlement
	or 	binding
	arbitration
	•...
The
	board
	shall,
	in 	determining
	whether
	the
charge
	was
	timely
	filed,
	consider 	thesix-month
	limitation 	set 	forth
	in
	this
subdivision 	to
	have 	been
	tolled
	during 	thetime
	it
	took
	the 	charging
	party
	to 	exhaust
the 	grievance 	machinery.
2PERB
	rules
	and
	regulations 	are 	codified 	at 	CaliforniaAdministrative
	Code,
	title
	8, 	section
	31000
	et
	seq.
Rule 	32200
	provides:
Objection 	to 	Ruling
	on 	Motionso 	A
party
	may
object 	to 	the 	ruling
	on 	a 	motion 	by
	the 	Board
agent
	and
	request
	a
	ruling 	by 	the
	Board
2

1. 	Does 	an 	appeal 	to 	the 	State 	Personnel Board 	(hereafter
SPB) 	toll 	SEERA's 	statute 	of 	limitations?
2. 	Does 	a 	grievance 	filed 	pursuant 	to 	a 	nonnegotiated
grievance 	procedure 	toll 	the 	statute?
3. 	If 	the 	employee's 	conduct 	occurred 	before 	the
effective 	date 	of 	SEERA, 	but 	the 	State's 	disciplinary 	action
occurred 	after 	the 	effective 	date, 	can 	that 	disciplinary 	action
be 	found 	unlawful?
4. 	Must 	a 	charging 	party 	rely 	solely 	upon 	evidence
occurring 	within 	the 	six-month 	period 	immediately 	preceding 	the
filing 	of 	the 	charge 	to 	establish 	a 	prima 	facie 	case?
5. 	Does 	the 	State 	have 	the 	right 	to 	plead 	its 	defenses
regarding 	the 	statute 	of 	limitations 	before 	the 	charging
parties 	proceed 	with 	their 	cases?
itself. 	The 	request 	shall 	be 	made 	in
writing 	to 	the 	Board 	agent 	and 	a 	copy 	shall
be 	sent 	to 	the 	Board 	itself~ 	The 	Board
agent 	may 	refuse 	the 	request 	or 	join 	in 	the
request 	and 	thereby 	certify 	the 	matter 	to
the 	Board 	itself. 	The 	Board 	agent 	may 	join
in 	the 	request 	only 	where 	all 	of 	the
following 	apply:
{a) 	The 	issue 	involved 	is
one 	of 	law1
(b) 	The 	issue 	involved 	is
controlling 	in 	the 	case; 	and
(c) 	An 	immediate 	appeal 	will
materially 	advance 	the
resolution 	of 	the 	case.
3

Only
	the
	first
	two
	issues,
	however,
	were
	certified
	to 	the
Board.
	Rule
	323803	
precludes
	appeals
	of
	interlocutory
rulings
	unless
	certified
	by
	the 	hearing
	officer.
	Accordingly,
we
	will
	restrict
	our
	discussion
	to
	the
	tolling
	issues
	which
have
	been
	certified.
3Rule
	32380
	provides:
Limitation 	of
	Appeals.
	The
	following
administrative 	decisions
	shall
	not
	be
appeal
able:
(a) 	A
decision
	by 	a
	Regional
Director
	regarding 	the
	mechanics
of
	an
	election
	as 	long
	as 	the
decision
	does
	not
	affect
	standing
of
	a
	party 	to
	appear
	on 	a
	ballot;
(b) 	Any
	of 	the 	following
interlocutory 	rulings
	which
	may 	be
raised
	when
	the 	case 	as
	a 	whole
	is
appealed
	to 	the
	Board
	itself~
(1) 	A
ruling
	made 	by
the 	Chief Administrative
Law
	Judge 	or
	a
	Board
agent 	while 	processing
an
	unfair
	practice
	case;
(2) 	A
	ruling
	made 	by 	a
Board
	agent 	during
	a
hearing 	except
·when
	the
Board
	agent
	joins 	in 	the
request 	to 	appeal
pursuant 	to Section
32200;
(3) 	A
	ruling 	regarding
the 	assignment 	or
substitution 	of
	Board
agents 	conducting
	a
hearing.
4

FACTS
In State
	Employees'
	Trade 	Council
	v.
	State
	of
	California,
Department
	of
	Water
	Resources,
	LA-CE-16-S,
	Charging
	Party,
Robert 	Peernock,
	was
	discharged
	from
	State 	service
	on 	December
27,
	1979.
	He
	initially
	challenged
	the
	dismissal
	by
	timely
filing
	an
	appeal
	with 	the
	SPB.
	However,
	prior
	to 	the
commencement
	of 	the
	SPB
	hearings,
	which
	began
	in
	July
	1980,
Mr.
	Peernock
	filed
	charges
	with
	PERB
	on
	June 	5,
	1980.
	In
	his
charges
	he
	alleges 	that
	he 	was
	dismissed
	because
	of
	his 	role
	as
a
	steward
	for
	the
	State
	Employees
	Trade 	Council
	and 	a
	leader
	in
a
	June
	1979 	work
	action 	against
	the
	State.
	He
	further 	alleges
that
	the
	State 	carried
	on 	a
	systematic
	two-year
	program
	of
harassment
	against
	him
	for 	these
	activities
	and
	that
	he 	had.
filed
	numerous
	grievances
	through
	the
	Department
	of
	Water
Resources' 	grievance 	procedure.
	He
	contends
	that
	many
	of 	these
grievances
	were
	not
	resolved
	by
	the 	June
	5
	filing
	date.
In
	Richard
	C.
	Matta 	v.
	State
	of
	California,
	Department
	of
Developmental
	Services,
	SF-CE-20-S,
	the
	Charging
	Party,
	Richard
C.
	Matta,
	was
	discharged
	by
	the
	Department
	of
	Developmental
Services 	in February
	1980
	allegedly 	for 	mistreatment 	of
	a
patient.
	He
	appealed 	to
	SPB 	and 	a
	hearing
	was
	held 	in
May 	1980.
	Its
	decision
	was
	issued 	in
	September 	1980. 	Four
months
	later,
	Mr.
	Matta
	filed 	his 	charge 	with
	PERB
	alleging
that
	he 	was
	dismissed 	because 	of 	his
	activities
	as 	a
	union
steward.
5

In
	both 	the
	Matta
	and
	Peernock
	matters,
	the
	State
	moved
	for
dismissal
	of
	all
	charges,
	contending
	that
	they
	were
	filed
untimely
	pursuant 	to
	section
	3514.S{a),
	supra.
	However,
	the
hearing
	officers
	found
	that
	the
	statute
	of
	limitations
	was
tolled
	pending
	the
	outcome
	of
	the
	respective
	SPB
	hearings.
	The
State
	appeals
	from
	these
	rulings.
DISCUSSION
The
	fundamental 	purpose
	of
	a
	statute
	of
	limitations 	is
	to
promote
	justice
	by
	preventing
	surprise
	and
	prejudice 	to
	a
	party
from 	having
	to
	defend
	against
	stale
	claims
	which
	"have 	been
allowed
	to
	slumber
	until
	evidence 	has 	been
	lost,
	memories 	have
faded,
	and
	witnesses
	have
	disappeared."
	Order
	of
	Railroad
Telegraphers
	v.
	Railway
	Express
	Agency 	{1944) 	321
	U.S.
	342 	[14
LRRM
	506].
	A
statute
	of
	limitations
	helps 	to 	assure
	that
	the
defendant 	receives 	timely
	notice,
	which
	enables 	him/her
	to
assemble
	a
	defense 	while 	the
	facts
	are
	still
	fresh. 	Elkins
	v.
Derby 	{1974) 	12
	Cal.3d 	410.
The
	Doctrine 	of Equitable 	Tolling:
Section
	3514.S(a) 	places
	two
	limitations
	on PERB's
authority
	to 	issue 	complaints 	in 	unfair 	practice 	cases:
	(1)'
where
	the 	alleged
	unlawful
	practice
	occurred
	more
	than
	six
months
	prior 	to 	the
	filing 	of 	charges,
	and 	(2) 	where
	the
dispute 	is 	subject 	to 	resolution
	through 	a
	negotiated 	grievance
procedure 	culminating 	in
	a
	settlement 	between.the
	parties
	or 	in
binding 	arbitration.
6

The
	State
	contends
	that
	the
	second
	of 	these
	provisions
	is
the 	exclusive
	exception 	to 	the
	six-month
	statute
	of
	limitations
and
	that
	PERB
	may
	toll
	the
	limitations'
	period
	only
	where
	there
has
	been
	recourse 	to
	a
	negotiated 	grievance 	procedure. 	This
interpretation
	of 	the
	statute
	is 	incorrect.
	Subsection
3514{a)
(2)
	contains
	its
	own
	internal 	tolling
	provision,
granting
	to
	PERB
	the
	discretion
	to
	issue
	a
	complaint
	where
	it
determines
	that
	the
	settlement
	or
	arbitration
	award
	is
repugnant 	to 	the
	purpose
	of 	the Act. 	This
	exception 	to
	the
limitation
	on PERB's
	authority
	to
	issue
	complaints
	does
	not
preclude 	the
	Board
	from
	finding 	other
	grounds
	for
	tolling
	the
six-month
	statute
	of
	limitations'
	period.
Apropos
	to 	the 	issues 	raised 	here,
	California 	courts
	have
held
	that,
	under
	certain
	circumstances,
	time
	limitations
	may 	be
tolled
	in 	equity
	where
	plaintiffs
	have
	satisfied
	the
notification
	purpose
	of 	the
	statute.
	Elkins
	v.
	Derby,
	supra,
p.
	418.4	
Furthermore,
	equitable
	tolling 	principles
	are
applicable 	regardless 	of
	whether 	the 	exhaustion 	of
	one 	remedy
is
	a
	prerequisite
	to 	the
	pursuit 	of 	another.
	The 	key
	issue 	is
whether 	the 	defendant
	would 	be
	surprised
	and
	prejudiced
	by
	the
4concepts 	of 	equity 	require 	that 	statutes
	of
	limitations
should 	not
	be
	turned 	into 	stone 	walls 	that 	defeat 	reasonable
efforts
	of
	a
	charging 	party 	to 	seek
	redress.
	See
	Mor 	an 	v.Washington Manufacturing
	Co.
	(6th 	Cir.
	October 	7, 	198
1)
Fe2d
___
	(Dock 	No.
	79-1435). 	Further, 	they 	should 	not
	be
applied 	inflexibly
	and
	mechanically 	to 	administrative
hearings. 	Id.
7

tolling.
	Elkins,
	supra,
	at
	p.
	414~ 	Myers
	v.
	County
	of
	Orange
(1970) 	6
	Cal.App.3d
	626.
In Elkins,
	the
	plaintiff
	filed
	an
	action 	in
	tort
	for
personal 	injury
	although 	the
	applicable
	statute
	of
	limitations
had
	already
	run
	its
	course.
	Previously,
	he 	had
	pursued
	an
industrial
	accident
	claim
	based
	on
	the
	same
	injury 	before 	the
State
	Workers' 	Compensation
	Appeals Board. 	Defendent
	asserted
the
	statute
	of
	limitations,
	contending
	that
	the
	doctrine
	of
equitable
	tolling
	should 	not
	apply,
	since
	the 	matter 	of
6
fault",
	an
	element
	of 	the
	tort
	action
	not
	in 	issue
	in
	the
compensation
	case,
	would
	require
	him
	to 	secure
	new
	evidence,
	a
consequence 	the
	limitation
	was
	designed 	to
	prevent.
	The
	court
rejected 	this
	contention
	and 	found
	that
	the
	doctrine
	was
applicable
	"[w]hen
	an
	injured
	person
	has
	several 	legal
	remedies
and, 	reasonably
	and
	in
	good
	faith
	pursues 	one".
	Elkins, 	supra,
p.
	414.
	The
	Court
	found
	that
	the
	possibility
	of
	surprise
	and
prejudice
	here
	was
	insignificant.
	The
	employer
	had
	been
	placed
on
	sufficient
	notice
	by
	the 	timely
	filing
	of 	the
	first
	cause 	of
action
	before 	the
	Workers' 	Compensation Appeals Board
	to
	permit
him
	to 	gather
	and
	preserve 	evidence
	which 	would
	also
	be
relevant 	in 	the 	second
	civil
	cause 	of 	action 	in
	tort.
	The
	fact
that
	the 	compensation
	action 	did 	not 	deal 	with 	the
	fault 	issue
would 	impose
	only
	a 	minimal 	burden 	on
	the
	employer
	who
	could
	be
expected 	to 	identify
	and
	locate 	persons 	with 	knowledge
	of 	the
events 	or 	circumstances 	surrounding 	the 	injury.
	See
	also
Meyers, 	supra, 	p. 	634.
8

The 	Board 	finds 	ample 	grounds 	for 	adopting 	the 	doctrine 	of
equitable 	tolling 	here. 	It 	is 	beyond 	dispute 	that 	the 	central
thrust 	of SEERA 	is 	to 	encourage 	the 	resolution 	of
employer-employee 	disputes 	through 	internal 	processes 	such 	as
negotiations 	and 	grievance 	procedures. 	Section 	3512 	expresses
the 	Act's 	purposes 	as 	the 	promotion 	of 	full 	communication
between 	the 	State 	and 	its 	employees 	and 	the 	improvement 	of
personnel 	management 	and 	employer-employee 	relations 	by 	such
communications.5 	The 	Board 	has 	recognized 	such 	legislative
Ssection 	3512 	states:
It 	is 	the 	purpose 	of 	this 	chapter 	to 	promote
full 	communication 	between 	the 	state 	and 	its
employees 	by 	providing 	a 	reasonable 	method
of 	resolving 	disputes 	regarding 	wages,
hours, 	and 	other 	terms 	and 	conditions 	of
employment 	between 	the 	state 	and 	public
employee 	organizations. 	It 	is 	also 	the
purpose 	of 	this 	chapter 	to 	promote 	the
improvement 	of 	personnel 	management 	and
employee-employer 	relations 	within 	the 	State
of 	California 	by 	providing 	a 	uniform 	basis
for 	recognizing 	the 	right 	of 	state 	employees
to 	join 	organizations 	of 	their 	own 	choosing
and 	be 	represented 	by 	such 	organizations 	in
their 	employment 	relations 	with 	the 	state.
Nothing 	in 	this 	chapter 	shall 	be 	construed
to 	contravene 	the 	spirit 	or 	intent 	of 	the
merit 	principle 	in 	state 	employment, 	nor 	to
limit 	the 	entitlements 	of 	state 	civil
service 	employees, 	including 	those
designated 	as 	managerial 	and 	confidential,
provided 	by Article VII 	of 	the 	California
Constitution 	or 	by 	laws 	or 	rules 	enacted
pursuant 	thereto.
9

intent
	in 	cases
	arising
	under
	the 	Educational
	Employment
Relations
	Act
	(hereafter
	EERA),6 	whose
	relevant 	provisions
are
	virtually
	identical
	to 	those
	of
	SEERA.7	
See
	Placerville
Union
	School
	District
	(9/18/78),
	PERB
	Decision
	No. 	69; 	and
Anaheim 	Union High
	School
	District
	(10/28/81),
	PERB
	Decision
No.
	177.
	A narrow
	construction
	of
	subsection
	3514.S(a) 	might
well 	operate 	to 	discourage
	bilateral
	dispute
	resolution.
Grievants
	would 	be
	forced 	to
	file
	unfair
	practice
	charges
	in
the
	first
	instance 	in
	order 	to
	protect 	their 	right
	of
	access 	to
PERB.
	Voluntary
	resolution
	would 	be
	replaced
	by
	litigiousness.
6EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et
	seq.
?section
	3540
	states,
	in 	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 	forrecognizing 	the
	right
	of
	public
	school
employees
	to 	join 	organizations
	of
	their
	own
choice, 	to
	be
	represented
	by 	such
organizations 	in
	their 	professional
	and
employment
	relationships
	with
	public 	schoolemployers, 	to
	select
	one 	employee
organization
	as 	the 	exclusive 	representativeof 	the
	employees
	in
	an
	appropriate 	unit,
	and
to 	afford
	certificated
	employees 	a
	voice
	in
the 	formulation 	of 	educational 	policy.
Nothing 	contained 	herein 	shall
	be 	deemed
	tosupersede 	other 	provisions 	of 	the 	Education
Code 	and
	the 	rules
	and
	regulations 	of 	publicschool 	employers 	which
	establish
	and
regulate 	tenure 	or 	a
	merit 	or
	civil
	servicesystem 	or
	which
	provide 	for 	other
	methods
	of
administering 	employer-employee
	relations,
so 	long 	as 	the 	rules
	and
	regulations 	or
other
	methods 	of 	the 	public 	school 	employer
do 	not
	conflict
	with 	lawful 	collectiveagreements. 10

Further, 	SEERA 	affirms 	State 	employee 	access 	to 	the
proceedings 	of 	the 	SPB,8 	but 	also 	provides 	that 	PERE 	shall
have 	initial 	exclusive 	jurisdiction 	to 	resolve 	unfair 	practice
charges.9 	In 	Pacific 	Legal 	Foundation 	v. 	Brown 	(1981) 	29
Cal. 	3d 	168, 	the 	California Supreme 	Court 	acknowledged 	the
overlapping 	jurisdiction of 	SPB 	and 	PERE. 	Finding 	no 	resulting
unconstitutional 	conflict, 	the 	Court 	left 	to 	both 	Boards 	the
task 	of 	working 	out 	some 	accommodation 	of 	their 	respective
processes. 	Were 	PERB 	to 	reject 	the 	doctrine 	of 	equitable
tolling, 	it 	would 	force 	State 	employees 	seeking 	to 	resolve
certain 	disputes 	over 	disciplinary 	action 	either 	to 	file
simultaneous 	appeals 	and 	charges 	with 	SPB 	and 	PERE 	or 	risk 	loss
of 	access 	to 	one 	or 	the 	other 	forum. 	By 	applying 	the 	doctrine,
with 	its 	inherent 	safeguards 	against 	prejudice 	and 	surprise,
PERB 	can 	provide 	one 	form 	of 	accommodation 	to 	the 	two Boards'
jurisdictional 	concerns.
In 	sum, 	we 	conclude 	that 	it 	is 	permissible 	and 	appropriate
for 	this 	Board 	to 	apply 	the 	doctrin~ 	of 	equitable 	tolling 	in
cases 	where 	unfair 	practice 	charges 	have 	been 	filed 	more 	than
six 	months 	after 	the 	alleged 	violation 	of 	SEERA10 	and 	the
8section 	3512, 	supra.
9section 	3514.5, 	supra.
lOThe 	Board 	notes 	that 	Mr. 	Peernock's 	discharge, 	which 	he
alleges 	to 	be 	a 	violation 	of 	the 	Act, 	occurred 	on
11

issues 	raised
	by
	the 	charge
	have 	been
	pursued
	by
	appeal
	to
	the
SPB
	or 	through
	a
	grievance 	procedure,
	whether
	or
	not
negotiatea.11
This
	doctrine
	should
	be
	applied
	on 	a
	case
	by
	case
	basis,
weighing
	the
	equities
	of 	the
	respective
	parties.
	Because
	we
	do
not
	have
	before
	us 	an
	adequate 	record
	of
	what
	charges
	and
defenses
	were
	raised
	in 	the
	earlier
	SPB
	and
	grievance
	hearings,
we
	cannot
	presently
	make
	such
	a
	determination
	as
	to
	possible
prejudice 	to
	the 	charged
	party.
	Accordingly,
	the
	cases 	are
remanded
	for
	further 	consideration
	and
	disposition.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record
	in 	these
cases,
	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	cases 	of
	State
	Employees'
	Trades 	Council 	v.
	State
	of
California,
	Department
	of
	Water
	Resources
	(LA-CE-16-S)
	and-
Richard
	c.
	Matta 	v.
	State
	of
	California,
·oepartment 	of
December
	27,
	1979 	and
	that
	the 	charge
	was
	timely
	filed
	with
PERB
	within
	six
	months
	of
	that 	date.
	However,
	the
	tolling
question
	may 	be
	of 	relevance 	to
	certain
	other 	charges
	whichMr.
	Peernock
	initially
	processed 	through
	his 	departmental
grievance 	procedure.
	The
	parties
	are 	in 	disagreement 	as 	towhether
	most
	of 	these 	grievances
	were
	resolved 	within 	six
months
	of 	Pernock's
	filing
	of 	charges.
llThe
	State's
	argument
	that
	an
	appeal 	of 	disciplinary
action 	is
	not
	a
	grievance
	is 	rejected. 	Sections 	540.1 	through
540.11 	of
	title
	2
	of 	the 	California Administrative
	Code,
	citedby 	the
	State, 	are 	regulations
	adopted
	by 	SPB
	for
	its
	own
purposes,
	and
	are 	not 	binding
	upon 	PERB.
12

Developmental·Services
	(SF-CE-20-S),
	are
	remanded
	to
	the
	Chief
Administrative
	Law
	Judge
	for
	disposition
	in
	accordance
	with
	the
foregoing
	decision
	and
	this
	Order.
By:
rii((nuck,	
Cha..i.rperson
ffarbara
	D.
	Moore,
	Member
13