California State University, Fullerton (PERB 0605H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
FULLERTON,
Respondent.
Case No. 	LA-CE-141-H
PERB 	Decision 	No. 	605-H
December 31, 1986
Appearances; 	Princess Grey, 	on her own behalf; 	Howard
Schwartz, 	Attorney 	for California 	State 	Employees' 	Association;
William 	B. 	Haughton, 	Attorney 	for 	California 	State 	University.
Before Hesse, 	Chairperson; Morgenstern, 	Burt and Porter,
Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on 	appeal 	by Princess 	Grey of a 	Board
agent's 	order, 	attached hereto, 	entitled 	Order 	Granting Motion
for 	Reconsideration 	and Motion 	to 	Dismiss 	Complaint. 	The
complaint 	alleged 	that 	the 	California 	State 	University,
Fullerton 	violated 	section 	3571(a) 	of 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(Gov. 	Code 	sec. 	3560 et 	seq.)
by 	taking 	reprisals 	against 	Princess 	Grey.
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We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the 	Board
1itself, 	in 	that 	the 	charges were not 	timely 	filed.
ORDER
The 	unfair practice 	charge 	in 	Case 	No. 	LA-CE-141-H 	is
hereby 	DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson 	Hesse 	and Members 	Morgenstern 	and 	Porter 	joined 	in
this 	Decision.
1Chairperson 	Hesse 	would 	dismiss 	the 	appeal 	on 	the
grounds 	that 	Grey does 	not have 	standing 	to appeal. 	She
concurs 	that 	the 	ALJ 	correctly 	relied 	upon 	Saddleback 	Valley
Unified 	School 	District 	(1985) 	PERB Decision No. 	558 	in
computing 	the 	six-month 	limitation 	on 	filing of 	charges.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA 	STATE 	COLLEGE
(FULLERTON),
Respondent.
Case No. 	LA-CE-141-H
ORDER 	GRANTING 	MOTION 	FOR
RECONSIDERATION 	AND 	MOTION
TO 	DISMISS 	COMPLAINT
(3/26/86)
NOTICE 	IS 	HEREBY 	GIVEN 	that 	Respondent's 	Motion 	for
Reconsideration 	of 	the 	Order 	Denying 	Respondent's 	Motion 	to
Dismiss 	Complaint 	is 	granted. 	Consequently, 	the 	order 	issued
March 	3, 	1986, 	is 	reversed. 	This 	reversal 	is due 	to 	an error
that 	was 	made 	in computing 	the 	six-month 	limitations 	period
established 	by 	subsection 	3563.2(a) 	of 	HEEEA.
After 	further 	review of 	the 	method 	of 	computation 	employed
by 	the 	Board 	in 	Saddleback 	Valley 	Unified 	School 	District
(1985) 	PERB Decision No. 	558, 	it 	is determined, 	for the reasons
set 	forth below, 	that 	the 	charge 	is 	time-barred 	by 	subsection
3563.2(a) 	and 	the complaint must 	be 	dismissed.
PROCEDURAL 	HISTORY
The Motion 	to 	Dismiss 	Complaint 	was 	filed 	by 	Respondent 	on
February 10, 	1986. 	In 	response 	to a 	telephone call on
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February 19, 	1986, 	Mr. 	Louis Kiger, 	representative for 	the
Charging 	Party, 	stated 	that 	he 	did 	not 	intend 	to 	submit 	a
written 	response 	to 	the 	motion. 	At 	the 	informal 	conference 	on
February 	26, 	1986, 	the 	undersigned 	told 	the parties 	that 	the
motion would 	be 	denied 	by written 	order. 	Subsequently, 	the
Order 	Denying 	the 	Motion 	to 	Dismiss 	was 	issued 	on
March 3, 	1986. 	On March 14, 	1986, 	the Respondent filed 	the
Motion 	for 	Reconsideration 	of 	the 	Order 	Denying 	Motion 	to
Dismiss. 	In another 	telephone call to Mr. 	Kiger 	on
March 18, 	1986, 	he was 	informed that, 	it he desired, 	he had
until March 	24, 	1986, 	to 	file 	a written 	response 	to 	the
March 14 	motion. 	As 	of 	March 	25, 	no 	response 	was 	received.
DISCUSSION
The 	reversal 	of 	the 	original 	order 	denying 	the 	motion 	to
dismiss 	is 	limited 	to 	the method 	that 	was 	used 	to 	compute 	the
six-month 	limitations 	period 	for 	purposes 	of 	determining 	the
timeliness 	of 	the 	charge. 	The 	discussion 	of 	relevant 	PERB and
private 	sector 	case 	law 	concerning 	the 	statute 	of 	limitations
contained 	in page 	1 	through 	page 	6 	(through 	the 	end 	of 	the
paragraph 1) 	of the original order of March 	3, 	1986, 	is not
changed 	by 	this 	order. 	Instead, 	it 	is 	incorporated 	here 	by
reference 	as 	though 	fully 	set 	forth.
In Saddleback Valley Unified 	School District, 	supra, 	the
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Board, 	in 	interpreting 	section 	12 	of 	the 	California 	Civil
Code,1 held 	that 	"the 	six-month 	period 	is 	to 	be 	computed 	by
excluding 	the 	day 	the 	alleged 	misconduct 	took 	place 	and
including 	the last day 	. 	. 	. 	. 	" 	In Saddleback the 	school
board 	adopted 	a 	proposal 	on 	June 	20. 	The 	Board 	calculated 	that
" . . . 	the 	six-month 	period 	started 	on 	June 	21, 	1984, 	the 	day
after 	the 	school 	board 	adopted 	the proposal, 	and 	ended 	at 	the
close 	of 	business 	on 	December 	20, 	1984." 	The 	Board 	then held
that 	the charge, 	which was filed on December 	21, 	1984, 	was
untimely. 	In 	this case Ms. 	Gray 	received 	the 	notice 	of
rejection 	on March 	13, 	1985. 	Hence 	the 	statute 	of 	limitations
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began 	to 	run 	on March 	14. 	Based 	on 	the method 	of
1Section 	12 	of 	the 	California 	Code 	of 	Civil 	Procedure
provides:
The 	time 	in 	which 	any 	act provided 	by 	law 	is
to 	be 	done 	is 	computed 	by 	excluding 	the
first 	day, 	and 	including 	the 	last, 	unless
the 	last day 	is 	a holiday, 	and 	then 	it 	is
also 	excluded.
2 It 	is 	undisputed 	by 	the 	parties 	that 	the 	grievance 	filed
on March 	6, 	1985 	by Miss 	Gray does 	not 	justify 	a 	tolling 	of 	the
statute 	of 	limitations. 	In 	the March 	6 	grievance Miss Gray
alleged 	she 	had 	been 	harassed 	by 	another 	employee. 	That
grievance was 	resolved 	on March 	26, 	1985.
Further, 	it 	is 	undisputed 	by 	the 	parties 	that this
grievance 	was 	not 	related 	to 	the 	letter 	of 	reprimand 	Miss 	Gray
received 	on February 	26, 	1985, 	nor 	the 	notice 	of 	rejection
received on March 	13, 	1985.
Under 	the 	collective 	bargaining 	agreement 	then 	in 	effect
for Unit 	7 	employees, 	a grievance 	could 	not 	be 	filed 	over 	an
oral 	or 	written 	reprimand. 	Article 	11, 	section 	11.6 	stated
that: 	"Reprimands 	are 	not 	subject 	to Article 	7, 	Grievance
Procedure, 	unless 	there 	is an 	alleged Agreement
violation 	. 	. 	. 	." 	Here, 	there was no allegation of 	breach of
contract. 	However, 	the 	contract does 	provide 	that 	an 	employee
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computation 	utilized 	by 	the 	Board 	in 	Saddleback, 	the 	last 	day
CSEA 	could 	have 	filed 	a 	timely charge 	was 	September 	13, 	1985.
Since 	the charge was 	not 	filed 	until September 	16, 	1985, 	the
charge 	was 	untimely. 	Thus 	the 	charge 	and 	the 	complaint must 	be
dismissed.
ORDER
Based 	on 	the 	reasons 	stated 	above, 	the 	complaint 	and 	the
charge 	are 	DISMISSED 	in 	their 	entirety.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	Regulation
32635 	(California Administrative Code, 	title 	8, 	part 	III),
Fn. 	2 	(Continued)
may 	request 	a conference 	over 	a 	written 	reprimand 	(Article 	11,
section 	11.2.). 	Miss Gray 	received her 	reprimand on
February 	16, 	1985. 	She 	requested 	a 	conference which was 	held
on February 	26, 	1985. 	Thus, 	this matter was 	resolved
approximately 	3 	weeks 	before 	Gray 	received 	her 	notice 	of
rejection 	during 	probation.
Under 	the doctrine 	of 	equitable 	tolling, 	the 	conference
would 	not 	justify 	a 	tolling 	of 	the 	statute 	of 	limitations. 	For
the doctrine 	of 	equitable 	tolling 	to 	apply, 	two 	criteria 	must
be met. 	First, 	the 	tolling 	must 	not 	frustrate the purposes 	of
the 	statute 	of 	limitations provisions, 	which 	is meant 	to
prevent 	surprises 	through 	the 	revival 	of 	old 	claims. 	Second,
the 	tolling 	period 	must 	reflect 	the 	time 	during 	which 	an
injured 	party 	"has 	several 	legal 	remedies 	and 	pursues 	one 	in
good 	faith." 	California Dept, 	of Water 	Resources 	(1981) 	PERB
Decision No. 	Ad-122-S. 	Miss 	Gray did 	not pursue 	any 	other
legal 	remedy concerning 	the 	reprimand. 	Therefore, 	the 	doctrine
clearly 	does 	not 	apply.
Finally, 	under 	Article 	9, 	section 	9.20 	of 	the collective
bargaining 	agreement, 	an 	employee 	rejected 	during 	probation 	is
barred 	from 	utilizing 	the 	grievance 	procedure 	to 	appeal 	the
decision 	to 	reject. 	In 	this 	case 	Miss 	Gray 	filed 	no 	grievances
over 	the 	letter 	of 	rejection 	and 	hence 	tolling 	on 	this 	basis 	is
not 	an 	issue.
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Charging 	Party 	may 	appeal 	the 	dismissal 	of 	this 	complaint 	to
the 	Board 	itself.
Review 	of 	Dismissal
Charging 	Party 	may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the
charge 	by 	filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty
(20) 	calendar 	days 	after 	service 	of 	this 	order 	(section
32635(a)). 	To be 	timely 	filed, 	the 	original 	and 	five 	(5)
copies 	of 	such 	appeal 	must 	be 	filed 	in writing 	with 	the 	Board
itself 	in 	the 	headquarters 	office 	by 	April 	15, 	1986 	and 	shall
be 	signed 	by 	the 	Charging 	Party 	or 	its 	agent. 	The Board's
address 	is
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
If 	the 	Charging 	Party 	files 	a 	timely 	appeal 	to 	this
dismissal, 	any 	other 	party may 	file 	with 	the 	Board 	itself 	an
original 	and 	five 	copies 	of 	a 	statement 	in 	opposition 	within 	20
days 	following 	the 	date 	of 	service 	of 	the 	appeal. 	Service 	and
proof 	of 	service 	of 	the 	statement 	pursuant 	to 	section 	32140 	are
required.
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Dated: 	March 	26, 	1986
W .
. 	Jean Thomas
Administrative 	Law 	Judge
.v V
UT
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