San Dieguito Union High School District (PERB 0194E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San 	Dieguito 	Faculty 	Association
Charging 	Party,
v.
San 	Dieguito 	Union 	High 	School
District,
Respondent.	Respondent.
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_____________ , _______ )
Case 	No. 	LA-CE-479
PERB 	Decision 	No. 	194
February 	25, 	1982
~_eeearances: 	Raymond 	L. 	Hansen 	and 	Charles 	R. 	Gustafson,
Attorneys 	for 	San 	Dieguito 	Faculty Association.
Before 	Tovar, 	Jaeger 	and 	Moore, 	Members.
DECISION	DECISION
The 	San 	Dieguito 	Faculty Association 	(hereafter 	Association
or 	Charging 	Party) 	excepts 	to 	the 	hearing 	officer's 	dismissal
of 	an 	unfair 	practice 	charge 	filed 	against 	the 	San 	Dieguito
Union High 	School 	District 	(hereafter 	District). 	The 	hearing
officer 	concluded 	that 	the 	charges 	were 	untimely 	filed,
pursuant 	to 	section 	3541.5 	of 	the 	Educational Employment
Relations 	Act 	(hereafter 	EERA), 	and 	he 	therefore 	dismissed 	the
charges 	without 	leave 	to 	amend.l
1l•rhe 	EERA 	is 	codified 	at 	sections 	3540 	et 	seq. 	of 	the
Government 	Code. 	Unless 	otherwise 	indicated, 	all 	citations 	are
to 	the 	Government 	Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
San Diegueto Faculty Association
Charging Party, 	Case No. LA-CE-479
v . 	PERB Decision No. 194
San Diegueto Union High School 	February 25, 1982
District,
Appearances: Raymond L. Hansen and Charles R. Gustafson,
Attorneys for San Diegueto Faculty Association.
Before Tovar, Jaeger and Moore, Members.
The San Diegueto Faculty Association (hereafter Association
or Charging Party) excepts to the hearing officer's dismissal
of an unfair practice charge filed against the San Diegueto
Union High School District (hereafter District). The hearing
officer concluded that the charges were untimely filed,
pursuant to section 3541.5 of the Educational Employment
Relations Act (hereafter EERA) , and he therefore dismissed the
charges without leave to amend. 1
The EERA is codified at sections 3540 et seq. of the
Government Code. 	Unless otherwise indicated, all citations are
to the Government Code.

Based 	on 	an 	examination 	of 	the 	entire 	record, 	and 	in 	light
of 	the 	exceptions 	filed, 	the 	hearing 	officer's 	proposed
dismissal 	of 	the 	charges 	is 	affirmed, 	for 	the 	reasons 	discussed
below.
FACTS	FACTS
As 	stated 	by 	the 	hearing 	officer, 	the 	relevant 	facts 	are 	as
follows:
The 	Association 	originally 	filed 	an 	unfair 	practice 	charge
on 	May 	23, 	1979, 	alleging 	conduct 	in 	violation 	of 	subsections
3543. 5 (a), 	(b), 	and 	( c). 2In In 	summary 	the 	charges 	alleged:
1. 	During 	the 	1977-78 	school 	year 	the 	District
unilaterally 	changed 	the 	terms 	and 	conditions 	of 	employment 	of
certificated 	employees 	which 	had 	been 	established 	by 	past
practice 	and 	incorporated 	into 	the 	1977-80 	negotiated
contract. 	The 	unilateral 	change 	required 	employees 	to 	remain
22section 	3543.5 	provides, 	in 	pertinent 	part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2
Based on an examination of the entire record, and in light
of the exceptions filed, the hearing officer's proposed
dismissal of the charges is affirmed, for the reasons discussed
below.
As stated by the hearing officer, the relevant facts are as
follows :
The Association originally filed an unfair practice charge
on May 23, 1979, alleging conduct in violation of subsections
3543.5 (a) , (b) , and (c) . 2 	summary the charges alleged:
1. During the 1977-78 school year the District
unilaterally changed the terms and conditions of employment of
certificated employees which had been established by past
practice and incorporated into the 1977-80 negotiated
contract. The unilateral change required employees to remain
Section 3543.5 provides, in pertinent part:
It shall be unlawful for a public school
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.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
N

on 	campus 	during 	their 	preparation 	period 	unless 	given
permission 	to 	leave 	campus 	or 	unless 	they 	utilized 	a 	sign-out
sheet.
2. 	The 	Association 	had 	filed 	certain 	grievances 	in 	October
and 	November 	1977, 	pursuant 	to 	the 	grievance 	procedure 	in 	the
contract 	which 	concluded 	with 	advisory 	arbitration. 	The
grievance 	resulted 	in 	an 	advisory 	arbitration 	award, 	issued 	on
May 	22, 	1978, 	which 	was 	favorable 	to 	Charging 	Party 	and 	which
was 	denied 	in 	pertinent 	part 	by 	the 	District 	on 	June 	22, 	1978.
3. 	On September 	28, 	1978, 	the 	Association 	filed 	an
additional 	grievance 	over 	the 	identical 	issue 	which 	was
rejected 	by 	the 	District 	on October 	26, 	1978.
4. 	On 	January 	8, 	1979, 	The 	Association 	filed 	an 	action 	in
the 	San 	Diego Superior 	Court 	seeking 	enforcement 	of 	the
contract provision 	allegedly 	violated 	by 	the 	District. 	The
Court 	on 	March 	23, 	1979 	denied 	the 	petition 	on 	grounds 	raised
by 	the 	District 	that 	the 	Charging 	Party 	had 	not 	exhausted 	its
administrative 	remedy 	before 	the 	Public Employment 	Relations
Board 	(hereafter 	PERB 	or 	Board).
In 	addition 	to 	specifically 	alleging 	a 	violation 	of 	the
collective 	negotiating 	contract, 	the 	Association 	apparently
alleges 	that 	the 	act 	of 	the 	District 	in 	unilaterally 	changing
the 	contract 	violates 	subsections 	3543.5 (a) 	and 	(c), 	and 	that
the 	refusal 	to 	abide 	by 	the 	arbitrator's 	decision 	and 	to
process 	the 	grievance 	violates 	subsections 	3543.S(a) 	and 	(b).
3
on campus during their preparation period unless given
permission to leave campus or unless they utilized a sign-out
sheet.
2. 	The Association had filed certain grievances in October
and November 1977, pursuant to the grievance procedure in the
contract which concluded with advisory arbitration. The
grievance resulted in an advisory arbitration award, issued on
May 22, 1978, which was favorable to Charging Party and which
was denied in pertinent part by the District on June 22, 1978.
3. On September 28, 1978, the Association filed an
additional grievance over the identical issue which was
rejected by the District on October 26, 1978.
4. On January 8, 1979, The Association filed an action in
the San Diego Superior Court seeking enforcement of the
contract provision allegedly violated by the District. The
Court on March 23, 1979 denied the petition on grounds raised
by the District that the Charging Party had not exhausted its
administrative remedy before the Public Employment Relations
Board (hereafter PERB or Board).
In addition to specifically alleging a violation of the
collective negotiating contract, the Association apparently
alleges that the act of the District in unilaterally changing
the contract violates subsections 3543.5 (a) and (c), and that
the refusal to abide by the arbitrator's decision and to
process the grievance violates subsections 3543.5 (a) and (b) .
w

Following 	an 	informal 	conference, 	an 	amended 	charge 	was
filed 	on July 	25, 	1979, 	alleging 	that 	the 	original 	charge 	was
timely 	filed 	because 	the 	District's 	change 	in 	working
conditions 	is 	a 	"continuing 	violation" 	each 	day 	the 	teachers
are 	required 	to 	use 	sign-out 	sheets 	to 	leave 	campus 	during
preparation 	periods.
The 	District 	filed 	an 	answer 	and 	motion 	to 	dismiss 	and
later 	a 	supplemental 	motion 	to 	dismiss 	contending 	that 	the
charge 	was 	barred 	by 	the 	statute 	of 	limitations.
DISCUSS ION	DISCUSS ION
Initially, 	we 	note 	that 	the 	charges 	allege 	conduct 	which
could 	be 	a 	breach 	of 	the 	contract 	between 	the 	District 	and 	the
Association. 	Subsection 	3541.S(b) 	provides 	in 	pertinent 	part
that 	the 	PERB
shall 	not 	have 	authority 	to 	enforce
agreements 	between 	the 	parties, 	and 	shall
not 	issue 	a 	complaint 	on 	any 	charge 	based 	on
alleged 	violation of 	such 	an 	agreement 	that
would 	not 	also 	constitute 	an 	unfair
practice 	. 	• 	•
It 	is 	not 	necessary 	to 	determine 	whether 	the 	alleged 	charge
would 	constitute 	an 	unfair 	practice 	independent 	of 	the 	alleged
contract 	violation 	since 	the 	case 	is 	disposed 	of 	on 	other
grounds.
The 	dismissal 	turns 	on 	the 	interpretation 	to 	be 	given 	to
the 	limitations 	period 	on 	the 	filing 	of 	unfair 	practice 	charges
contained 	in 	EERA 	subsection 	3541.S(a). 	This 	subsection
provides 	in 	pertinent 	part:
4
Following an informal conference, an amended charge was
filed on July 25, 1979, alleging that the original charge was
timely filed because the District's change in working
conditions is a "continuing violation" each day the teachers
are required to use sign-out sheets to leave campus during
preparation periods.
The District filed an answer and motion to dismiss and
later a supplemental motion to dismiss contending that the
charge was barred by the statute of limitations.
Initially, we note that the charges allege conduct which
could be a breach of the contract between the District and the
Association. Subsection 3541.5 (b) provides in pertinent part
that the PERB
shall not have authority to enforce
agreements between the parties, and shall
not issue a complaint on any charge based on
alleged violation of such an agreement that
would not also constitute an unfair
practice .
It is not necessary to determine whether the alleged charge
would constitute an unfair practice independent of the alleged
contract violation since the case is disposed of on other
grounds.
The dismissal turns on the interpretation to be given to
the limitations period on the filing of unfair practice charges
contained in EERA subsection 3541.5 (a) . This subsection
provides in pertinent 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) 	. 	. 	• 	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.
Because 	the 	Association's 	initial 	charge 	was 	filed 	on
May 	23, 	1979, 	the 	statutory 	limitation 	period 	would 	have
extended 	from 	that 	date 	to November 	24, 	1978. 	Because 	the
unilateral 	action 	complained 	of 	by 	the 	Association 	was 	taken 	in
the 	fall 	of 	1977, 	the 	charge 	filed 	in 	May 	1979 	appears 	on 	its
face 	to 	be 	untimely.
However, 	the 	charge 	may 	still 	be 	considered 	to 	be 	timely
filed 	if 	the 	alleged 	violation 	is 	a 	continuing 	one, 	if 	the
violation 	has 	been 	revived 	by 	subsequent 	unlawful 	conduct
within 	the 	six-month 	period, 	or 	if 	the 	limitation 	period 	was
tolled 	while 	the 	Association 	was 	diligently 	and 	reasonably
pursuing 	alternative 	procedures 	for 	obtaining 	relief 	and 	other
alternative 	remedies.
The 	Association 	contends 	that 	the 	District's 	implementation
of 	its 	sign-out 	policy 	in 	1977 	created 	a 	continuing 	violation;
there 	was 	a 	new 	violation 	each 	time 	a 	teacher 	was 	required 	to
sign 	out. 	The 	Association 	asserts 	that, 	because 	the 	sign-out
5
(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) . 	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.
Because the Association's initial charge was filed on
May 23, 1979, the statutory limitation period would have
extended from that date to November 24, 1978. Because the
unilateral action complained of by the Association was taken in
the fall of 1977, the charge filed in May 1979 appears on its
face to be untimely.
However, the charge may still be considered to be timely
filed if the alleged violation is a continuing one, if the
violation has been revived by subsequent unlawful conduct
within the six-month period, or if the limitation period was
tolled while the Association was diligently and reasonably
pursuing alternative procedures for obtaining relief and other
alternative remedies.
The Association contends that the District's implementation
of its sign-out policy in 1977 created a continuing violation;
there was a new violation each time a teacher was required to
sign out. The Association asserts that, because the sign-out
UI

policy 	continued 	in 	effect 	in 	1979, 	the 	charge 	would 	not 	be
barred 	by 	the 	six-month 	limitation 	period.
In 	deciding 	whether 	the 	alleged 	violation may 	be 	regarded
as 	a 	continuing 	one, 	this 	Board 	may 	be 	guided 	by 	federal 	labor
law 	decisions 	which 	interpret 	provisons 	of 	the 	National 	Labor
Relations 	Act 	(hereafter 	NLRA) 	which 	are 	similar 	to 	provisions
of 	the 	EERA. 	(Pajaro Valley 	Unified 	School 	District 	(5/22/78)
PERB 	Decision No. 	51.)
Section 	lO(b) 	of 	the 	NLRA 	provides 	for 	a 	six-month
limitation 	period 	on 	the 	filing 	of 	unfair 	practice 	charges, 	and
it 	is 	therefore 	appropriate 	to 	look 	to 	National 	Labor 	Relations
Board 	(hereafter 	NLRB) 	cases 	for 	guidance 	in 	deciding 	whether
an 	alleged 	EERA 	violation 	is 	a 	continuing 	one 	for
section 	3541.5 	purposes.3
33Section 	lO(b) 	of 	the 	NLRA 	provides 	in 	pertinent 	part:
(b) 	Whenever 	it 	is 	charged 	that 	any 	person
has 	engaged 	in 	or 	is 	engaging 	in 	any 	such
unfair 	labor 	practice, 	the 	Board, 	or 	any
agent 	or 	agency 	designated 	by 	the 	Board 	for
such 	purposes, 	shall 	have 	power 	to 	issue 	and
cause 	to 	be 	served 	upon 	such 	person 	a
complaint 	stating 	the 	charges 	in 	that
respect, 	and 	containing 	a 	notice 	of 	hearing
before 	the 	Board 	or 	a 	member 	thereof, 	or
before 	a 	designated 	agent 	or 	agency, 	at 	a
place. therein 	fixed, 	not 	less 	than-five 	days
after 	the 	serving 	of 	said 	complaint:
Provided, 	that 	no 	complaint 	shall 	issue
based 	upon 	any 	unfair 	labor 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the
filing 	of 	the 	charge 	with 	the 	Board 	and 	the
6
policy continued in effect in 1979, the charge would not be
barred by the six-month limitation period.
In deciding whether the alleged violation may be regarded
as a continuing one, this Board may be guided by federal labor
law decisions which interpret provisons of the National Labor
Relations Act (hereafter NLRA) which are similar to provisions
of the EERA. 	(Pajaro Valley Unified School District (5/22/78)
PERB Decision No. 51.)
Section 10 (b) of the NLRA provides for a six-month
limitation period on the filing of unfair practice charges, and
it is therefore appropriate to look to National Labor Relations
Board (hereafter NLRB) cases for guidance in deciding whether
an alleged EERA violation is a continuing one for
section 3541.5 purposes. 3
Section 10 (b) of the NLRA provides in pertinent part:
(b ) 	Whenever it is charged that any person
has engaged in or is engaging in any such
unfair labor practice, the Board, or any
agent or agency designated by the Board for
such purposes, shall have power to issue and
cause to be served upon such person a
complaint stating the charges in that
respect, and containing a notice of hearing
before the Board or a member thereof, or
before a designated agent or agency, at a
place therein fixed, not less than five days
after the serving of said complaint:
Provided, that no complaint shall issue
based upon any unfair labor practice
occurring more than six months prior to the
filing of the charge with the Board and the
6

service
	of
	a 	copy	
thereof	
upon
	the 	person
against
	whom
	such 	charge	
is	
made,
	unless 	the
person 	aggrieved 	thereby
	was
	prevented
	from
filing
	such 	charge 	by 	reason 	of 	service 	inthe	
armed
	forces, 	in
	which
	event 	thesix·-month
	period 	shall	
be 	computed 	from	
theday	
of 	his 	discharge
.•••
The
	inquiry
	in 	these 	cases
	tends
	to
	focus
	on
	the
	employer's
duty 	to
	bargain.
	As
	we
	have
	held
	in 	previous
	cases,
	a
unilateral
	change
	regarding
	a
	negotiable 	matter
	is
	a
	violation
of
	EERA
	subsection
	3543.
5 (c)
	because
	it
	is
	a
	breach
	of 	the
employer's
	obligation
	to
	negotiate
	in
	good
	faith
	with 	the
exclusive
	representative.
	(See
	Pajaro Valley,
	sup£~;
	NLRB
	v.
Katz
	(1962) 	369
	U.S.
	736 	[50
	LRRM
	2177].)
	It
	is
	well
established
	that
	the 	employer's
	duty
	to
	negotiate
	with
	the
exclusive 	representative 	is
	ongoing,
	continuing 	throughout 	the
collective
	negotiating
	relationship.
	The
	question 	presented
here,
	however,
	is
	whether
	conduct
	violative
	of
	negotiating
obligations 	retains
	its
	unlawful
	character
	as 	long 	as
	the
employer's
	duty 	to
	negotiate 	continues,
	or
	whether
	other
related
	conduct,
	such
	as 	reimplementation
	or 	subsequent
refusals
	to
	negotiate, 	is
	necessary 	to 	revive 	the
	viability
	of
the
	unfair
	practice.
The
	NLRB
	and
	federal 	courts
	have
	considered
	a
	variety
	of
circumstances 	in 	determining
	whether
	the 	conduct
	was
	continuing
for
	NLRA
	section
	lO(b)
	purposes.
7
The inquiry in these cases tends to focus on the employer's
duty to bargain. As we have held in previous cases,
unilateral change regarding a negotiable matter is a violation
of EERA subsection 3543.5 (c) because it is a breach of the
employer's obligation to negotiate in good faith with the
exclusive representative. 	(See Pajaro Valley, Supra; NLRB v.
Katz (1962) 369 U.S. 736 [50 LRRM 2177] .) It is well
established that the employer's duty to negotiate with the
exclusive representative is ongoing, continuing throughout the
collective negotiating relationship. The question presented
here, however, is whether conduct violative of negotiating
obligations retains its unlawful character as long as the
employer's duty to negotiate continues, or whether other
related conduct, such as reimplementation or subsequent
refusals to negotiate, is necessary to revive the viability of
the unfair practice.
The NLRB and federal courts have considered a variety of
circumstances in determining whether the conduct was continuing
for NLRA section 10 (b) purposes.
service of a copy thereof upon the person
against whom such charge is made, unless the
person aggrieved thereby was prevented from
filing such charge by reason of service in
the armed forces, in which event the
six-month period shall be computed from the
day of his discharge.

In 	~ocal_!:odge 	1424, 	International Association of
Machinists 	v. 	NLRB 	( 1960) 	36 2 US 	411 	[ 45 	LRRM 	3212] , 	the 	Court
held 	that 	conduct 	which 	gives 	rise 	to 	an 	unfair 	labor 	practice
does 	not, 	by 	virtue 	of 	its 	continued 	enforcement 	within 	the
period 	of 	limitations, 	constitute 	a 	continuing 	violation 	under
the 	NLRA. 	In 	that 	particular 	case, 	the 	complaint 	involved 	an
invalid 	recognition 	of 	a 	representative 	and 	a 	negotiated 	union
security 	clause. 	The 	Court 	ruled 	that 	the 	clause 	was 	tainted
solely 	by 	the 	original 	unlawful 	execution 	of 	the 	collective
bargaining 	agreement 	and 	the 	enforcement 	of 	the 	otherwise 	valid
clause 	was 	not 	in 	itself 	a 	violation 	of 	the 	NLRA.
The 	NLRB 	has 	also 	found 	that 	a 	unilateral 	change 	involving
the 	employer's 	allocation of 	overtime 	did 	not 	constitute 	a
continuing 	violation. 	Continental Oil 	Co. 	(1971) 	194 	NLRB 	126
[78 	LRRM 	1626]. 	Involved 	was 	an 	application of 	the 	employer 1 s
method 	of 	allocating 	overtime 	which 	was 	not 	in 	conformity 	with
the 	collective 	bargaining 	agreement. 	In 	a 	footnote, 	the 	NLRB
commented 	that 	it 	could 	not 	be 	seriously 	suggested 	that 	the
employer 	was 	required 	to 	bargain 	with 	the 	union 	each 	time 	it
assigned 	overtime 	work.
The 	Association 	cites 	several 	cases 	in 	which 	an 	employer's
unilateral 	change 	in 	the 	terms 	and 	conditions 	of 	employment 	was
found 	to 	result 	in 	a 	continuing 	violation. 	The 	obligation 	to
bargain 	collectively 	with 	the 	union 	was 	a 	continuing 	one, 	for
example, 	where 	there 	were 	repeated 	refusals 	to 	bargain 	which
8
In Local Lodge 1424, International Association of
Machinists v. NLRB (1960) 362 US 411 [45 LRRM 3212] , the Court
held that conduct which gives rise to an unfair labor practice
does not, by virtue of its continued enforcement within the
period of limitations, constitute a continuing violation under
the NLRA. In that particular case, the complaint involved an
invalid recognition of a representative and a negotiated union
security clause. The Court ruled that the clause was tainted
solely by the original unlawful execution of the collective
bargaining agreement and the enforcement of the otherwise valid
clause was not in itself a violation of the NLRA.
The NLRB has also found that a unilateral change involving
the employer's allocation of overtime did not constitute a
continuing violation. Continental Oil Co. (1971) 194 NLRB 126
[78 LRRM 1626]. Involved was an application of the employer's
method of allocating overtime which was not in conformity with
the collective bargaining agreement. In a footnote, the NLRB
commented that it could not be seriously suggested that the
employer was required to bargain with the union each time it
assigned overtime work.
The Association cites several cases in which an employer's
unilateral change in the terms and conditions of employment was
found to result in a continuing violation. The obligation to
bargain collectively with the union was a continuing one, for
example, where there were repeated refusals to bargain which
Co

constituted 	independent 	violations.4ly, 	Similarly, 	in Beer
_Distributors 	(1972) 	196 	NLRB 	165 	[8 	LRRM 	1235] 	the 	NLRB 	has
found 	monthly 	withholding 	of 	union 	dues 	from 	the 	union 	to 	be 	a
continuing 	violation, 	since 	the 	failure 	of 	the 	employer 	to
transmit 	the 	dues 	to 	the 	union 	was 	repeated 	each 	month 	upon
receiving 	the 	union's 	request 	for 	the 	dues.
This 	is 	consistent 	with 	the 	finding 	that 	discriminatory
refusals 	to 	hire 	are 	continuing 	acts. 	Each 	discriminatory 	act
of 	refusing 	to 	hire 	is 	treated 	as 	a 	new 	and 	separate
violation.5	n 	In 	contrast, 	however, 	the 	NLRB 	has 	held 	that
where 	an 	employer 	has 	refused 	to 	rehire 	a 	discriminatorily
discharged 	employee, 	the 	failure 	to 	rehire 	was 	not 	regarded 	as
continuing, 	and 	the 	section 	l0(b) 	statute 	of 	limitations 	was
held 	to 	apply.
We 	find 	that 	the 	present 	case 	most 	closely 	resembles 	the
line 	of 	cases 	in 	which 	the 	violation 	was 	not 	found 	to 	be 	a
continuing 	one. 	In 	Continental Oil 	Co.,~~, 	which 	involved
the 	unilateral 	implementation 	of 	an 	overtime 	policy, 	the
44NLRB 	v. 	White 	Construction 	& Engineering 	Co. 	(5th 	Cir.
1963) 	204 	F.2a9·50"-T3TLRRM-2"I'9'ST; 	NLRB-v~ 	Basic 	Wire 	Pro_~~cts.!..
Inc. 	(6th 	Cir. 	1975) 	516 	F.2d 	261 	[89LRRM 	2257]; 	NLRB 	v.
~~r?nS 	(9th Cir. 	1967) 	386 	F.2d 	929 	[65 	LRRM 	3012]; 	NLRB 	v.
Lou1s1ana 	Bu~~~rs 	(5th 	Cir. 	1969) 	409 	F .2d 	1295 	[70 	LRRM 	3363].
55NLRB 	v. 	Textile 	Machine 	Works, 	Inc. 	(3rd 	Cir. 	1954) 	214
F .2d 	929 	[34 ~ET5T; 	NLRB-v. 	-~~£eenters 	Union 	(10th 	Cir.
1956) 	232 	F.2d 	454 	[37 	LRRM 	2712] 1 	cert. 	denied 	352 	U.S. 	839,
1 	L.Ed.2d 	56, 	77 	s.ct. 	60.
9
constituted independent violations. 4 Similar 	in Beer
Distributors (1972) 196 NLRB 165 [8 LRRM 1235] the NLRB has
found monthly withholding of union dues from the union to be a
continuing violation, since the failure of the employer to
transmit the dues to the union was repeated each month upon
receiving the union's request for the dues.
This is consistent with the finding that discriminatory
refusals to hire are continuing acts. Each discriminatory act
of refusing to hire is treated as a new and separate
violation.5 I 	contrast, however, the NLRB has held that
where an employer has refused to rehire a discriminatorily
discharged employee, the failure to rehire was not regarded as
continuing, and the section 10 (b) statute of limitations was
held to apply.
We find that the present case most closely resembles the
line of cases in which the violation was not found to be a
continuing one. In Continental Oil Co., supra, which involved
the unilateral implementation of an overtime policy, the
NLRB v. White Construction & Engineering Co. (5th Cir.
1963) 204 F. 2d 950 [32 LRRM 2198]; NLRB v. Basic Wire Products,
Inc. (6th Cir. 1975) 516 F. 2d 261 [89 LRRM 2257] ; NLRB v.
Strong (9th Cir. 1967) 386 F. 2d 929 [65 LRRM 3012]; NLRB v.
Louisiana Bunkers (5th Cir. 1969) 409 F. 2d 1295 [70 LRRM 3363].
NLRB v. Textile Machine Works, Inc. (3rd Cir. 1954) 214
F. 2d 929 [34 LRRM 2535]; NLRB v. Carpenters Union (10th Cir.
1956) 232 F.2d 454 [37 LRRM 2712] ; cert. denied 352 U.S. 839,
1 L. Ed. 2d 56, 77 S. Ct. 60.

employer 	adopted 	its 	interpretation 	of 	the 	overtime 	policy 	in
late 	1964 	or 	early 	1965. 	(It 	was 	also 	announced 	in 	writing 	in
April 	1966 	and 	again 	in June 	1967.) 	The 	charge 	was 	filed 	on
May 	19, 	1969. 	The 	NLRB 	specifically 	rejected 	the 	general
counsel's 	contention 	that 	the 	continued 	application 	of 	the
overtime 	policy 	removed 	the 	complaint 	from 	the 	six-month 	bar.
It 	implied 	that 	a 	change 	in 	the 	overtime 	policy 	would 	have
resulted 	in 	renewed 	unlawful 	conduct, 	but 	that 	during 	the
six·-month 	period, 	no 	change 	was 	alleged 	or 	proven. 	Similarly,
in 	the 	case 	before 	us, 	no 	new 	changes 	in 	the 	sign-out 	policy
were 	alleged 	during 	the 	six-month 	period 	preceding 	the 	charge.
We 	also 	do 	not 	find 	that, 	assuming 	the 	District's 	fall 	1977
policy 	change 	was 	unlawful, 	any 	subsequent 	District 	conduct
revived 	its 	unlawful 	character 	so 	as 	to 	bring 	it 	within 	the
limitation 	period. 	It may 	be 	argued 	that, 	in 	the 	face 	of 	the
employer's 	unilateral 	implementation 	of 	the 	sign-out 	policy,
any 	subsequent 	employer 	refusal 	to 	negotiate 	prompted 	by 	an
employee 	organization 	protest 	revives 	the 	employer's 	unlawful
conduct. 	We 	conclude, 	however, 	that, 	even 	if 	the 	second
grievance 	is 	seen 	as 	reviving 	the 	charge, 	the 	charge 	is
untimely 	filed. 	The 	second 	grievance, 	which 	was 	not 	processed,
was 	filed 	in 	September, 	1978, 	also 	outside 	of 	the 	six-month
period 	preceding 	the 	filing 	of 	the 	charge.
Finally, 	the 	Association 	urges 	that 	its 	charges 	were 	timely
filed 	because 	the 	limitation 	period 	was 	tolled 	until 	the 	effort
10
employer adopted its interpretation of the overtime policy in
late 1964 or early 1965. (It was also announced in writing in
April 1966 and again in June 1967.) The charge was filed on
May 19, 1969. The NLRB specifically rejected the general
counsel's contention that the continued application of the
overtime policy removed the complaint from the six-month bar.
It implied that a change in the overtime policy would have
resulted in renewed unlawful conduct, but that during the
six-month period, no change was alleged or proven. Similarly,
in the case before us, no new changes in the sign-out policy
were alleged during the six-month period preceding the charge.
We also do not find that, assuming the District's fall 1977
policy change was unlawful, any subsequent District conduct
revived its unlawful character so as to bring it within the
limitation period. It may be argued that, in the face of the
employer's unilateral implementation of the sign-out policy,
any subsequent employer refusal to negotiate prompted by an
employee organization protest revives the employer's unlawful
conduct. We conclude, however, that, even if the second
grievance is seen as reviving the charge, the charge is
untimely filed. The second grievance, which was not processed,
was filed in September, 1978, also outside of the six-month
period preceding the filing of the charge.
Finally, the Association urges that its charges were timely
filed because the limitation period was tolled until the effort
10

to 	enforce 	the 	arbitrator I s 	advisory 	award 	in 	Superior 	Court
was 	completed 	in 	March 	1979, 	only 	two 	months 	prior 	to 	the
filing 	of 	the 	charge.
The 	statute 	of 	limitations 	period 	does 	not 	invariably 	run
without 	interruption 	and 	terminate 	at 	the 	end 	of 	six 	months.
The 	concept of 	"tolling" 	has 	been 	developed 	to 	suspend 	running
of 	the 	statute. 	As 	a 	consequence, 	the 	aggrieved 	party 	is
protected 	from 	the 	forfeiture 	of 	rights 	which 	would 	otherwise
result 	from 	a 	strict 	application 	of 	the 	statute. 	Application
of 	this 	concept 	to 	the 	facts 	of 	this 	case 	depends 	on 	whether
either 	the 	statutory 	tolling 	provision 	contained 	in 	the 	EERA 	or
the 	Board's 	general 	equity 	power 	is 	broad 	enough 	to 	render 	the
Association 1 s 	charge 	timely 	filed.
Subsection 	3541.S(a) (2) 	is 	the 	statutory 	provision 	which
provides 	in 	appropriate 	circumstances 	for 	tolling 	of 	the
limitation 	period.6we However, 	according 	to 	its 	terms, 	only
66In 	full, 	subsection 	3541.5 (a) (2) 	states:
(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:
(2) 	issue 	a 	complaint 	against 	conduct 	also
prohibited 	by 	the 	provisions 	of 	the
agreement 	between 	the 	parties 	until 	the
grievance 	machinery 	of 	the 	agreement, 	if 	it
exists 	and 	covers 	the 	matter 	at 	issue, 	has
been 	exhausted, 	either 	by 	settlement 	or
11
to enforce the arbitrator's advisory award in Superior Court
was completed in March 1979, only two months prior to the
filing of the charge.
The statute of limitations period does not invariably run
without interruption and terminate at the end of six months.
The concept of "tolling" has been developed to suspend running
of the statute. As a consequence, the aggrieved party is
protected from the forfeiture of rights which would otherwise
result from a strict application of the statute. Application
of this concept to the facts of this case depends on whether
either the statutory tolling provision contained in the EERA or
the Board's general equity power is broad enough to render the
Association's charge timely filed.
Subsection 3541.5 (a) (2) is the statutory provision which
provides in appropriate circumstances for tolling of the
limitation period.6 Ho 	ver, according to its terms, only
In full, subsection 3541.5 (a) (2) states:
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:
(2) issue a complaint against conduct also
prohibited by the provisions of the
agreement between the parties until the
grievance machinery of the agreement, if it
exists and covers the matter at issue, has
been exhausted, either by settlement or
11

binding 	arbitration ••.• 	If 	the 	board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to 	the 	purposes 	of 	this
chapter, 	it 	shall 	issue 	a 	complaint 	on 	the
basis 	of 	a 	timely 	filed 	chaEg:~, 	and 	hear 	and
decide 	the 	case 	on 	the 	merits; 	otherwise, 	it
shall 	dismiss 	the 	charge. 	The 	board 	shall,
in 	determining 	whether 	the 	~meiy
filed, 	cons"Taer 	the 	six-month 	limi tatTon-set
forth 	in 	this 	subdTv1s1on 	to 	have 	been
tolled 	dur~ing_the 	time 	it 	took 	the 	charging
party 	to 	exhaust 	the 	grievance 	machinery.
(Emphasis 	added.)
where 	a 	collectively 	negotiated 	agreement 	provides 	for 	binding
arbitration 	will 	the 	statute 	of 	limitations 	be 	tolled 	during
the 	efforts 	of 	the 	parties 	to 	resolve 	their 	differences 	through
the 	grievance 	machinery.
The 	contract 	between 	the 	District 	and 	Association 	in 	this
case 	provides 	merely 	for 	advisory 	arbitration. 	As 	a
consequence, 	the 	period 	is 	not 	statutorily 	tolled 	during 	the
time 	the 	Association 	sought 	relief 	through 	the 	grievance
machinery.
The 	California 	courts 	have 	enunciated 	an ~uitable 	tolling
doctrine. 	Elkins 	v. 	Derby 	(1974) 	12 	C.3d 	410 	[115 	Cal.Rptr.
641]; 	Myer~ 	v. 	County 	of 	Orange 	(1970) 	6 	Cal.App.3d 	626
[86 	Cal.Rptr. 	198]. 	PERB 	adopted 	this 	doctrine 	in 	State 	of
California, 	D~~rtment_of 	Water 	Resources; 	State 	of 	California,
Qepa£:l:_me~t 	of 	Develoemental_ Services 	(12/29/81) 	PERB 	Order 	No.
Ad-122-S. 	Two 	criteria 	must 	be 	met. 	First, 	it 	is 	necessary
that 	tolling 	in 	the 	particular 	instance 	not 	frustrate
12
where a collectively negotiated agreement provides for binding
arbitration will the statute of limitations be tolled during
the efforts of the parties to resolve their differences through
the grievance machinery.
The contract between the District and Association in this
case provides merely for advisory arbitration. As a
consequence, the period is not statutorily tolled during the
time the Association sought relief through the grievance
machinery.
The California courts have enunciated an equitable tolling
doctrine. Elkins v. Derby (1974) 12 C. 3d 410 [115 Cal. Rptr.
641] ; Myers v. County of Orange (1970) 6 Cal. App. 3d 626
[86 Cal. Rptr. 198]. PERB adopted this doctrine in State of
California, Department of Water Resources; State of California,
Department of Developmental Services (12/29/81) PERB Order No.
Ad-122-S. Two criteria must be met. First, it is necessary
that tolling in the particular instance not frustrate
binding arbitration. . 	If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
shall dismiss the charge. 	The board shall,
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.
(Emphasis added. )
12

achievement 	of 	the 	purpose 	underlying 	the 	statute 	of
limitations:
That 	purpose 	.•. 	is 	to 	[prevent] 	surprises
through 	the 	revival 	of 	claims 	that 	have 	been
allowed 	to 	slumber 	until 	evidence 	has 	been
lost, 	memories 	have 	faded, 	and 	witnesses
have 	disappeared. 	(cases 	cited) 	Elkins 	v.
Der by, 	ss upra, 	12 	C. 3d 	at 	p. 	417 .
Second, 	if 	the 	notification 	purpose 	described 	in 	the 	quotation
above 	is 	met, 	the 	responding 	party 	thereby 	not 	being 	prejudiced,
[t]he 	running 	of 	the 	limitations 	period 	is
tolled 	"[w]hen 	an 	injured 	person 	has 	several
legal 	remedies 	and 	reasonably 	and 	in 	good
faith, 	pursues 	one." 	Myer~ 	v. 	~gun:st~!
Oran~e 	(1970) 	6 	Cal.App.626, 	634 	[86
Cal.Rptr. 	198] ... 	(and 	other 	cases 	cited)
Elkins 	v. 	Derby, 	supr~, 	12 	C.3d 	at 	p. 	414.
The 	notification 	purpose 	was 	met 	when 	the 	Association, 	in
the 	fall 	of 	1977, 	filed 	its 	first 	grievance 	concerning 	the
District's 	alleged 	modification of 	the 	contract's 	preparation
period 	policy: 	the 	District 	was 	thereby 	apprised 	within 	six
months 	of 	the 	Association's 	claim. 	The 	Board, 	applying 	the
equitable 	tolling 	doctrine, 	therefore 	could 	toll 	the
limitations 	period 	during 	the 	Association's 	first 	effort 	to
resolve 	the 	dispute 	through 	the 	grievance 	route. 	The
limitations 	period, 	as 	a 	consequence, 	would 	not 	run 	until 	after
it 	became 	clear 	that 	the 	possibility 	of 	a 	remedy 	via 	such 	an
avenue 	was 	foreclosed. 	Here, 	the 	route 	proved 	unsuccessful 	on
June 	22, 	1978 	when 	the 	District's 	school 	board 	refused 	to
accept 	the 	arbitrator's 	advisory 	award. 	The 	Association,
however, 	failed 	to 	file 	its 	unfair 	practice 	charge 	with 	the
13
achievement of the purpose underlying the statute of
limitations :
That purpose . 	. . is to [prevent] surprises
through the revival of claims that have been
allowed to slumber until evidence has been
lost, memories have faded, and witnesses
have disappeared. (cases cited) 	Elkins v.
Derby, supra, 12 C. 3d at p. 417.
Second, if the notification purpose described in the quotation
above is met, the responding party thereby not being prejudiced,
[t]he running of the limitations period is
tolled "[wjhen an injured person has several
legal remedies and reasonably and in good
faith, pursues one. " 	Myers v. County of
Orange (1970) 6 Cal. App. 626 , 634 [86
Cal. Rptr. 198]. . . (and other cases cited)
Elkins v. Derby, supra, 12 C. 3d at p. 414.
The notification purpose was met when the Association, in
the fall of 1977, filed its first grievance concerning the
District's alleged modification of the contract's preparation
period policy: the District was thereby apprised within six
months of the Association's claim. The Board, applying the
equitable tolling doctrine, therefore could toll the
limitations period during the Association's first effort to
resolve the dispute through the grievance route. 	The
limitations period, as a consequence, would not run until after
it became clear that the possibility of a remedy via such an
avenue was foreclosed. Here, the route proved unsuccessful on
June 22, 1978 when the District's school board refused to
accept the arbitrator's advisory award. The Association,
however, failed to file its unfair practice charge with the
13

PERB
	within
	six
	months
	from
	that 	date.
	PERB
	did
	not
	receive
the
	charge
	until
	May
	23, 	1979.
Nor
	did
	measures
	undertaken
	by
	the
	Association
	subsequent
to
	its
	filing
	of
	the
	first
	grievance
	satisfy
	the
	second
criterion.
	There
	is
	nothing 	in 	the 	record
	to
	justify,
	as
reasonable
	and
	in
	good
	faith,
	the
	Association
1 s
	filing
	of
	an
identical
	grievance 	the 	following
	year.
	It
	was
	filed
	in
September 	1978,
	three
	months
	after
	the
	District
	rejected
	the
first.
	Similarly,
	there
	is
	nothing 	in 	the 	record
	to
	justify
	a
conclusion
	that
	the
	Association's 	court 	action,
	first
	pursued
on
	January
	8,
	1979,
	represented
	a
	reasonable
	and 	good
	faith
pursuit
	of
	an
	alternate
	remedy.
	Also, 	there
	is
	no
	explanation
for
	the
	long
	period 	of
	time
	in
	which
	the 	Association
	sat
	on
	its
rights
	before 	pursuing 	the
	judicial
	avenue
	of
	recovery
	and
finally 	filed
	an
	unfair
	practice
	charge 	with
	the
	Board.7
Before
	this
	Board
	is 	willing
	to
	relieve	
a	
charging
	party
	from
the
	effects
	of
	the
	statute
	of
	limitation,
	there
	should	
be
indication
	in
	the 	record
	that
	the
	alternative
	chosen
represented
	a
	practical 	effort
	to 	resolve
	this
	dispute
expeditiously.
7	
7In Myers,
	the 	court 	indicated
	its
	willin9ness 	to
	toll
the
	s
tatu
teof
	limitations
	during
	a
	court 	action, 	including
time 	consumed 	in
	an	
appeal,	
if
	it	
is 	integral
	to
	a	
reasonable
and 	good	
faith 	pursuit 	of	
an
	alternate
	remedy.
	-~ers
	v.	
County
of
	Orange, 	supr~,	
6	
Cal.App.3d
	at
	p. 	634.
14
PERB within six months from that date. PERB did not receive
the charge until May 23, 1979.
Nor did measures undertaken by the Association subsequent
to its filing of the first grievance satisfy the second
criterion. There is nothing in the record to justify, as
reasonable and in good faith, the Association's filing of an
identical grievance the following year. It was filed in
September 1978, three months after the District rejected the
first. Similarly, there is nothing in the record to justify a
conclusion that the Association's court action, first pursued
on January 8, 1979, represented a reasonable and good faith
pursuit of an alternate remedy. Also, there is no explanation
for the long period of time in which the Association sat on its
rights before pursuing the judicial avenue of recovery and
finally filed an unfair practice charge with the Board. 7
Before this Board is willing to relieve a charging party from
the effects of the statute of limitation, there should be
indication in the record that the alternative chosen
represented a practical effort to resolve this dispute
expeditiously.
In Myers, the court indicated its willingness to toll
the statute of limitations during a court action, including
time consumed in an appeal, if it is integral to a reasonable
and good faith pursuit of an alternate remedy. Myers v. County
of Orange, supra, 6 Cal.App. 3d at p. 634.
14

Finally, 	we 	address 	the 	issue 	of 	whether 	the 	District
should 	be 	estopped 	from 	asserting 	the 	EERA 	statute 	of
limitations 	as 	a 	defense 	since 	the 	District 	had 	contended 	in
Superior 	Court 	that 	the 	Association's 	complaint 	should 	have
been 	before 	PERB. 	The 	equitable 	doctrine 	of 	estoppel 	has 	been
applied 	to 	deprive 	a 	defendant 	of 	the 	statute 	of 	limitations
defense 	because 	of 	his 	own 	objectionable 	conduct. 	However,
estoppel 	is 	applied 	in 	situations 	where 	the 	claimant 	has
relied, 	to 	his/her 	detriment, 	on 	the 	representations 	or 	conduct
of 	the 	other 	party. 	Wooq 	v. 	Blaney 	(1895) 	107 	Cal. 	291;
Carruth 	v. 	Fritch 	(1950) 	36 	Cal.2d 	426, 	433; 	Lerner 	v. 	Los
Angeles 	City Board 	(1963) 	59 	Cal.2d 	382, 	396. 	(See 	generally
Witkin, 	Summary 	of 	California Law, 	Equity 	p. 	5351 	and 	Witkin,
California Procedure 	2d, 	p. 	1226-1227.)
In 	the 	present 	case, 	the 	Association 	has 	not 	alleged 	that
it 	relied 	upon 	the 	position 	which 	the 	District 	made 	to 	the
Superior 	Court, 	or 	indeed 	that 	the 	District made 	any
representation 	at 	all 	to 	the 	Association. 	The 	District's 	legal
arguments 	were 	addressed 	to 	the 	Superior 	Court. 	As 	such, 	these
arguments 	were 	intended 	to 	persuade 	the 	Court 	to 	decide
favorably 	to 	the 	District 	rather 	than 	to 	influence 	the
Association 1 s 	actions. 	It 	was 	the 	Court, 	not 	the 	District,
which 	ruled 	that 	the 	complaint 	was 	not 	properly 	before 	it; 	the
District's 	role 	in 	the 	matter 	was 	to 	advocate 	a 	legal 	argument
before 	the 	Court. 	Under 	these 	circumstances, 	we 	do 	not 	find 	it
15
Finally, we address the issue of whether the District
should be estopped from asserting the EERA statute of
limitations as a defense since the District had contended in
Superior Court that the Association's complaint should have
been before PERB. The equitable doctrine of estoppel has been
applied to deprive a defendant of the statute of limitations
defense because of his own objectionable conduct. However,
estoppel is applied in situations where the claimant has
relied, to his/her detriment, on the representations or conduct
of the other party. Wood v. Blaney (1895) 107 Cal. 291;
Carruth v. Fritch (1950) 36 Cal. 2d 426, 433; Lerner v. Los
Angeles City Board (1963) 59 Cal. 2d 382, 396. (See generally
Witkin, Summary of California Law, Equity p. 5351 and Witkin,
California Procedure 2d, p. 1226-1227.)
In the present case, the Association has not alleged that
it relied upon the position which the District made to the
Superior Court, or indeed that the District made any
representation at all to the Association. 	The District's legal
arguments were addressed to the Superior Court. As such, these
arguments were intended to persuade the Court to decide
favorably to the District rather than to influence the
Association's actions. It was the Court, not the District,
which ruled that the complaint was not properly before it; the
District's role in the matter was to advocate a legal argument
before the Court. Under these circumstances, we do not find it
15

would
	be
	appropriate
	to 	prevent
	the
	District
	from
	raising
section
	3541.5
	as
	a
	defense 	to
	the
	charges.
ORDER	
ORDER
Based
	upon
	the 	foregoing
	discussion,
	conclusions
	of
	law
	and
the
	entire
	record
	in
	this
	matter,
	the 	charges
	filed
	by
	the
San
	Dieguito 	Faculty Association 	against
	the
	San
	Dieguito
	Union
High
	School
	District
	are
	hereby
	DISMISSED.
By
:''i-rene 	Tovar,
	Member 	John Jaeger , Member
Barbara D. Moore, Member
Johrw..taeger,
	Member
Barb~ra
,D. Moore, Member
16
would be appropriate to prevent the District from raising
section 3541.5 as a defense to the charges.
Based upon the foregoing discussion, conclusions of law and
the entire record in this matter, the charges filed by the
San Diegueto Faculty Association against the San Diegueto Union
High School District are hereby DISMISSED.
By : Irene Tovar, Member
16