Poway Unified School District (PERB 0350E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

POWAY FEDERATION OF TEACHERS,
LOCAL 2357, CFT/AFT, AFL~CIO,

Charging Party, Case No. LA-CE-1478

Ve PERB Decision No. 350
POWAY UNIFIED SCHOOL DISTRICT, October 12, 1983

Respondent,

ee ee ee ee ee ee ee et eet et

Appearances: James M. Gattey, Attorney for Poway Federation of
Teachers, Local 2357, CFT/AFT, AFL-CIO; Clifford D. Weiler,
Attorney (Brown and Conradi) for Poway Unified School District.

Before Jaeger, Morgenstern and Burt, Members.
DECISION

MORGENSTERN, Member: This case is before the Public
Employment Relations Board (PERB or Board) on exceptions filed
by the Poway Federation of Teachers, Local 2357, CFT/AFT,
AFL-CIO (PFT or Federation) to the hearing officer's proposed
decision finding that the Federation's unfair practice charge
against the Poway Unified School District (District) was
untimely filed in light of subsection 3541.5(a) of the

Educational Employment Relations Act (EERA).1

IFERA is codified at Government Code section 3540
et seq. All statutory references are to the Government Code
unless otherwise specified.

Subsection 3541.5(a) provides:

(a) Any employee, employee organization, or
employer shall have the right to file an

Specifically, 	the 	hearing 	officer 	found 	that 	PFT's 	efforts
to 	resolve 	a 	dispute 	concerning 	sick 	leave 	through 	the
contractual 	grievance 	procedure 	did 	not 	toll 	the 	statutory 	time
limits 	because 	it 	did 	not 	culminate 	in 	binding 	arbitration. 	He
also 	found 	that 	the.equitable 	tolling 	doctrine 	could 	not 	be
invoked 	to 	toll 	the 	statute 	because 	the 	informal 	grievance
discussions 	were 	aimed 	solely 	at 	the 	District's 	failure 	to
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	o~ 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 	charge1 	(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 	binding 	arbitration.
However, 	when 	the 	charging 	party
demonstrates 	that 	resort 	to 	contract
grievance 	procedure 	would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary. 	The
board 	shall 	have 	discretionary 	jurisdiction
to 	review 	such 	settlement 	or 	arbitration
award 	reached 	pursuant 	to 	the 	grievance
machinery 	solely 	for 	the 	purpose 	of
determining 	whether 	it 	is 	repugnant 	to 	the
purposes 	of 	this 	chapter. 	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 	merits1 	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.
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provide 	adequate 	notice 	of 	the 	change. 	Finding 	that 	the 	issue
in 	the 	instant 	unfair 	practice 	charge 	concerned 	the 	underlying
unilateral 	policy 	change 	itself, 	he 	concluded 	that 	PFT's
settlement 	efforts 	to 	resolve 	the 	notice 	issue 	should 	not 	toll
the 	statute 	of 	limitations 	regarding 	the 	charge.
In 	the 	instant 	case, 	PFT argues 	that 	subsection
3541.S(a) (2) 	should 	be 	read 	to 	toll 	the 	time 	limitation 	when 	a
party 	seeks 	to 	utilize 	any 	grievance 	procedure, 	whether 	or 	not
it 	culminates 	in 	binding 	arbitration. 	It 	also 	contests 	the
factual 	conclusion 	that 	the 	subject 	matter 	of 	the 	grievance 	for
which 	the 	District 	agreed 	to 	waive 	time 	limits 	was 	the 	lack 	of
sufficient 	notification 	of 	the 	policy 	change 	rather 	than 	a
dispute 	centered 	on 	the 	unilateral 	sick 	leave 	policy 	change
itself. 	PFT 	argues 	that, 	with 	this 	factual 	error 	corrected,
the 	statute 	of 	limitations 	should 	have 	been 	tolled 	from
July 	1981, 	when 	the 	District 	agreed 	to 	waive 	the 	grievance 	time
limits, 	until 	September 	1981, 	when 	PFT determined 	that 	it 	would
pursue 	the 	matter 	as 	an 	unfair 	practice 	charge 	rather 	than 	as 	a
grievance.
FACTS
The 	Board 	has 	carefully 	reviewed 	the 	factual 	record 	and
finds 	that 	the 	hearing 	officer's 	findings 	of 	fact, 	as 	set 	forth
in 	his 	proposed 	decision 	attached 	hereto, 	are 	free 	of
prejudicial 	error. 	We 	thus 	adopt 	them 	as 	the 	findings 	of 	the
Board 	itself.
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DISCUSSION
In San Dieguito Union High 	School 	District 	(2/25/82) 	PERB
Decision No. 	194, 	the 	Board 	concluded 	that EERA's 	statutory
tolling 	provision 	only 	applies 	where 	a 	collectively 	negotiated
agreement 	provides 	for 	binding 	arbitration. 	Noting 	that 	the
parties' 	contractual 	grievance 	procedure 	culminates 	with 	an
appeal 	to~he 	District 	board 	of 	education 	rather 	than 	with
binding 	arbitration, 	the. hearing 	officer 	correctly 	concluded
that 	any 	efforts 	PFT 	undertook 	through 	the 	grievance 	procedure
did 	not 	toll 	the 	statutory time 	limits.
The 	hearing 	officer's 	rejection 	of PFT's 	equitable 	tolling
argument 	was 	likewise 	appropriate.2
The 	hearing 	officer's 	analysis 	rests 	on 	a 	bifurcation 	of
issues 	and 	his 	finding 	that 	the 	grievance 	was 	limited 	to 	the
2aorrowed 	from 	the 	decisions 	of 	the 	California 	courts
(Elkins 	v. 	Derby. (1974) 	12 	C.3d 	410: 	Meyers 	v. 	County 	of 	Orange
(1970) 	6 Cal.App.3d 	626), 	the 	equitable 	tolling 	doctrine 	tolls
the 	statute 	of 	limitations 	where 	a 	party 	having 	two 	alternative
methods 	of 	relief 	available 	for 	a 	single 	injury 	pursues 	one 	in
good 	faith. 	The 	doctrine 	requires 	the 	satisfaction 	of 	two
conditions. 	First, 	tolling 	must 	not 	frustrate 	the 	purpose 	of
statutory 	limitation 	provisions 	which 	is 	to 	prevent 	surprises
through 	the 	revival 	of 	old 	claims 	where 	evidence 	has 	been 	lost,
memories 	faded 	and 	witnesses 	disappeared. 	The 	second
. requirement 	is 	that 	the 	tolling 	period 	reflect 	the 	time 	during
which 	the 	injured 	party 	reasonably 	and 	in 	good 	faith 	pursued 	a
legal 	remedy.
See 	State 	of 	California, 	Department 	of Water 	Resources 	and
Department 	of 	Developmental Services 	(12/29/81) 	PERB 	Order 	No.
Ad-122-S: 	State 	of 	California 	(Department 	of 	Health 	Services)
(12/22/82) 	PERB 	Decision No. 	269-S: 	and Victor 	Valley Joint
Union High 	School 	District 	(12/29/82) 	PERB 	Decision No. 	273.
4

UT
inadequate 	notice 	issue. 	This 	conclusion 	is 	amply 	supported 	by
the 	evidentiary 	record. 	Indeed, 	the 	agreement 	between
Charles 	Ward, 	assistant 	superintendent 	of 	the 	District, 	and
Donald 	Raczka, 	president 	of 	PFT, 	to 	waive 	the 	grievance 	time
limits 	was 	reached 	for 	the 	purpose 	of 	providing 	Ward 	with 	the
time 	to 	contact 	the 	school 	principals 	and 	to 	inquire 	as 	to 	the
notice 	provided. 	Since 	this 	confined 	the 	District's
evidentiary 	inquiry 	to 	the 	notice 	issue, 	we 	can 	reasonably
conclude 	that 	the 	District 	would 	have 	been 	unfairly 	surprised
by 	PFT's 	subsequent 	complaint 	that 	the 	District 	had 	failed 	to
provide 	PFT with 	an 	opportunity 	to 	discuss 	the 	sick 	leave
policy 	prior 	to 	unilaterally 	altering 	it.
ORDER
Based 	on 	the 	foregoing 	discussion, 	conclusions 	of 	law 	and
the 	entire 	record 	in 	this 	matter, 	the 	unfair 	practice 	charge
filed 	by 	the 	Poway 	Federation of 	Teachers 	against 	the 	Poway
Unified 	School 	District 	is 	hereby 	DISMISSED.
Members 	Jaeger 	and 	Burt 	joined 	in 	this 	Decision.
5

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
POWAY 	FEDERATION OF TEACHERS,
LOCAL 	2357, 	CFT/AFT, 	AFL-CIO,
Charging 	Party,
v.
POWAY UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Unfair 	Practice
Case 	No. 	LA-CE-1478
PROPOSED DECISION
(11/8/82)
__________________ )
Ap~earances: 	Clifford 	D. 	Weiler 	(Brown 	and 	Conradi) 	for 	Poway
Unified 	School District, 	and 	James M. 	Gattey 	for 	Poway
Federation 	of 	Teachers, 	Local 	2357, 	CFT/AFT, 	AFL-CIO.
Before: 	James w. 	Tamm, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On 	November 	16, 	1981 	the 	Poway 	Federation 	of 	Teachers,
Local 	2357, 	CFT/AFT, 	AFL-CIO 	(hereafter 	charging 	party 	or
Federation) 	filed 	this 	unfair 	practice 	charge 	against 	the 	Poway
Unified 	School 	District 	(hereafter 	District). 	The 	charge
alleged 	violations 	of 	sections 	3543.5(b) 	and 	(c) 	of 	the
Educational Employment 	Relations 	Act 	(hereafter 	EERA or 	Act).l
lThe EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified. 	Sections 	3543.S(b) 	and 	(c) 	state:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(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.

An 	informal 	settlement 	conference 	was 	held 	with 	an 	agent 	of
the 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board)
on 	January 	29, 	1982. 	However, 	the 	matter 	remained 	unresolved.
A pre-hearing 	conference 	was 	held 	on 	June 	21, 	1982, 	followed 	by
a 	formal 	hearing 	on 	June 	22 	and 	23, 	1982. 	A transcript was
prepared 	and 	briefs 	were 	filed. 	The 	case 	was 	then 	submitted
for 	decision 	on August 	23, 	1982.
FINDINGS OF 	FACT
On 	December 	8, 	1980, 	a 	change 	in 	the 	sick 	leave 	policy 	was
presented 	to 	the 	school 	board 	for 	information 	and 	input 	before
adoption. 	The 	change 	was 	submitted 	by 	Charles 	Ward, 	assistant
superintendent 	for 	personnel. 	A representative 	of 	the 	charging
party, 	Donald 	Raczka, 	informed 	the 	school board 	that 	the 	policy
would 	change 	the 	terms 	of 	the 	collective 	bargaining 	agreement
and 	would 	therefore 	require 	agreement 	of 	the 	charging 	party.
No 	action 	was 	taken 	by 	the 	school 	board 	at 	that 	time.
On 	Janu~ry 	20, 	1981, 	representatives 	of 	the 	charging 	party
met 	with Ward 	to discuss 	the 	changes. 	Several 	items 	of 	the
proposed 	changes 	were 	discussed 	and 	mutually 	agreed 	upon. 	One
item 	that 	was 	not 	agreed 	upon 	was 	EXTENDED 	SICK 	LEAVE. 	The
proposed 	change 	added 	a 	requirement 	that 	to 	qualify 	for
extended 	sick 	leave, 	the 	employees 	must 	supply 	a 	doctor's
certificate 	of 	illness 	beginning 	the 	first 	day 	of 	extended 	sick
leave.
2

W
On 	February 	3, 	1981, 	William Chiment, 	then 	president of 	the
Federation, 	wrote 	to 	Assistant 	Superintendent Ward, 	asking 	for
information 	on 	teachers 	affected. 	The 	letter 	also 	stated 	that
he 	had 	discussed 	the 	matter 	with 	counsel 	and 	that, 	if 	the
changes 	were 	adopted 	Chiment 	would 	communicate 	it 	to 	the 	unit
members, 	advising 	them 	it 	may 	not 	be 	a 	reasonable 	regulation
under 	the 	Education 	Code 	and may 	be 	inconsistent with 	the
collective 	bargaining 	agreement. 	Chiment 	also 	stated 	he 	felt
the 	appropriate 	time 	for 	such 	a 	determination 	would 	be 	when 	a
conflict 	arose 	from 	the 	implementation 	of 	the 	policy.
On 	February 	19, 	1981, 	Ward 	wrote 	to 	Chiment, 	providing 	the
requested 	information 	and 	indicating 	that 	he 	was 	not 	certain 	as
to 	the 	meaning 	of 	some 	of 	Chiment's previous 	statements. 	Ward
stated 	he 	would 	like 	to 	discuss 	the 	matter 	with 	Chiment 	and
asked 	Chiment 	to 	call him 	to 	schedule 	a 	meeting. 	It 	is 	unclear
whether 	such 	a 	meeting 	ever 	took 	place.
On 	March 	9, 	1981, 	the 	revised 	sick 	leave 	policy 	was 	once
again 	submitted 	to 	the 	school 	board. 	The 	letter 	of 	transmittal
to 	the 	school board 	noted 	that 	the 	charging 	party 	was 	not 	in
total agreement 	with 	the 	policy 	as 	proposed. 	The 	charging
party's 	letter 	of 	February 	3 	was 	also 	attached 	to 	the 	policy
for 	the 	school 	board's 	review. 	In 	spite 	of 	the 	charging
party's 	opposition, 	the 	school 	board 	did 	adopt 	the 	policy 	as
recommended 	by 	Assistant 	Superintendent Ward.
3

A representative 	of 	the 	charging 	party 	was 	at 	the 	school
board 	meeting 	and 	had 	noticed 	that 	the 	action 	took 	place. 	The
charging 	party 	also 	regularly 	receives 	school 	board 	agendas 	and
minutes 	which 	would 	have 	indicated 	the 	policy 	had 	been 	adopted.
During 	March 	1981 	the 	president 	of 	the 	Federation discussed
the 	changed 	policy 	with 	several 	teachers 	within 	the 	District.
At 	a 	union 	executive 	board 	meeting 	on April 	6, 	1981, 	the
president 	advised 	the 	executive 	board 	that 	he 	had 	spoken with
counsel 	and 	that 	the 	changes 	were 	probably 	an 	unfair 	labor
practice.
On 	April 	10, 	1981, 	notice 	of 	the 	policy 	change 	was 	sent 	by
District 	administration 	to 	all 	school principals 	to 	be 	posted
on 	official 	bulletin 	boards. 	The 	notice 	was 	addressed 	to 	"all
personnel" 	and 	included 	a 	statement 	that,
THIS 	POLICY WILL 	BE 	IMPLEMENTED ON APRIL 	20,
1981 	(emphasis 	in 	original).
April 	20, 	1981, 	was 	also 	the 	first 	day 	a 	unit 	member 	was
absent 	and 	thereafter 	did 	not 	receive 	full 	pay 	because 	of 	the
policy 	change.
By 	either 	April 	20 	or 	21, 	notice 	of 	the 	policy 	changes 	were
posted 	on official 	bulletin 	boards 	throughout 	most 	of 	the
District. 	There 	was 	testimony 	that 	at 	one 	school 	the 	posting
may 	not 	have 	been 	conspicuous 	because 	of 	a 	messy 	bulletin
board, 	and 	that 	some 	teachers 	were 	not 	aware 	of 	the 	changes.
At 	a 	few 	locations 	the 	changes 	were 	also discussed 	in 	faculty
meetings 	and/or 	noted 	in 	weekly 	staff 	bulletins.
4

On 	June 	18, 	1981, 	Raczka, 	who 	by 	that 	time 	had 	become
president 	of 	the 	Federation, 	first 	learned 	that 	two 	unit
members 	had 	not 	been 	paid 	for 	sick 	leave 	taken 	in May because
they 	had 	not 	provided 	medical 	verification 	as 	required 	by 	the
policy 	change.
The 	collective 	bargaining 	agreement 	calls 	for 	informal
discussions 	with 	the 	immediate 	supervisor, 	if 	appropriate, 	as
the 	first 	step 	of 	the 	grievance 	procedure. 	On 	July 	13, 	1981
Raczka 	met 	with Ward 	to discuss 	a 	potential grievance. 	At 	that
meeting, 	Raczka 	indicated 	he 	felt 	the 	meeting 	would 	serve 	as
the 	informal 	level 	(or 	first 	step) 	of 	the 	grievance 	procedure.
He 	stated 	that 	the 	teachers 	who 	had 	been 	docked 	pay 	were
unaware 	of 	the 	policy 	change. 	Raczka 	indicated 	that 	he 	had 	no
problem 	with 	the 	change 	itself, 	but 	that 	the 	lack 	of
notification 	to 	teachers 	was 	what 	bothered him. 	Both 	Raczka
and 	Ward 	indicated 	surprise 	that 	the 	teachers 	in question 	had
not 	been 	notified 	of 	the 	changes 	at 	teacher 	meetings. 	Ward
indicated 	he 	wanted 	to 	check 	out 	the 	procedure 	used 	to 	notify
teachers, 	but 	that 	he 	would 	need 	more 	time 	because 	the
principals 	were 	on 	vacation. 	Ward 	agreed 	to 	waive 	any 	time
lines 	for 	filing 	a 	grievance 	if 	Raczka 	would 	give 	him extra
time 	to 	talk 	to 	the 	principals. 	From 	testimony of 	both 	Raczka
and Ward, 	as 	well 	as 	notes 	taken 	by 	Raczka, 	it 	is 	clear 	that
the 	subject 	matter 	of 	any 	potential grievance 	for 	which 	the
District 	was 	waiving 	the 	time 	lines 	was 	the 	lack 	of 	uniform
5

notification 	to 	teachers, 	and 	not 	the 	underlying 	unilateral
change 	in 	sickleave 	policy.
Following 	the 	July 	13 	meeting 	between Ward 	and 	Raczka,
Raczka 	corresponded 	with 	charging 	party's 	counsel 	and 	was 	told
that 	there 	was 	probably 	no 	violation 	of 	the 	collective
bargaining 	agreement, 	but 	that 	the 	District's 	action 	in
unilaterally 	modifying 	the 	policy 	constituted 	an 	unfair 	labor
practice.
On 	September 	9, 	1981, 	Raczka 	again met 	with Ward 	and
indicated 	he 	had 	sought 	advice 	from 	counsel 	and 	that 	charging
party 	was 	now 	talking 	about 	an 	unfair 	labor 	practice, 	rather
than 	a 	grievance. 	The 	record 	does 	not 	indicate 	any 	further
meetings were 	held 	on 	this 	issue. 	No 	final 	grievance 	was 	ever
filed. 	This 	unfair 	practice 	charge 	was 	filed 	on
November 	16, 	1981.
ISSUE
Was 	this 	charge 	filed 	within 	the 	statute 	of 	limitations
period 	provided 	for 	in 	the 	EERA?
ARGUMENTS OF 	THE 	PARTIES
Charging 	party 	argues 	that 	the 	District 	has 	violated 	the
Act 	by 	adopting 	and 	implementing 	the 	new policy 	regarding
extended 	sickleave 	without 	first 	giving 	charging 	party 	an
opportunity 	to 	meet 	and 	negotiate. 	It 	further 	argues 	that
informal grievance 	discussions 	should 	toll 	the 	statute 	of
limitations.
6

The 	District 	puts 	forth 	no 	argument 	regarding 	the
unilateral 	nature 	of 	the 	policy 	change. 	It 	restricts 	its
arguments 	to 	the 	statute 	of 	limitations 	issue.
DISCUSSION AND 	CONCLUSIONS OF LAW
In 	order 	to 	find 	any 	violation, 	this 	charge must 	have 	been
filed 	in 	a 	timely 	manner. 	Section 	3541.S(a) 	provides 	that,
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 	the
agreement, 	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 	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.
The 	extended 	sickleave 	policy 	was 	changed 	by 	the 	District
on 	March 	9, 	1981 	and 	implemented 	on 	April 	20, 	1981. 	The
charging 	party 	was present 	at 	the 	board 	meeting 	when 	the 	action
was 	taken, 	and 	also 	received 	copies 	of 	the 	board 	agendas 	and
minutes. 	Notice of 	implementation of 	the 	change 	was 	posted
throughout 	most 	of 	the 	District 	on 	or 	before 	April 	20, 	1981.
Although 	some 	individual 	teachers may 	not 	have 	seen 	the 	notice
or 	been 	aware 	of 	the 	change 	for 	whatever 	reasons, 	there 	was 	no
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doubt 	that 	charging 	party 	had 	notice 	of 	the 	change 	as 	of
March 	9, 	1981, 	and 	of 	its 	implementation 	as 	of 	April 	20, 	1981.
The 	parties offered 	much 	argument 	about 	which 	of 	the 	two
dates 	should 	be 	used 	to 	calculate 	the 	statute 	of 	limitations.
However, 	using 	either 	the 	date 	of 	adoption 	or 	the 	date 	of
implementation, 	over 	six 	months 	would 	have 	elapsed 	between 	the
District's 	action 	and 	the 	filing 	of 	the 	unfair 	practice
charge. 	However, 	the 	charge 	may 	still 	be 	considered 	timely
filed 	if 	the 	alleged 	violation 	is 	a 	continuing 	one, 	or 	if 	the
limitation 	period 	was 	tolled 	while 	the 	Federation 	was
diligently 	and 	reasonably 	pursuing 	alternative 	procedures 	for
obtaining 	relief.
In 	San 	Dieguito 	Union High 	School District 	(2/25/82) 	PERB
Decision 	No. 	194, 	the 	Board 	held 	that 	a 	similar 	factual
situation 	was 	not 	a 	continuing 	violation. 	In 	that 	case 	the
District allegedly 	implemented 	a 	new 	sign-out 	policy. 	The
charging 	party 	asserted 	that 	because 	the 	sign-out 	policy
continued 	in effect 	it 	should 	not 	be 	time-barred. 	This 	case 	is
similar 	in 	that 	the 	policy 	has 	remained 	in 	place, 	affecting
teachers 	on 	a 	daily 	basis, 	and 	has 	not 	been 	changed 	since 	its
original adoption 	and 	implementation. 	Following 	San 	Dieguito,
the 	facts 	in 	this 	case 	are 	also 	found 	not 	to 	be 	a 	continuing
violation.
In 	San 	Dieguito, 	the Board 	also 	held 	the 	statute 	of
limitations 	could 	be 	tolled 	under 	either 	of 	two 	circumstances.
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The 	first 	is 	the 	statutory provisions 	of 	section 	3541.S(a) (2),
which 	provide 	for 	tolling 	during 	efforts 	of 	the 	parties 	to
resolve 	their 	differences 	through 	a 	collective 	negotiated
grievance 	procedure 	culminating 	in 	binding 	arbitration. 	The
second 	possibility 	for 	tolling 	is 	the 	doctrine 	of 	equitable
tolling 	established 	by 	the 	California 	courts 	in Elkins 	v. 	Derby
(1974) 	12 Cal.3d 	410 	[115 Cal.Rptr. 	641] 	and 	Myers 	v. 	County of
Orange 	(1970) 	6 Cal.App.3d 	626 	[86 	Cal.Rptr. 	198]. 	This
doctrine 	was 	adopted 	by 	the 	PERB 	in 	State of 	California,
Department 	of Water 	Resources; 	State 	of 	California, 	Department
of 	Developmental 	Services 	(12/29/81) 	PERB 	Order 	No. 	Ad-122-S.
Essentially 	the 	doctrine 	holds 	that 	where 	a 	party 	has 	two
alternative methods 	for 	obtaining 	relief 	for 	a 	single 	injury
and 	pursues 	one 	in 	good 	faith, 	the 	statute 	of 	limitations 	is
tolled 	for 	the 	second.
Charging 	party 	argues 	that 	efforts 	aimed 	at 	settling 	its
potential grievance 	from 	July 	13 	through 	September 	9 	should
toll 	the 	statute 	of 	limitations 	under 	either 	or 	both 	reasons.
The 	co,ntract 	between 	the 	Federation 	and 	the 	District 	in
this 	case 	provides 	an 	appeal 	to 	the 	District Board 	of Education
as 	the 	final 	step of 	the 	grievance 	procedure, 	rather 	than
binding 	arbitration. 	Therefore, 	the 	time 	during 	which 	the
Federation 	sought 	relief 	through 	the 	grievance 	procedure 	is 	not
statutorily 	tolled 	under 	section 	3541.S(a) (2).
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The 	statute 	of 	limitations 	should 	also 	not 	be 	tolled 	under
the 	doctrine 	of 	equitable 	tolling. 	As 	stated 	in San 	Dieguito,
Before 	this 	Board 	is 	willing 	to 	relieve 	a
charging 	party 	from 	the 	effects 	of 	the
statute of 	limitations, 	there 	should 	be
indication 	in 	the 	record 	that 	the
alternative 	chosen 	represented 	a 	practical
effort 	to 	resolve 	this 	dispute 	expeditiously.
Even 	if 	the 	Federation's 	efforts 	were 	found 	to 	be 	the 	type
envisioned 	by 	the 	courts 	and 	PERB, 	those 	efforts 	were 	aimed 	at
an 	issue distinctly different 	from 	the 	issue 	in 	this 	unfair
practice charge. 	The 	informal grievance 	discussions 	between
Raczka 	and Ward 	were 	all aimed 	at 	remedying 	any 	failure 	in
uniform 	notification 	of 	teachers. 	This 	is 	supported 	by
testimony of 	both Ward 	and 	Raczka 	as 	well 	as 	notes 	of
Raczka's. 	Furthermore, 	when Ward 	gave 	the 	Federation 	an
extension of 	time 	to 	file 	a 	grievance, 	it 	was 	done 	so 	to 	enable
Ward 	to 	contact 	principals 	about 	the 	posting 	of 	notices 	at
various 	schools. 	If 	a 	grievance 	had 	been 	filed 	it 	would 	have
been 	based 	upon 	the 	failure 	of 	principals 	to 	give 	adequate
notice 	to 	teachers.
This 	unfair 	practice 	charge, 	on 	the 	other 	hand, 	is
necessarily 	based 	upon 	the 	District's 	underlying 	unilateral
action 	and 	not 	the 	method 	of 	notifying 	individual 	teachers. 	It
is 	uncontested 	that 	the 	charging 	party 	had 	notice 	of 	the 	change
at 	the 	time 	it 	was 	adopted 	and 	implemented. 	Settlement efforts
regarding 	an 	issue 	distinctly different 	from 	the 	issue 	in 	this
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unfair 	practice 	charge 	should 	not 	therefore 	toll 	the 	statute of
limitations.
Because 	the 	charge 	is 	found 	to 	be 	untimely 	it 	is 	not
necessary 	to discuss 	whether 	the 	District's 	actions 	would 	have
violated 	sections 	3543.S(b) 	and 	(c).
CONCLUSIONS
Because 	the 	charging 	party 	has 	not 	shown 	this 	case 	was
filed 	within 	the 	statute 	of 	limitations provided 	in 	the 	EERA,
the 	complaint 	shall 	be 	dismissed 	as 	untimely.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law 	and 	the 	entire 	record 	in 	this 	matter, 	the 	unfair
practice charge 	filed 	by Poway 	Federation 	of 	Teacher·s,
Local 	2357, 	CFT/AFT, 	AFL-CIO 	against 	the 	Poway 	Unified 	School
District 	and 	the 	related 	Public 	Employment Relations 	Board's
complaint 	are 	hereby 	DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on ·November 	29, 	1982, 	unless 	a 	party 	files 	a
timely 	statement of 	exceptions. 	In 	accordance 	with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by 	page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative Code 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
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Employment 	Relations 	Board 	at 	its 	headquarters office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
November 	29, 	1982, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	sections 	32300 	and
32305 	as amended.
Dated: 	November 	8, 	1982 ~ 	I&. I di?nd=JAMEW. 	TAMM
Administrative 	Law Judge
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