STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD

CHRISTOPHER BROWN,

Charging Party, Case No. LA-CE-5656-E

v. PERB Decision No. 2359

LOS ANGELES UNIFIED SCHOOL DISTRICT, March 19, 2014

Respondent.

Appearances: Christopher Brown, on his own behalf; Office of the General Counsel by David V. Greco, Assistant General Counsel, for Los Angeles Unified School District.

Before Martinez, Chair; Huguenin, Winslow and Banks, Members.

DECISION

MARTINEZ, Chair: This case is before the Public Employment Relations Board

(PERB or Board) on exceptions by Christopher Brown (Brown) to a proposed decision by a

PERB administrative law judge (ALJ). The complaint and underlying charge alleged that the

Los Angeles Unified School District (District) violated the Educational Employment Relations

Act (EERA)1 when it issued Brown a below-standard performance (Stull) evaluation and failed to reelect him to a permanent position 2 in retaliation for engaging in the protected activity of filing grievances. After a formal hearing, the ALJ issued a proposed decision concluding that the charge was not timely filed. The case was dismissed on that basis alone.

The Board has reviewed the entire record in this matter, including the complaint and answer, the hearing record, Brown's exceptions and the District's response thereto. Based on that review, we reverse the proposed decision and direct the ALJ to reopen and develop the record

1 EERA iscodified at Government Code section 3540 et seq. Unless otherwise indicated, all statutoryreferenceshereinaretotheGovernment Code.

2 On September 28, 2012, Brown withdrew the allegations concerning his non-reelection. 3 onon thethe timelinesstimeliness issue'issue andand renderrender aa new decision after considerationconsideration of Brown'sBrown's evidence evidence on on

4 tollingtolling and and any any rebuttal rebuttal the the District District may may wish wish to to present." present. BecauseBecause a acase case that that is is dismissed dismissed by by

operationoperation of the the statutestatute of limitations deprivesdeprives aa chargingcharging party of the the rightright toto receivereceive aa decision

onon thethe meritsmerits ofof the the unfairunfair practice practice charge, charge, wewe areare unwilling to to consider consider the the proposedproposed order ofof

dismissaldismissal withoutwithout a a fullyfully developed developed evidentiary evidentiary record record onon tolling.tolling.

Furthermore,Furthermore, thisthis casecase illustrates thethe flaws inin BoardBoard precedentprecedent governing thethe allocation of of

the burden of proof on on thethe timeliness issue.issue. TheThe latestlatest iteration ofof the the timelinesstimeliness rulerule isis setset forthforth

inin LongLong Beach Beach CommunityCommunity College District (2009) (2009) PERBPERB DecisionDecision No.No. 20022002 (Long(Long BeachBeach II).II).

LongLong Beach Beach IIII places places onon thethe chargingcharging partyparty thethe burdenburden ofof proving proving timeliness timeliness even even afterafter thethe Office Office

ofof the the GeneralGeneral CounselCounsel hashas determineddetermined thatthat thethe chargecharge isis timelytimely and and a a complaint complaint has has issued issued based based

onon thethe chargingcharging partyparty havinghaving setset forthforth aa primaprima faciefacie unfairunfair practice practice underunder thethe applicableapplicable laborlabor

relationsrelations act.act.

Here, the Office ofof the the GeneralGeneral CounselCounsel determined thatthat Brown'sBrown's charge waswas timelytimely filedfiled

5 and issued aa complaint.complaint." TheThe DistrictDistrict raised raised thethe statutestatute of limitationslimitations as as anan affirmativeaffirmative defense defense inin itsits answer answer to to the the complaint. complaint. Generally Generally at at the the formal formal hearing hearing parties parties are are instructed instructed that that the the issues issues

toto bebe decideddecided areare those in the PERB complaint. TheThe issues issues inin thethe PERBPERB complaintcomplaint are are limitedlimited to to

whetherwhether anan unfairunfair practice practice hashas been,been, or is being, committed. Here,Here, the the issueissue isis whetherwhether thethe

DistrictDistrict retaliated retaliated againstagainst Brown forfor engagingengaging in the protected activityactivity ofof filing grievances.grievances. ByBy

AnAn ALJ ALJ is empoweredis empowered to to "[ijnquire "[i]nquire fully fully into into all allissues issues and and obtain obtain a acomplete complete record record uponupon whichwhich the the decision decision can can be be rendered."rendered." (PERB(PERB Reg. Reg. 32170, 32170, subd. subd. (a); (a); PERB PERB Regs. Regs. are are codifiedcodified at at Cal. Cal. Code Code Regs., Regs., tit.tit. 8, 8, $ §31001 31001 et et seq.) seq.)

4 *TheThe hearing hearing record record on on the the retaliation retaliation issue issue remains remains closed. closed.

5 AlthoughAlthough nowhere nowhere is is such such a a timeliness timeliness determinationdetermination explicitly setset forth, itit isis implicitimplicit in in thethe issuance ofof aa complaint.complaint. PERBPERB isis statutorily prohibitedprohibited fromfrom issuingissuing aa complaintcomplaint "in"in respect respect ofof any any chargecharge basedbased upon an allegedalleged unfairunfair practice occurring moremore thanthan sixsix monthsmonths priorprior to to the the filingfiling of of the the charge." charge." (EERA, (EERA, $ §3541.5, 3541.5, subd. subd. (a)(1).) (a)(l).) Where Where the the Office Office of of the the General General Counsel Counsel determines that a charge isis untimely,untimely, thethe charge is subject to dismissal. (PERB(PERB Reg. Reg. 32620,32620, subd.subd. (b)(4).) 2 placingplacing the the burden burden on on Brown Brown to to prove prove a a matter matter outsideoutside thethe complaint,complaint, i.e.,i.e., thatthat hishis unfairunfair practicepractice

chargecharge isis notnot untimelyuntimely contrary contrary to to what what the the District District asserted asserted in in its its answer, answer, the the Board Board has has created created a a

system that is a trap for thethe unwary.unwary.

Therefore,Therefore, asas explained below, we take thisthis opportunity to overturn Long Beach II as as itit

relatesrelates toto thethe allocationallocation of of the the burden burden of of proof proof on on the the timelines timelines issue issue and and returnreturn PERB PERB toto aa more more

logicallogical analyticalanalytical framework. framework. ChargingCharging party's party's duty duty to to provide provide the the Office Office of of the the General General Counsel Counsel

withwith sufficient sufficient facts facts upon upon which which to to make make a a determination determination ofof timeliness timeliness isis aa bedrockbedrock principle. We We

dodo notnot disturbdisturb thatthat principleprinciple here.here. WeWe hold hold that that the the chargingcharging party'sparty's dutyduty toto establishestablish timeliness hashas beenbeen dischargeddischarged at the point atat which thethe OfficeOffice ofof the the General General CounselCounsel hashas determined thatthat

thethe chargecharge is not subject to dismissal for lacklack ofof timeliness timeliness andand issuesissues a complaint. WhereWhere the the

mattermatter goesgoes to aa formal hearing,hearing, thethe presentation ofof evidence andand allocation allocation ofof burdensburdens flow flow from

thethe operativeoperative pleadings,pleadings, thethe complaintcomplaint and and the the answer. answer. AtAt this this stage stage of of the the proceedings, proceedings, we we see see no no justificationjustification for for treating treating the the statute statute of of limitations limitations as as anythinganything butbut aa "true""true" affirmative affirmative defense, defense,

whichwhich the the respondentrespondent has thethe burdenburden toto pleadplead and and prove. prove. IfIf not pleaded, itit is waived. AtAt the the

formalformal hearing,hearing, thethe respondentrespondent has thethe initialinitial burdenburden ofof going going forwardforward with with evidence evidence on on the the timelinesstimeliness issue issue andand thethe burdenburden ofof proving proving by by a a preponderance preponderance ofof the the evidenceevidence thatthat thethe chargecharge isis untimely.untimely.

Where the issue of tolling isis raisedraised byby the the proceduralprocedural circumstancescircumstances ofof the the casecase (i.e.,

chargecharge filed outsideoutside six-monthsix-month limitationslimitations period, period, grievancegrievance machinerymachinery utilized,utilized, PERBPERB complaintcomplaint

issues),issues), as here,here, allocationallocation of thethe burdenburden of proof proof need need notnot bebe alteredaltered from thethe newlynewly announced announced

framework. TheThe charging charging party party has has no no greater greater knowledge knowledge or or evidence evidence than than the the respondent respondent on on the the

tollingtolling issue issue given given the the respondent's respondent's status status as as aa partyparty toto thethe grievancegrievance andand participantparticipant inin the the

grievancegrievance machinery.machinery. Therefore,Therefore, in in satisfying satisfying its its burden burden of of proof proof on on the the timeliness timeliness issue issue where where a a

grievancegrievance hashas beenbeen filed, thethe respondentrespondent mustmust proveprove thatthat thethe chargecharge waswas filedfiled outside outside the the six- six- monthmonth limitationslimitations period period and and that that the the tolling tolling exception exception does does not not apply. apply.

3 FACTUALFACTUAL BACKGROUNDBACKGROUND

BrownBrown was was anan adultadult educationeducation teacher employedemployed byby thethe DistrictDistrict in the Division ofof Adult Adult

and Career Education.Education. TeachersTeachers at the District are are inin aa bargainingbargaining unit unit represented represented byby thethe UnitedUnited

Teachers ofof LosLos AngelesAngeles (UTLA).(UTLA). TheThe District District and and UTLA UTLA were were parties parties to to a a collective collective bargaining bargaining

began his employment with the agreement (CBA)(CBA) that was in effect at all relevant times. BrownBrown began his employment with the

DistrictDistrict in in 2007 2007 at at Fremont-Washington Fremont-Washington CommunityCommunity AdultAdult School. School. He He taught taught mathematics mathematics and and readingreading labs. labs. InitiallyInitially Brown Brown was was employed employed on on a contracta contract basis basis but but he he applied applied and and was was accepted accepted

intointo a a tenure-eligibletenure-eligible teaching teaching positionposition in in 2009. 2009.

TheThe 2009-20102009-2010 schoolschool yearyear was Brown's first probationaryprobationary year.year. OnOn June June 1,1, 2010,2010, BrownBrown

receivedreceived aa finalfinal performanceperformance evaluation.evaluation. PrincipalPrincipal Mike Mike Wada Wada (Wada) (Wada) signed signed the the evaluation evaluation as as

thethe reviewingreviewing administrator.administrator. AssistantAssistant Principal Principal VoncileVoncile Burkett Burkett (Burkett) (Burkett) signed signed the the evaluationevaluation

asas evaluator. BrownBrown received received the the highest highest possible possible rating rating except except in in one one category category (record-keeping). (record-keeping).

InIn response, response, BrownBrown filed filed a a grievance grievance on on June June 16,16, 2010,2010, assertingasserting that the District violatedviolated certain certain

timeframestimeframes specifiedspecified inin thethe CBA.CBA. WadaWada settled settled the the grievancegrievance withwith Brown Brown by by agreeing agreeing to to remove remove

thethe performanceperformance evaluation from Brown'sBrown's personnel personnel file.file.

BrownBrown filed filed three three additional additional grievances grievances between between July July 1 1 and and JulyJuly 19, 19, 2010,2010, forfor

administratorsadministrators "publicly"publicly reprimanding/criticizing" reprimanding/criticizing" him him in in class. class. Two Two of ofthe the grievances grievances were were

denied.denied. TheThe third, third, which which involved involved conduct conduct by by Burkett, Burkett, resulted resulted in in Wada Wada issuing issuing a a writtenwritten statementstatement stating stating thatthat "we "we truly truly regret regret any any embarrassment embarrassment or or inconvenience inconvenience that that may may have have

occurredoccurred toto thethe grievant"grievant" and and thatthat thethe administrationadministration would would be be more more careful careful in in the the future. future.

BrownBrown worked worked a asummer summer assignment assignment between between the the 2009-2010 2009-2010 and and 2010-201 2010-201 1academic lacademic

years.years. OnOn August August 17, 17, 2010, 2010, during during the the summer summer session, session, Wada Wada issued issued BrownBrown a a letter letter of of reprimand reprimand

basedbased on certain deficiencies observedobserved by by CatherineCatherine "Kitt" "Kitt" Bell,Bell, whowho supervised supervised curriculumcurriculum and and instructioninstruction at at the the District.District. At At a conferencea conference with with Brown Brown about about the the letter, letter, Brown Brown told told Wada Wada he he believedbelieved the the reprimand reprimand was was issuedissued inin retaliationretaliation for for the the grievances grievances hehe filedfiled during during the the preceding preceding

4 schoolschool year.year. WadaWada memorialized memorialized Brown's Brown's retaliation retaliation comments comments in in a a conference conference memorandummemorandum

dateddated AugustAugust 18, 18, 2010. 2010.

OnOn September September 13,13, 2010,2010, Brown enteredentered his second probationary probationary school school year. year. AfterAfter twotwo

formalformal observations observations by by Assistant Assistant Principal Principal Jose Jose Alcazar, Alcazar, on on February February 23, 23, 2011, 2011, Wada Wada issued issued

Brown anan evaluation,evaluation, assigningassigning himhim thethe lowestlowest possiblepossible ratingrating inin everyevery categorycategory exceptexcept oneone

(timely(timely arrival arrival and and class class start). start). WadaWada signed signed the the evaluation evaluation both both as as thethe evaluatorevaluator andand reviewingreviewing

administrator.administrator. ThatThat evaluation evaluation included included the the letter letter of of reprimand reprimand and and the the conference conference memorandummemorandum

describeddescribed inin thethe preceding preceding paragraph. paragraph.

OnOn FebruaryFebruary 15,15, 2011, the District informedinformed BrownBrown that that he he waswas beingbeing consideredconsidered for non-non-

reelection.reelection. OnOn March March 8, 8, 2011, 2011, the the District District issued issued Brown Brown a a notice notice of of non-reelection. non-reelection.

On MarchMarch 14,14, 2011,2011, BrownBrown grieved grieved thethe 2010-20112010-2011 performanceperformance evaluation,evaluation, allegingalleging that that it it

6 waswas issuedissued "without cause"cause" and failed to comply with evaluationevaluation proceduresprocedures underunder the the CBA. CBA. OnOn

MarchMarch 24, 24, 2011, 2011, Wada Wada denied denied thethe grievancegrievance atat Step One. BrownBrown did did not not appeal appeal thethe denialdenial toto

7 StepStep Two.?Two.

InIn thethe proposedproposed decision, the ALJ foundfound thatthat atat somesome point afterafter thethe denial,denial, BrownBrown

submitted the mattermatter toto UTLA'sUTLA's "grievance"grievance review committee," which informedinformed BrownBrown inin March March

2012 that "they couldn'tcouldn't go go forward."forward." The The ALJ ALJ observed observed that that the the hearing hearing record record does does not not contain contain

an explanation of the function of UTLA'sUTLA's grievance grievance review review committee. committee.

6 6 GrievanceGrievance #2010-100189.#2010-100189.

7 "TheThe grievance grievance procedure procedure underunder thethe CBA, containedcontained in Article V,V, culminatesculminates inin binding binding arbitration. OnlyOnly UTLA, UTLA, with with the the concurrence concurrence of of the the individual individual grievant, grievant, may may advance advance a a grievancegrievance toto arbitration.arbitration. ThereThere are are two two levels, levels, or or steps, steps, whichwhich precede precede arbitration.arbitration. OnceOnce the the District responds responds toto aa grievancegrievance atat StepStep One,One, thethe grievantgrievant hashas fivefive daysdays toto advanceadvance thethe mattermatter to to Step Two.Two. OnceOnce thethe District respondsresponds at StepStep Two, Two, UTLAUTLA must request arbitrationarbitration withinwithin fivefive days.days. TheThe District District and and UTLA UTLA may may agree agree in in writing writing to to extend, extend, shorten shorten or or waive waive any any step step oror timelinetimeline inin the the grievance grievance process.process. IfIf the the grievant grievant fails fails to to advance advance thethe grievancegrievance withinwithin the the time time specified, the grievance terminates. IfIf the the DistrictDistrict fails fails to to respond respond at at any any step, step, the the grievancegrievance may may proceed directlydirectly toto arbitration.arbitration. ArticleArticle V V includes includes aa "No"No Reprisals" Reprisals" provision,provision, which which states: states: "There shallshall bebe nono reprisalreprisal againstagainst an employee forfor utilizing thesethese grievancegrievance procedures oror for assistingassisting aa grievantgrievant pursuant pursuant to to these these procedures." procedures." 55 PROCEDURALPROCEDURAL HISTORYHISTORY

OnOn FebruaryFebruary 16,16, 2012,2012, approximatelyapproximately aa yearyear afterafter thethe District issued issued BrownBrown the the negativenegative

performanceperformance evaluation,evaluation, BrownBrown filed filed the the present present unfair unfair practice practice charge. charge. OnOn September September 28, 28, 2012, 2012,

thethe OfficeOffice of of the the General General CounselCounsel issuedissued a complaintcomplaint alleging that thethe DistrictDistrict gavegave Brown thethe

negativenegative evaluationevaluation because because he engaged in in thethe protectedprotected activity activity ofof filing grievances.grievances. OnOn

OctoberOctober 10,10, 2012,2012, thethe DistrictDistrict filed filed an an answer answer to to the the PERBPERB complaintcomplaint denying denying the the substantive substantive

allegationsallegations andand assertingasserting multiple affirmativeaffirmative defenses, defenses, includingincluding that that the the chargecharge waswas untimelyuntimely

filed.filed.

AnAn informal informal settlement settlement conference conference was was heldheld onon NovemberNovember 2,2, 2012,2012, butbut thethe mattermatter waswas notnot

resolved.resolved. Thereafter,Thereafter, aa formalformal hearinghearing waswas heldheld on February 20-21,20-21, 2013.2013. On the first day ofof hearing,hearing, thethe ALJALJ tooktook official official notice notice of of the the content content of of the the casecase file. OnOn April April 22, 22, 2013, 2013, the the parties parties

filedfiled simultaneoussimultaneous closingclosing briefs.briefs. AtAt that that point, point, the the record record was was closed closed and and the the matter matter was was

submittedsubmitted forfor decision.decision.

TheThe ALJ'sALJ's proposed proposed decision decision issued issued on on June June 12,12, 2013,2013, concludingconcluding that that the the chargecharge waswas untimelyuntimely filed filed and and the the complaint complaint and and charge charge should should be be dismissed.dismissed. OnOn July July 22, 22, 2013,2013, BrownBrown

8 timelytimely filedfiled a a statement statement ofof exceptions exceptions andand requestrequest for oraloral argument."argument. OnOn August August 9, 9, 2013, 2013, the the

DistrictDistrict timely timely filed filed its its response response to to thethe statementstatement of exceptions. ByBy letterletter fromfrom thethe AppealsAppeals

Assistant dated August 27, 2013, the parties were informed thatthat thethe filingsfilings were were complete complete and and the the

casecase was placed on the Board's docketdocket onon August August 9, 9, 2013. 2013.

THETHE PROPOSED PROPOSED DECISIONDECISION

TheThe ALJ notednoted thatthat thethe District had had raisedraised the statute ofof limitations asas an affirmativeaffirmative

defensedefense in its answer. TheThe analysisanalysis centeredcentered on whether an exceptionexception toto thethe statutestatute of of limitationslimitations

BBrown'srown's request request for for oral oral argument argument is is denied. denied. TheThe Board Board historically historically denies denies requests requests forfor oral argumentargument whenwhen an an adequate adequate recordrecord hashas beenbeen prepared, the parties had ample opportunity to to presentpresent briefsbriefs andand havehave availedavailed themselvesthemselves ofof that that opportunity, opportunity, and and the the issues issues before before the the Board Board are are sufficientlysufficiently clear clear to to make make oral oral argument argument unnecessary. unnecessary. (See,(See, e.g.,e.g., MontereyMonterey CountyCounty OfficeOffice ofof EducationEducation (1991)(1991) PERBPERB DecisionDecision No. No. 913.)913.) 66 applied.applied. UnderUnder the the statutory statutory tolling tolling doctrine, doctrine, the the statute statute of of limitations limitations is is suspended suspended duringduring thethe

timetime the the same same issueissue isis beingbeing pursuedpursued using a grievance procedureprocedure thatthat endsends in in bindingbinding arbitration.

The ALJ concludedconcluded thatthat althoughalthough Brown'sBrown's grievance grievance concerning concerning the the 2010-2011 2010-2011 performance performance

evaluationevaluation diddid notnot allegeallege a violationviolation of thethe "No Reprisals"Reprisals" provision ofof the the CBA, hishis retaliationretaliation

allegationsallegations werewere nonethelessnonetheless includedincluded inin hishis grievancegrievance byby incorporationincorporation ofof Wada'Wada's s letter of

reprimandreprimand and and conferenceconference memorandum,memorandum, which memorializedmemorialized Brown'sBrown's retaliation retaliation comments. comments.

TheThe ALJALJ nextnext concluded,concluded, however,however, thatthat the statute ofof limitations waswas not tolled forfor aa periodperiod ofof

timetime long long enough enough to to makemake thethe chargecharge timely.timely.

TheThe proposedproposed decisiondecision states:states:

...... Brown Brown failed failed to to provide provide several several key key details details about about when when the the 201 2011 1 grievance concluded. Brown diddid notnot establish,establish, forfor instance,instance, thatthat hehe timelytimely advanced advanced hishis grievance grievance beyond beyond Step Step One, One, eithereither by by submittingsubmitting itit at at the the nextnext stepstep withinwithin the the five-dayfive-day time time period, period, or or by by requestingrequesting and receivingreceiving a waiverwaiver ofof that deadline fromfrom LAUSD. TheThe grievancegrievance terminatesterminates ifif not not timely timely advanced advanced beyond beyond Step Step One. One.

Brown assertsasserts that he submitted the mattermatter toto UTLA's grievance grievance review committeecommittee butbut hehe did notnot explainexplain whatwhat thatthat committeecommittee doesdoes inin relationrelation to to thethe grievancegrievance process.process. TheThe grievancegrievance reviewreview committee is not described inin the CBA.CBA. BrownBrown has has notnot metmet hishis burdenburden ofof proving proving that that his his involvement involvement with with that that committee committee was was moremore thanthan merelymerely anan informalinformal process process outside outside the the negotiated negotiated grievancegrievance procedure.procedure.

TheThe ALJALJ noted noted thatthat informationinformation provided provided during during the the investigationinvestigation stage stage ofof an an unfair practicepractice chargecharge isis not evidence. AsAs thethe ALJALJ observedobserved in thethe findings ofof fact, fact, Brown'sBrown's second second amendedamended chargecharge includes a letterletter from UTLA dated dated MarchMarch 30, 30, 2012,2012, statingstating thatthat "they"they couldn'tcouldn't go go

forward."forward." The The ALJ ALJ concluded, concluded, however, however, that that his his decision decision to to take take notice notice of of the the case case filefile

demonstratesdemonstrates thatthat "Brown"Brown alleges that UTLA reviewedreviewed hishis grievancegrievance untiluntil MarchMarch 30, 30, 2012,2012, but but is is

notnot evidenceevidence that UTLA actuallyactually did did so." so." (Proposed (Proposed decision, decision, p. p. 1414 [emphasis[emphasis in thethe original].)

TheThe proposedproposed decisiondecision states: states:

BrownBrown diddid notnot provideprovide evidenceevidence of UTLA's actions actions duringduring thethe hearinghearing eveneven afterafter beingbeing instructedinstructed byby thethe AdministrativeAdministrative Law Law Judge Judge

7 that "the"the contentscontents ofof the the casecase file isis notnot evidence evidence in in this this case, case, meaning if you you submittedsubmitted a a documentdocument inin youryour charge charge oror inin the the District'sDistrict's response, response, those those documentsdocuments areare notnot evidenceevidence onon whichwhich I Ican can relyrely unlessunless youyou independentlyindependently submitsubmit them them againagain duringduring the the course course of thisthis hearing."hearing."

Finally,Finally, the the proposed proposed decision decision concludes concludes thatthat even if UTLA'sUTLA's grievance grievance review review committee committee

plays some official rolerole in in advancing advancing grievances, grievances, BrownBrown failed failed to to establish establish when when he he submitted submitted his his

grievancegrievance toto thethe committee,committee, thatthat he he diddid so so inin a a manner manner thatthat wouldwould have have allowedallowed him him to to pursue pursue the the

grievance further or that the committee complied withwith or or received received aa waiverwaiver of of the the applicable applicable

timeframes.timeframes. TheThe proposed proposed decisiondecision states, "[w]ithout "[without this this information information it it remains remains unclear unclear whenwhen it it

became apparent thatthat thethe possibilitypossibility ofof a a remedyremedy viavia the the grievance grievance process process waswas foreclosed."foreclosed."

BROWN'S EXCEPTIONSEXCEPTIONS

BrownBrown filedfiled 1212 exceptions.exceptions. TheThe firstfirst 1 11 1 take issue with with thethe ALJ'ALJ's s findings of fact. TheThe

9 challengedchallenged factualfactual findingsfindings concern concern the the retaliationretaliation issue." issue. WeWe need need not not address address them them at at this this

· 10 juncture.Juncture. 10

" ExceptionException 3 3 does does havehave somesome bearingbearing onon thethe timeliness issueissue as well asas the retaliation issue,issue, as BrownBrown points out. BrownBrown objects objects to to thethe mannermanner inin whichwhich the the ALJALJ summarized summarized thethe grievance process. The Board's own summary isis provided,provided, ante,ante, atat footnotefootnote 7. 7. Although wewe findfind nono meritmerit inin Brown'sBrown's exception, exception, we we include include the the followingfollowing excerpt excerpt from from the the CBA CBA to to remove remove any any possiblepossible doubtdoubt asas to PERB'sPERB' s understandingunderstanding of the grievance mechanism. TheThe CBACBA provides:provides:

StepStep Two: IfIf the the grievance grievance is is not not resolved resolved at at Step Step One, One, thethe grievantgrievant may,may, withinwithin five five (5) (5) days days after after the the termination termination of of Step Step One, One, present present thethe grievancegrievance toto thethe appropriateappropriate Superintendent,Superintendent, Division Head Head or or designee.designee. WithinWithin five five (5) (5) days days from from receipt receipt of of the the grievance, grievance, a a meeting shall take place to discuss thethe matter.matter. TheThe administratoradministrator shall reply in writing withinwithin five five (5) (5) days days following following the the meeting. meeting. The receipt of suchsuch reply willwill terminate terminate Step Step Two.Two.

ItIt isis undisputedundisputed thatthat BrownBrown did did not not elevate elevate his his grievance grievance to to StepStep Two.Two.

10 " AfterAfter conclusion conclusion of of the the formal formal hearing hearing upon upon remand, remand, thethe ALJALJ may may decidedecide thatthat hishis original conclusionconclusion regarding regarding timelinesstimeliness isis correct.correct. If,If, however, however, the the ALJ ALJ determines determines that that the the tolling exceptionexception doesdoes apply and Brown's chargecharge isis timely,timely, the ALJ willwill be be taskedtasked withwith analyzinganalyzing bothboth thethe timelinesstimeliness andand retaliation issuesissues in the new decision. InIn eithereither case,case, the ALJALJ may reviewreview Brown's exceptions exceptions toto thethe factualfactual findings,findings, and and the the District's District's response response to to those those exceptions, exceptions, to to ensure thatthat the factual findings includedincluded in in the the new new decision decision are are freefree ofof any any possible possible error. error. 88 ExceptionException 1212 takestakes issue withwith the ALJ'ALJ's s conclusionconclusion that the charge isis untimely.untimely. BrownBrown

arguesargues that under Evidence Code section 500, the District carriescarries thethe burdenburden ofof proving proving its its

affirmativeaffirmative defense, defense, andand thatthat nono testimonytestimony waswas broughtbrought forwardforward atat thethe formalformal hearing hearing on on the the

timelinesstimeliness issue.issue. BrownBrown asserts asserts thatthat thethe District's post-hearing post-hearing briefbrief was was thethe onlyonly signsign thatthat the the 11 timelinesstimeliness ofof his his chargecharge was stillstill atat issue."issue. BrownBrown claims claims to to be be in in possession possession of of documentary documentary

evidenceevidence relevantrelevant toto thethe tollingtolling question, question, whichwhich he he contendscontends willwill demonstrate demonstrate that that his his chargecharge was was

timelytimely filed.filed. BrownBrown asks: asks:

TheThe administrativeadministrative hearing hearing lasted lasted almost almost two two days days and and Respondent Respondent raisedraised no issue ofof the LimitationsLimitations duringduring trial.trial. If IfRespondent Respondent believedbelieved therethere waswas aa valid issue,issue, whywhy wouldwould the the parties parties havehave hadhad toto wastewaste allall ofof the the time time with with the the hearing? hearing?

THETHE DISTRICT'S DISTRICT'S RESPONSE RESPONSE

The District responds responds toto allall 12 12 exceptions, exceptions, but but for for reasons reasons discussed discussed above, above, wewe summarizesummarize

thethe District's response response to Exception 12 only. TheThe DistrictDistrict urges urges thethe BoardBoard toto disregarddisregard Brown's

timelinesstimeliness objection forfor threethree reasons. According toto thethe District, BrownBrown incorrectly incorrectly asserts asserts thatthat

thethe DistrictDistrict has has thethe burden of proof to establish thatthat Brown'sBrown's charge waswas untimelyuntimely filed.filed. TheThe

DistrictDistrict contends contends thatthat thethe ALJALJ correctlycorrectly placed placed thethe burdenburden of provingproving timelinesstimeliness onon Brown.Brown.

Second,Second, the District argues argues thatthat whateverwhatever documentarydocumentary evidenceevidence BrownBrown may may havehave isis notnot in in the the recordrecord and and thereforetherefore cannotcannot be considered. The District reliesrelies onon PERBPERB RegulationRegulation 32300,32300,

subdivisionsubdivision (b), (b ), which which provides: provides: "Reference "Reference shall shall be be made made in in the the statement statement ofof exceptions exceptions onlyonly to to

ShouldShould BrownBrown file file exceptions exceptions to to the the new new decision, decision, hehe willwill be be precluded precluded from from raising raising any any new new exceptionsexceptions to the findingsfindings ofof fact fact to to the the extent extent they they remainremain unchanged unchanged butbut maymay renewrenew his currentcurrent exceptionsexceptions ifif he he believesbelieves they continue to havehave merit. ShouldShould the the DistrictDistrict file file exceptions exceptions to to the the newnew decision,decision, itit too too willwill'be be precluded precluded from from raising raising exceptions exceptions to to the the findings findings of of fact fact to to the the extent extent they remain unchanged. (See(See PERB Reg. 32300, subd. (c)(c) ["[a]n exceptionexception notnot specificallyspecifically urged urged shallshall be waived"].)

11 "TheThe District District raised raised other other traditional traditional affirmative affirmative defenses defenses in in its its answer answer toto thethe complaintcomplaint inin additionaddition toto thethe statutestatute of limitations,limitations, including,including, for for example, example, failure failure to to exhaust exhaust administrativeadministrative remedies,remedies, laches and uncleanunclean hands.hands. These mattersmatters werewere notnot pursuedpursued byby thethe DistrictDistrict at the formalformal hearing, nor werewere they argued in the District's post-hearing post-hearing brief. brief. 9 mattersmatters containedcontained in thethe record of the case." Last,Last, thethe District arguesargues that Brown inappropriatelyinappropriately pleadspleads forfor thethe Board'sBoard's sympathy sympathy basedbased on his in propia person status.status. According toto thethe District,

Brown'sBrown's lack lack of of understanding understanding on on the the statute statute ofoflimitations limitations issue issue is is no no excuse excuse forfor his his failure failure to to

presentpresent hishis additionaladditional evidence evidence at at the the formal formal hearing. hearing.

DISCUSSIONDISCUSSION

1.1. StatutoryStatutory TollingTolling

TheThe conductconduct underlyingunderlying the the unfair unfair practice practice charge, charge, the the issuance issuance ofof the the negativenegative

performanceperformance evaluation, occurred onon FebruaryFebruary 23, 23, 2011. 2011. BrownBrown diddid not file hishis unfairunfair practicepractice

12 chargecharge until FebruaryFebruary 22,22, 2012. UnlessUnless anan exception to thethe six-monthsix-month limitationslimitations period"period applies,applies,

Brown's chargecharge isis untimely.untimely. UnderUnder the the statutory statutory tolling tolling doctrine, doctrine, the the statute statute ofof limitations limitations is is

suspendedsuspended during thethe timetime thethe samesame issueissue is pursued utilizing a a grievance grievance procedure procedure that that ends ends in in bindingbinding arbitration arbitration (Los (Los Angeles Angeles Unified Unified School School DistrictDistrict (1991) (1991) PERB PERB Decision Decision No. No. 894); 894); that that is, is, fromfrom the the time time the the charging charging party party filed filed the the grievance grievance until until the the time time the the grievance grievance machinery machinery of of the the collectivecollective bargaining bargaining agreement agreement hashas been exhausted.exhausted. (Sacramento(Sacramento City City UnifiedUnified School DistrictDistrict

(2001)(2001) PERBPERB DecisionDecision No. No. 1461.)1461.)

TheThe statutorystatutory tollingtolling doctrine doctrine derives derives from from EERA EERA section section 3541.5, 3541.5, subdivision subdivision (a)(2), (a)(2),

which providesprovides inin pertinentpertinent part:part:

[T]he[T]he boardboard shall not ...... ['][1] [issue [i]ssue a complainta complaint against against conduct conduct also prohibited byby thethe provisionsprovisions of of the the agreement agreement between between the the parties until thethe grievancegrievance machinerymachinery ofof the the agreement,agreement, ifif it it exists exists andand coverscovers thethe mattermatter at at issue, issue, has has beenbeen exhausted,exhausted, eithereither by by settlementsettlement or binding arbitration...... TheThe board board shall, shall, inin determiningdetermining whetherwhether thethe chargecharge was timely filed,filed, considerconsider the the six-six- monthmonth limitationlimitation set set forthforth in in this this subdivision subdivision to to have have been been tolledtolled during the time itit tooktook the the chargingcharging party party to to exhaust exhaust the the grievancegrievance machinery.machinery.

12 12 EERAEERA section 3541.5,3541.5, subdivisionsubdivision (a)(1). (a)(l).

1010 AsAs isis clearclear fromfrom thethe texttext ofof this this provision,provision, thethe statutorystatutory tollingtolling doctrine doctrine only only applies applies where where

thethe grievancegrievance andand the later-filed charge charge raiseraise thethe samesame issue. (Peralta(Peralta CommunityCommunity College College

DistrictDistrict (2001) (2001) PERBPERB DecisionDecision No.No. 14621462 ["PERB willwill not not toll toll the the statute statute ofof limitations limitations [under[under

EERAEERA section section 3541.5(a)(2)] 3541.5(a)(2)] inin a a discrimination discrimination case case whenwhen thethe District isis unawareunaware of thethe specific North Orange County Community College District discriminationdiscrimination allegation"]; allegation"); North Orange County Community College District (1998)(1998) PERBPERB

Decision No. 1268;1268; Los Angeles UnifiedUnified School DistrictDistrict (1991) PERB Decision No. 887.) Here,Here,

Brown grievedgrieved hishis below-standardbelow-standard performanceperformance evaluationevaluation utilizingutilizing the the grievance grievance procedure procedure underunder thethe CBA.CBA. AlthoughAlthough Brown's Brown's grievance grievance did did not not reference reference the the "No"No Reprisals" Reprisals" provision,provision,

WadaWada was otherwise informedinformed of Brown's retaliationretaliation claim.claim. Wada'sWada's conference conference memorandummemorandum

expresslyexpressly acknowledgedacknowledged Brown'sBrown's claim claim that that the the letter letter of of reprimand reprimand was was issued issued in in part part in in

retaliationretaliation forfor Brown'sBrown's earlier earlier grievance grievance activity.activity. Because Because WadaWada includedincluded bothboth thethe letter of

reprimandreprimand andand thethe conferenceconference memorandum as supporting material forfor thethe evaluation,evaluation, WadaWada

expresslyexpressly incorporated Brown's retaliationretaliation allegationallegation intointo thethe evaluationevaluation itself.itself. TheThe evaluation evaluation documentsdocuments provideprovide adequateadequate notice thatthat retaliationretaliation was was amongamong thethe issuesissues raised by Brown's

grievance.grievance. WeWe agree agree withwith the the ALJALJ that that Brown's Brown's grievance grievance and and later-filed later-filed unfair unfair practice practice charge charge

13 raiseraise thethe samesame retaliationretaliation issue.issue." Accordingly,Accordingly, the the statutory statutory tolling tolling doctrine doctrine applies applies and and the the

statute of limitations isis suspendedsuspended untiluntil the grievance machinerymachinery ofof the collectivecollective bargaining

agreementagreement hashas beenbeen exhausted.exhausted.

The determinationdetermination ofof the the pointpoint in in time time at at which which the the parties parties exhausted exhausted the the grievance grievance machinerymachinery is is thethe decisivedecisive issueissue inin thisthis case.case. InIn SanSan DieguetoDieguito Union High SchoolSchool DistrictDistrict (1982) (1982)

PERBPERB DecisionDecision No.No. 194194 (San(San Diegueto),Dieguito ), the Board held that thethe statutestatute of of limitationslimitations should toll

13 15 We note thatthat thethe DistrictDistrict diddid notnot exceptexcept toto thethe ALJ'sALJ' s conclusions conclusions of of law law on on this this discussiondiscussion point.point.

1111 "until"until after after it it became became clear clear thatthat thethe possibilitypossibility of of a a remedy remedy viavia [the [the grievance grievance procedure]procedure] waswas

14 foreclosed."14foreclosed."

UnderUnder the the CBA,CBA, a a grievancegrievance terminatesterminates if not not timelytimely advanced advanced beyondbeyond StepStep One. BrownBrown

testifiedtestified as as followsfollows on on cross-examination: cross-examination:

Q AndAnd diddid you you -- -- ThisThis went went through through a astep step one one process, process, correct?correct?

A Yes.

OQ AndAnd cancan you turn to Exhibit 15? 15? ThisThis is is a a letter, letter, and and II understandunderstand it's addressed to to Mr. Mr. MiceliMiceli who isis youryour UTLAUTLA rep, rep, correct? correct?

A Yes.

(Thereupon,(Thereupon, the the above-referenced above-referenced documentdocument was was markedmarked as as Respondent'sRespondent's Exhibit 1515 for identification.)identification.)

BY MR.MR. GRECO:GRECO:

Q And it'sit's dateddated March 24th, 2011. And it'sit's fromfrom Mr. Wada,Wada, correct?correct? DidDid you you receive receive this this letter? letter?

AA No,No, I've I've never never seen seen this before in my life.life.

QO Okay.Okay. DidDid you you go go to to a astep step two two process process in in the the grievance? grievance?

A No.No.

OQ What was youryour nextnext communicationcommunication withwith UTLA regardingregarding this this grievance? grievance?

AA ItIt was was the the grievance grievance reviewreview committee. committee.

Q So,So, it it went went straight straight from from a astep step one one to to a a grievance grievance reviewreview committee?committee?

A YesYes.

* SanSan Diegueto Dieguito concernedconcerned the equitable tollingtolling doctrine,doctrine, byby whichwhich thethe statutestatute of limitationslimitations isis tolledtolled duringduring participation participation in in a anegotiated negotiated dispute dispute resolution resolution process process thatthat does does notnot endend inin bindingbinding arbitration. arbitration. As As in in statutory statutory tolling tolling cases, cases, PERB PERB has has held held that that equitable equitable tollingtolling only only applies in retaliationretaliation cases cases wherewhere thethe disputedispute resolutionresolution process process putsputs thethe employeremployer onon noticenotice that that retaliationretaliation is is an an issue. issue. (See(See Trustees Trustees ofof the the CaliforniaCalifornia State State University University (San (San Jose) Jose) (2009) (2009) PERB PERB Decision No. 2032-H.)2032-H.)

1212 QQ Okay.Okay. And Andhow how did didthe thegrievance grievance review review committee committee react?react? OrOr what what was was their their response? response?

A I I didn'tdidn't get get a aresponse response from from them them for, for, until until last last March, March, or or something.something. ItIt was was almost almost a ayear, year, it it was was a ayear year or or so. so.

Q And what was the decision that you received in March of Q And what was the decision that you received in March of lastlast year?year?

AA ThatThat they they couldn'tcouldn't go go forward.forward.

TheThe DistrictDistrict argued argued inin itsits post-hearingpost-hearing briefbrief that that BrownBrown failedfailed toto establishestablish thethe timelinesstimeliness ofof

hishis charge.charge. InIn making making that that argument,argument, thethe District reliedrelied onon Brown'sBrown's testimony testimony quoted quoted aboveabove inin

assertingasserting that Brown'sBrown's grievance grievance diddid not not advance advance toto StepStep TwoTwo underunder thethe CBACBA and and "thus,"thus, was was

deemeddeemed withdrawn or or closed." closed."

TheThe DistrictDistrict also also reliedrelied onon thethe testimonytestimony ofof its its mainmain witness,witness, Wada.Wada. Wada'sWada's testimony,testimony, however,however, raises raises moremore questionsquestions than it answers.answers. HeHe testifiedtestified as as follows:follows:

Q Mr.Mr. Wada, Wada, just just so so wewe cancan getget itit aa littlelittle bit bit on on the the recordrecord forfor an an understanding, understanding, whenwhen aa grievancegrievance isis filed,filed, who who are are the the communicationscommunications withwith on on behalfbehalf of of the the District?District?

AA It'sIt's going going to to be,be, it'sit's goinggoing toto involveinvolve on on the the partpart ofof the the DistrictDistrict whoever whoever plays plays field field director director in in now now Employee Employee Performance Performance Accountability and and the the specific specific administrator administrator that that has has been been grieved. grieved.

Q ButBut who who dodo theythey communicatecommunicate with?with?

A WithWith UTLA.UTLA.

Q Okay.Okay. AndAnd UTLA UTLA is is acting acting on on behalf behalf of of the the LAUSDLAUSD employeeemployee- -

A OfOf their their member. member.

QQ ---- whowho isis ----

AA That isis correct.correct.

Q ---- thethe grievant, grievant, correct? correct?

A That is correct.correct.

1313 QQ Okay.Okay. And Anddo you do you know know whether whether or or not not Mr. Mr. Brown's Brown's grievancegrievance forfor thethe StullStull Evaluation Evaluation of of the the 2010-2011 2010-2011 schoolschool yearyear went toto aa stepstep two?two?

A I Ihave have knowledgeknowledge that that he he chosechose notnot toto gogo toto stepstep twotwo andand go to the grievancegrievance review committee.committee.

Q Q AndAnd do do you you know know what what the the status status ofof that that grievance grievance isis currently?currently?

A I do I do not not have have any any firsthand firsthand knowledge. knowledge.

As cancan bebe seen fromfrom the above excerpts, the hearing record concerning the keykey questionquestion on on

the tolling issue, issue, i.e.,i.e., atat whatwhat point point in in time time was was the the grievance grievance machinery machinery exhausted, exhausted, is is unsatisfying unsatisfying

andand inconclusive. IfIf the the District's District's argument argument is is correct correct that that the the grievance grievance waswas closedclosed or withdrawn

afterafter BrownBrown failed failed to to appeal appeal the the StepStep OneOne denialdenial byby WadaWada to StepStep Two, it isis noteworthynoteworthy thatthat

Wada responded toto the questionquestion aboutabout thethe statusstatus of of thethe grievancegrievance byby testifyingtestifying "I dodo notnot have have any any

firsthandfirsthand knowledge" knowledge" rather rather than than by by testifying testifying that that the the grievance grievance was was dead, dead, or or words words to to that that effect. effect.

RegardlessRegardless of whichwhich partyparty has has thethe burdenburden ofof proof, proof, there there must must be be an an adequate adequate evidentiaryevidentiary record, record,

especiallyespecially onon suchsuch aa pivotalpivotal issue. issue.

Moreover,Moreover, under under the the grievancegrievance procedure,procedure, aa grievance may proceed toto arbitrationarbitration in oneone ofof

twotwo ways.ways. OnceOnce the the District District denies denies the the grievance grievance at at Step Step Two, Two, the the exclusive exclusive representative representative has has

five daysdays to request arbitration.arbitration. Or,Or, ifif the the District District fails fails to to respond respond at at any any step, step, the the grievance grievance may may

proceedproceed directly toto arbitration.arbitration. WeWe know know that that the the District District did did not not fail fail to to respond respond at at Step Step One One and and

Brown diddid not not advance advance thethe grievancegrievance to StepStep Two. TheThe District District and and the the exclusive exclusive representative representative

maymay also,also, however,however, agreeagree in writing to to extend,extend, shortenshorten oror waivewaive anyany stepstep oror timelinetimeline in in the the

grievancegrievance process. TheThe factfact thatthat StepStep TwoTwo waswas notnot triggered,triggered, thatthat Brown'sBrown's grievance grievance was was

allegedlyallegedly beforebefore thethe exclusiveexclusive representative'srepresentative's grievancegrievance reviewreview committee,committee, andand thatthat BrownBrown was was informedinformed by by that that committeecommittee inin MarchMarch 20122012 thatthat itit hadhad decided notnot toto gogo forwardforward withwith Brown'sBrown's grievance,grievance, hints at the possibilitypossibility that thethe grievancegrievance was was still still alive alive until until that that point point in in time. time. AsAs

WadaWada testified,testified, allall communications communications concerning concerning grievances grievances are are between between the the DistrictDistrict and and the the

14 exclusiveexclusive representative. representative. ForFor example, example, Wada's Wada's Step Step One One denial denial is is addressed addressed in in a a letter letter to to the the exclusiveexclusive representativerepresentative andand notnot toto Brown.Brown. BrownBrown was was notnot copiedcopied on the letter. BrownBrown testified testified hehe nevernever received it. OfOf the the two two parties parties involvedinvolved here, here, thethe DistrictDistrict is is the the partyparty most most likelylikely to to knowknow thethe realreal statusstatus of thethe grievancegrievance at any particular point inin timetime during during the the exhaustion exhaustion of of the the

15 grievance machinery."machinery.

We agree withwith the ALJ thatthat BrownBrown did did not not establish establish when, when, ifif ever, ever, he he submitted submitted his his grievance to the grievance review committeecommittee oror that that he he diddid so so inin a a mannermanner thatthat wouldwould have have allowedallowed himhim to to pursue pursue the the grievancegrievance further.further. WeWe also also agree agree that that Brown Brown did did not not establish establish that that the the exclusiveexclusive representative'srepresentative's grievancegrievance review committeecommittee compliedcomplied withwith or or received received aa waiverwaiver of of the the applicableapplicable timelinestimelines contained contained withinwithin the the CBA CBA grievance grievance procedure, procedure, oror otherwise otherwise timelytimely pursued pursued thethe grievance.grievance.

TheThe problemproblem withwith this this case, case, however,however, transcendstranscends the evidentiaryevidentiary record. ThereThere isis nono dispute that the chargecharge was was filed filed outsideoutside the the six-month six-month limitations limitations period.period. (See fn.fn. 5.) Ordinarily,Ordinarily, onon thosethose factsfacts alone,alone, the charge would havehave been subject to dismissal. Instead,Instead, inin issuing issuing the the complaint, thethe OfficeOffice of of the the General General Counsel Counsel necessarilynecessarily foundfound thatthat thethe statutorystatutory tollingtolling exception exception toto thethe statutestatute of limitations applied.applied. InIn response response to the complaint, thethe DistrictDistrict filed aa typical boiler-plateboiler-plate answeranswer includingincluding allall variety variety of of affirmative affirmative defenses, defenses, including including ones ones that that are are clearlyclearly inapplicableinapplicable onon thethe recordrecord beforebefore usus likelike uncleanunclean hands.hands. DespiteDespite thethe factfact thatthat thethe chargecharge was filed outside the six-month limitations period,period, thethe District did did not not opt opt to to filefile a a motion motion to to dismiss dismiss on on timelinesstimeliness grounds grounds toto trytry to to dispense dispense with with the the case case before before a a time-consumingtime-consuming hearing hearing on on the the merits. merits.

AtAt thethe two-daytwo-day formalformal hearing,hearing, thethe retaliation issue waswas fullyfully tried. BrownBrown put put on on nono evidenceevidence regardingregarding thethe timelinesstimeliness issue, issue, butbut thethe partiesparties generallygenerally areare instructedinstructed thatthat thethe mattersmatters toto bebe triedtried areare limited toto thosethose containedcontained in the complaint. AlthoughAlthough there there was was some some testimonytestimony atat thethe formalformal

5 TheThe exclusive exclusive representative representative has has equal equal knowledge, knowledge, but but is is not not a aparty party to to this this case. case.

1515 hearinghearing elicited elicited by by counsel counsel for for the the District District regarding regarding the the grievance grievance procedures procedures and and the the status status of of for thethe grievance,grievance, the entirety of whichwhich isis quotedquoted above,above, it isis unclearunclear whether it waswas offered for

backgroundbackground information,information, for for its its relevance relevance to to the the retaliation retaliation case case or or for for its its relevance relevance to to the the

timelinesstimeliness issue.issue. FromFrom a a purely purely pragmatic pragmatic standpoint, standpoint, we we appreciateappreciate thethe tensiontension underlyingunderlying

Brown'sBrown's question, question, "[if "[i]f Respondent Respondent believed believed there there was was a a valid valid issue, issue, why why would would the the parties parties have have

hadhad to wastewaste all ofof the the timetime withwith thethe hearing?"hearing?" BrownBrown is is not not pleading pleading for for sympathy, sympathy, as as the the

DistrictDistrict contends. contends. HeHe is is pleading pleading for for logic. logic.

StatutesStatutes of limitations "are'"are technical technical defenses defenses which which should should be be strictlystrictly construed construed to to avoid avoid

(Arlayna Samuels v. Terence J Mix th thethe forfeitureforfeiture ofof a a plaintiff's rights."" rights."' (Arlayna Samuels v. Terence J. Mix (1999) 2222 Cal.4Cal.4 1,1, 21,21, quotingquoting Steketee Steketee v. LintzLintz Williams && RothbergRothberg (1985)(1985) 3838 Cal.3dCal.3d 46, 56.) WhileWhile statutes statutes ofof limitationslimitations serve serve a a critical critical function function in in filtering filtering out out stale stale claims, claims, we we must must ensure ensure that that the the claimclaim is is

indeedindeed stalestale under the applicable standard. UnderUnder BoardBoard precedentprecedent governinggoverning statutorystatutory tolling,tolling,

where the grievant actively pursuespursues the grievance immediately following notice notice of of the the adverse adverse

16 action,n," thethe statute statute of of limitations limitations would would not not begin begin to to run run or or accrue accrue until until the the grievance grievance machinery machinery

hashas beenbeen exhausted andand thethe possibilitypossibility of a a remedyremedy via thethe grievancegrievance procedure foreclosed. AA

chargingcharging partyparty willwill not not be be precluded precluded from from proceeding proceeding on on an an untimely untimely charge charge if ifhe he or or she she has has

pursuedpursued a grievance throughthrough the grievance machinerymachinery inin good faith, and tolling willwill not not cause cause

surprisesurprise oror prejudiceprejudice toto thethe respondent.respondent. UntilUntil the the grievance grievance machinery machinery is is exhausted, exhausted, thethe

A grievanceA grievance is isconsidered considered "actively "actively pursued" pursued" during during the the time time in in which which·the the grievant grievant is is engagedengaged in efforts preparatorypreparatory toto filing,filing, e.g., e.g., making making contact contact and and meeting meeting with with the the exclusive exclusive representative,representative, investigatinginvestigating andand interviewinginterviewing witnesses, witnesses, preparingpreparing thethe grievancegrievance includingincluding necessarynecessary documentation, becausebecause such preparatorypreparatory efforts are "an inherent andand necessary part of (Los Angeles Unified School District aa complainant's pursuitpursuit ofof his his oror herher grievance."grievance." (Los Angeles Unified School District (1983)(1983) PERB Decision No. 311311 [statute[statute of limitations limitations tolled tolled where where the the grievantgrievant promptly promptly contacted contacted the the exclusiveexclusive representativerepresentative uponupon receivingreceiving notice notice of of adverse adverse action action and and grievance grievance was was submitted submitted withinwithin 15 15 workingworking days days from from receipt receipt of of notice notice pursuant pursuant to to the the contractual contractual grievance grievance procedure].)procedure].) Where,Where, however, during thethe time followingfollowing notice notice of of adverse adverse action,action, thethe chargingcharging partyparty isis notnot engagedengaged in effortsefforts "reasonably"reasonably related"related" to to thethe pursuitpursuit of of the the grievance grievance machinery machinery but but is is instead instead "sitting"sitting idly idly on on his his rights," rights," the the statute statute willwill not not be be tolled.tolled. (Ibid.;(Ibid.; California California School School Employees Employees AssociationAssociation (Spiegelman)(Spiegelman) (1984) PERBPERB Decision No. 400400 [statute[statute of limitationslimitations not not tolled tolled where where the grievant knewknew thethe exclusiveexclusive representative representative was was notnot pursuing pursuing the the grievance].) grievance].)

1616 respondentrespondent isis onon noticenotice thatthat thethe claimclaim is is still still alive alive and and should should therefore therefore take take whatever whatever steps steps

necessarynecessary toto preservepreserve documentsdocuments andand securesecure witnesses. SoSo longlong as as thethe grievancegrievance andand thethe later-later-

filedfiled unfair unfair practice practice charge charge raise raise thethe samesame issueissue and thethe unfairunfair practicepractice chargecharge is is filed filed withinwithin sixsix monthsmonths of of exhaustion exhaustion of of the the grievance grievance machinery, machinery, the the respondent respondent cancan claimclaim neitherneither prejudiceprejudice nor nor

surprise.surpnse.

Accordingly,Accordingly, wewe declinedecline to to adopt adopt the the ALJ's ALJ's proposed proposed dismissal dismissal and and instead instead order order the the

recordrecord re-openedre-opened for thethe takingtaking ofof further further evidenceevidence onon thethe statutorystatutory tolling issue.issue. (PERB(PERB 17 Reg.Reg. 32320, subdivisionsubdivision (a)(2).)(a)(2).)" IfIf ultimately ultimately Brown's Brown's complaint complaint and and charge charge are are dismissed dismissed on on

timelinesstimeliness groundsgrounds becausebecause thethe statutestatute of of limitations limitations isis not subject toto aa periodperiod ofof tollingtolling longlong

enoughenough to bring the filing ofof the the unfairunfair practice practice charge charge withinwithin the the six-monthsix-month limitationslimitations period, period, we we

18 willwill have have done done so so onon aa fullyfully developed developed evidentiary evidentiary record. record. 8

17 "TheThe District District is correctis correct that that only only those those matters matters contained contained in in the the record record of of the the case case maymay bebe referredreferred toto inin thethe statementstatement of exceptions. (PERB(PERB Reg.Reg. 32300, subd. (b).)(b).) WhileWhile BrownBrown stated stated thatthat hehe hashas documents relevant to the timeliness issue,issue, he neither identified themthem nornor discloseddisclosed theirtheir content.content. OurOur decision decision is is based based onon ourour reviewreview of of the the hearing hearing recordrecord andand determinationdetermination thatthat thethe evidentiaryevidentiary recordrecord isis inadequate,inadequate, not on any supposition aboutabout whatwhat particularparticular lightlight Brown's documentsdocuments maymay shed shed onon thethe tollingtolling issue. issue.

18 "ThisThis case case raises raises the the questionquestion whetherwhether thethe District shouldshould bebe equitably or judicially estoppedestopped from raisingraising thethe statutestatute ofof limitations limitations as as anan affirmativeaffirmative defense. defense. GivenGiven the the remand, remand, we we needneed not decide thisthis issue. Taking officialofficial notice notice of of the the case case file,file, wewe believe, believe, however,however, thisthis questionquestion deservesdeserves a comment. "Judicial"Judicial estoppel estoppel preventsprevents aa partyparty fromfrom assertingasserting aa position inin a a legallegal proceedingproceeding thatthat isis contrarycontrary to to a a position position previously previously taken taken in in the the same same or or some some earlier earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process." proceeding. The doctrine serves a clear purpose: to protectth the integrity of the judicial process." (Jackson(Jackson v.v. CountyCounty of Los AngelesAngeles (1997)(1997) 60 60 Cal.App.4 Cal.App.4" 171, 181181 [internal [internal citationscitations omitted].) omitted].) ItIt focusesfocuses on the relationship betweenbetween the litigant and and thethe judicialjudicial system system and and is is also also referredreferred to to as as thethe doctrine of preclusion preclusion of inconsistent inconsistent positions. ItIt may may bebe invokedinvoked toto "prevent"prevent aa partyparty fromfrom changingchanging itsits positionposition over over the the course course of of judicial judicial proceedings proceedings when when such such positional positional changes changes have have anan adverseadverse impact on the judicialjudicial process."process." (Id.(Id. at at pp. pp. 181-182.)181-182.) Equitable Equitable estoppel estoppel focuses focuses on on the relationship betweenbetween thethe partiesparties andand maymay bebe invokedinvoked toto preventprevent a a partyparty from from changing changing positionspositions wherewhere therethere has been reliancereliance on on that that party's party's priorprior positionposition and prejudiceprejudice wouldwould result if thethe court permitted the change in in position.position. (Id.(Id. atat p.p. 182.)182.)

InIn the the chargecharge processingprocessing andand investigation proceedingsproceedings before the Office ofof the the GeneralGeneral Counsel, the District arguedargued thatthat thethe unfairunfair practicepractice chargecharge was barred byby the statute ofof limitationslimitations butbut alsoalso arguedargued that Brown waswas attempting to adjudicate an "identical""identical" claimclaim in in two two different different

1717 2.2. OverturningOverturning Long Long Beach Beach IIII

TheThe DistrictDistrict is is correct correct that that under under Long Long Beach Beach II,II, supra,supra, PERBPERB DecisionDecision No. No. 20022002 and and its its

progeny, the burdenburden to establishestablish timelinesstimeliness hashas been placedplaced onon thethe chargingcharging party.party. EstablishingEstablishing

fora.fora. TheThe District District filed filed a aposition position statement statement under under penaltypenalty ofof perjury perjury onon MarchMarch 15,15, 2012, which states:

ShortlyShortly after after receiving receiving the the Notice Notice of of Non-Reelection, Non-Reelection, on on March March 14, 14, 2011,2011, Brown filedfiled aa grievancegrievance alleging that LAUSDLAU SD violatedviolated portionsportions ofof the the collectivecollective bargaining bargaining agreementagreement withwith UTLA byby issuingissuing BrownBrown a a belowbelow standard standard Stull Evaluation.Evaluation. (See(See ExhibitExhibit 2 2 BrownBrown GrievanceGrievance FormForm #2010-100189#2010-100189 attachedattached hereto.) ThisThis grievancegrievance isis currentlycurrently with with the the UTLA UTLA Grievance Grievance Review Review Committee. Committee. Brown'sBrown's non-reelection non-reelection became became effectiveeffective on on the the last last day day of of the the 2010-20112010-2011 schoolschool year. Brown'sBrown's Charge Charge isis essentiallyessentially identicalidentical toto hishis grievance grievance and, and, thus,thus, itit appears appears thatthat byby filingfiling the the instant instant Charge, Charge, BrownBrown isis simplysimply seeking seeking a a different different avenue avenue forfor his his complaints. complaints.

(Emphasis(Emphasis supplied.)supplied.)

ThisThis hintshints atat thethe possibilitypossibility that that the the DistrictDistrict did did not not consider consider the the grievance grievance machinerymachinery exhaustedexhausted or the possibility of of a a remedy remedy viavia the the grievancegrievance procedureprocedure foreclosed in thethe position it it tooktook before before thethe OfficeOffice of of the the General General Counsel. Counsel. ThatThat the the grievance grievance may may not not have have died died when when BrownBrown failed failed to to take take the the grievance grievance to to StepStep TwoTwo is is also also hintedhinted at at by by another another documentdocument inin thethe case case file, aa letterletter dateddated OctoberOctober 14,14, 2010 [sic] fromfrom thethe exclusiveexclusive representativerepresentative toto District FieldField DirectorDirector Dr. Dr. Howard Howard Saxe Saxe regarding regarding Grievance Grievance #2010-100189. #2010-100189. It Itstates states that that the the "above- "above- referencedreferenced matter has beenbeen referred referred to to your your office office underunder thethe provisions provisions ofof ArticleArticle V, SectionSection 8.08.0 ofof the the CollectiveCollective Bargaining Bargaining Agreement." Agreement." Because Because the the letter letter references references aa filingfiling date date forfor grievance grievance #2010-100189#2010-100189 ofof "03/14/11," "03/14/11," we we assume assume forfor purposes purposes ofof this this commentcomment thatthat thethe correctcorrect datedate ofof the the letterletter is is OctoberOctober 14, 14, 2011,2011, notnot 2010.2010. IfIf that that is is the the case, case, thethe unfairunfair practice practice chargecharge was filed approximately fourfour monthsmonths later.later.

We recognize that none of the foregoing is currently inin "evidence""evidence" and and therefore therefore cannot cannot be be consideredconsidered at this time forfor purposespurposes of determiningdetermining whetherwhether Brown'sBrown's unfair unfair practice practice charge charge is is timely.timely. It Itis, is, however, however, relevant relevant on on the the issue issue ofof judicial judicial and and equitable equitable estoppel, estoppel, whichwhich lookslooks at at contrarycontrary oror inconsistentinconsistent positions positions a a partyparty has has takentaken outside the proceedings inin question.question. ToTo the the extent the Office ofof the the GeneralGeneral CounselCounsel relied on the District's positionposition that that Brown'sBrown's grievance grievance "is"is currently with thethe UTLAUTLA Grievance Grievance ReviewReview Committee"Committee" inin applyingapplying thethe statutorystatutory tollingtolling exception to the statute ofof limitations andand issuingissuing the complaint, the District's arguably arguably contrarycontrary positionposition in in the the administrative administrative adjudication adjudication that that the the grievance grievance was was closedclosed oror withdrawnwithdrawn on on the the last last dayday BrownBrown had had the the opportunityopportunity to to appeal appeal the the Step Step One One denial denial to to Step Step Two Two raises raises some some concern. concern. We are ordering that the recordrecord bebe re-opened for thethe takingtaking ofof further further evidence evidence because because thethe better better choicechoice underunder thethe circumstancescircumstances is to allow thethe statutestatute of limitations defense defense toto bebe fully tried tried and and thethe evidentiary recordrecord fullyfully developed developed ratherrather thanthan deprivedeprive thethe District ofof its its timeliness timeliness defense defense basedbased on principles ofof estoppel. estoppel.

18 timelinesstimeliness isis consideredconsidered partpart ofof the the chargingcharging party'sparty's "prima"prima facie" facie" burden burden during during charge charge

processing as wellwell as duringduring the administrative adjudication ofof the the chargecharge following issuance issuance of of

thethe complaint.complaint. ForFor reasons reasons discussed discussed below,below, wewe departdepart fromfrom thatthat precedentprecedent with thisthis decision.decision.

A.A. THETHE EVOLUTION EVOLUTION OF OF BOARD BOARD PRECEDENT PRECEDENT

I.I. TheThe StatuteStatute of Limitations isis NotNot Jurisdictional;Jurisdictional; itit isis anan Affirmative Defense.Defense.

InIn Walnut Walnut Valley Valley Unified Unified School School District District (1983) (1983) PERB PERB Decision Decision No. No. 289289 (Walnut(Walnut Valley), Valley),

thethe Board cited well-establishedwell-established principlesprinciples ofof California California law law and and law law developed developed by by the the federalfederal

19 courtscourts and the NationalNational LaborLabor RelationsRelations Board Board under under the the National National Labor Labor Relations Relations Act Act (NLRA) (NLRA)

inin holdingholding that that the the statutestatute ofof limitations limitations is is not not jurisdictional, jurisdictional, but but rather rather a a personal personal privilegeprivilege that that

mustmust bebe affirmatively invoked invoked by by appropriate appropriate pleading.pleading. AsAs anan affirmativeaffirmative defense, defense, if it it isis not not

raisedraised inin aa timely fashion,fashion, itit isis waived.waived. ThisThis viewview of of the the statutestatute of limitationslimitations asas an affirmativeaffirmative

defensedefense prevailedprevailed until atat least 1987. (See(See CaliforniaCalifornia StateState University, Hayward (1987)(1987) PERBPERB

DecisionDecision No.No. 607-H.)607-H.)

II. TheThe Statute Statute of of Limitations Limitations is is Jurisdictional; Jurisdictional; it it is is Not Not an an AffirmativeAffirmative Defense. Defense.

InIn LakeLake ElsinoreElsinore SchoolSchool District (1987) (1987) PERBPERB DecisionDecision No.No. 646646 (EERA) andand California

20 StateState University,University, SanSan Diego (1989) PERB Decision No. 718-H (HEERA),"the(HEERA), the Board Board reversed reversed itselfitself concluding concluding that that the the statute statute ofof limitations limitations is is a a jurisdictional jurisdictional bar bar to to charges charges filedfiled outside outside the the

six-month limitationslimitations period. period. The The Board Board reasoned reasoned that that because because the statute "prohibits""prohibits" PERBPERB fromfrom issuingissuing a a complaint complaint concerning concerning conduct conduct occurring occurring over over six six months months before before thethe filingfiling of of the the charge, charge,

thethe BoardBoard wouldwould actact inin excessexcess of its jurisdictionjurisdiction ifif it it were were to to do do so. so. Addressing Addressing the the respondent's respondent's

"burden,""burden," thethe BoardBoard held:held:

While procedurallyprocedurally it it is is appropriate appropriate to to have have the the respondentrespondent callcall toto thethe Board's attentionattention thatthat thethe charge waswas notnot timelytimely filed, itsits failurefailure

19 19 TheThe NRLANRLA isis codifiedcodified at at 29 29 U.S.C. U.S.C. section section 151 151 et et seq. seq.

20 20 TheThe HigherHigher EducationEducation Employer-EmployeeEmployer-Employee RelationsRelations ActAct (HEERA) isis codifiedcodified at at sectionsection 35603 560 etet seq.seq.

1919 toto dodo soso cannotcannot bebe usedused asas a basis forfor expanding the Board's jurisdiction.jurisdiction.

InIn support support of of its its conclusion conclusion that that the the statute statute ofof limitations limitations constitutes constitutes a a jurisdictionaljurisdictional bar, bar,

thethe BoardBoard reasonedreasoned that thethe threatthreat ofof disruption of collective collective bargainingbargaining relationships relationships isis prolongedprolonged

when the timetime duringduring whichwhich an an unfair unfair practice practice charge charge maymay bebe assertedasserted isis extended. According to to

thethe Board,Board, viewingviewing the the statute statute ofof limitations limitations as as anything anything but but an an absoluteabsolute barbar isis antitheticalantithetical toto the the

goalgoal ofof promoting promoting harmonious harmonious labor labor relations. relations.

III.III. EstablishingEstablishing Timeliness Timeliness of of the the Charge Charge is is PartPart ofof Charging Charging Party's Party's Prima Prima Facie Facie Burden.

InIn Regents Regents ofof the the UniversityUniversity ofof California California (1990) (1990) PERB PERB DecisionDecision No. No. 826-H,826-H, thethe BoardBoard

held,held, "we"we agree agree withwith the the ALJALJ that that as as aa resultresult ofof California California State State University,University, San San Diego, Diego, the the burden burden

isis onon thethe chargingcharging partyparty toto showshow timelinesstimeliness asas partpart ofof its its primaprima facie facie cae."cae." (Regents(Regents ofof the the

UniversityUniversity ofof California, California, supra, supra, PERBPERB DecisionDecision No.No. 826-H,826-H, p. 5, fn. 6.) TheThe ALJ,ALJ, however,however, explainedexplained the the burdenburden distributiondistribution asas follows:follows:

Even if [the [the statutestatute of limitations]limitations] were were stillstill considered considered an an affirmativeaffirmative defense, defense, it itwould would be be concluded concluded that that once once Respondent Respondent has has properlyproperly raised raised that that defense, defense, and and established established thatthat the the allegedalleged [conduct][conduct] tooktook place place outside outside the the six-month six-month period, period, the the burden burden would would shiftshift to to thethe [union][union] to to establish establish that that it it did did not not learn learn of of the the change change oror thethe reasonsreasons thereforetherefore untiluntil a date withinwithin the six-month period,period, oror thatthat the statutestatute should bebe tolled.tolled.

(Id., (Id., proposedproposed decision,decision, atat p.p. 27.)27.)

TheThe Board concluded that "[a]s"[als a jurisdictional matter,matter, it isis clearlyclearly thethe [union's][union's] burden burden to to

establishestablish timelinesstimeliness asas part of its prima faciefacie case."case." WhatWhat thisthis meantmeant inin practicalpractical termsterms waswas thatthat

the statute of limitations limitations need need not not be be raised raised by by the the respondent respondent in in order order to to preserve preserve it it as as an an issue issue

forfor trial.trial. It Itcould could not not be be waived waived by by the the parties. parties. ThisThis view view of of the the statute statute ofof limitations limitations as as aa jurisdictionaljurisdictional bar, bar, not not capable capable of of being being waived waived by by the the parties parties andand alsoalso partpart ofof charging charging party'sparty's

primaprima faciefacie burdenburden prevailedprevailed until until 2003. 2003.

2020 IV.IV. TheThe Statute Statute of ofLimitations Limitations is isNot Not Jurisdictional: Jurisdictional; it itis is an an Affirmative Affirmative Defense. Defense.

InIn Long Long Beach Beach CommunityCommunity CollegeCollege DistrictDistrict (2003) (2003) PERB PERB Decision Decision No. No. 1564 1564

(LongLong Beach Beach D),I), the Board reversed itselfitself again. TheThe timelinesstimeliness issueissue was raised inin thethe contextcontext ofof

aa tollingtolling argument.argument. AA byproduct byproduct of of characterizing characterizing the the statutestatute of limitationslimitations asas a jurisdictionaljurisdictional bar bar

waswas thethe eliminationelimination of of the the doctrinedoctrine ofof equitable equitable tolling.tolling. In In Long Long Beach Beach I, I,the the Board Board reinstated reinstated the the

equitableequitable tollingtolling doctrine doctrine and, and, inin so so doing,doing, returnedreturned toto thethe viewview that that thethe statutestatute of limitationslimitations is is notnot jurisdictional, jurisdictional, but but an an affirmative affirmative defense defense that that can can be be waived. waived.

The Board stated thatthat thethe LegislatureLegislature "fully"fully intendedintended toto modelmodel EERA,EERA, andand itsits relatedrelated

Acts,"Acts," after after the the NLRA.NLRA. As As the the Board Board stated, stated, "[als "[a]s the the statute statute ofof limitations limitations under under thethe NLRANLRA has has

longlong beenbeen heldheld notnot toto bebe jurisdictional, the the BoardBoard believes believes thatthat thethe LegislatureLegislature intendedintended a similar rulerule under under EERA."EERA." The The Board Board compared compared the the operativeoperative languagelanguage ofof EERAEERA with the NLRA, whichwhich

showsshows substantial similarity. EERAEERA section section 3541.5, 3541.5, subdivisionsubdivision (a)(1) (a)(l) provides provides thatthat thethe BoardBoard

shallshall not:not:

IssueIssue aa complaint in in respect respect of of any any charge charge based based upon upon an an allegedalleged unfairunfair practicepractice occurringoccurring moremore than six monthsmonths priorprior toto thethe filingfiling of thethe charge.charge.

SectionSection 10(b)I0(b) of the the NLRA, by by comparison, comparison, provides: provides:

Provided, ThatThat nono complaintcomplaint shall shall issue issue basedbased uponupon any unfair laborlabor practicepractice occurring moremore than six months priorprior to the filingfiling ofof the the charge with thethe Board. Board.

TheThe BoardBoard observedobserved thatthat inin interpretinginterpreting section section 10(b),10(b ), thethe NLRBNLRB has has long long held held that that the the statutestatute ofof limitations limitations is is not not jurisdictional, jurisdictional, but but is isan an affirmative affirmative defense defense that that must must be be timely timely raised raised inin thethe answeranswer oror itit isis waived.waived. TheThe Board Board also also disagreeddisagreed with thethe analysisanalysis in California State State

University,University, SanSan Diego,Diego, supra,supra, PERBPERB DecisionDecision No. No. 718-H, 718-H, discussed discussed above,above, onon itsits twotwo mostmost

fundamentalfundamental points. AccordingAccording to to the the Board Board in in Long Long Beach Beach I, I, supra, supra, PERB PERB Decision Decision No. No. 1564, 1564,

thethe word "shall" does does notnot necessarilynecessarily mean "mandatory.""mandatory." Also,Also, interpretinginterpreting thethe statutestatute of

2121 limitationslimitations as as jurisdictional jurisdictional discourages discourages the the use use ofof bilaterally bilaterally agreed-upon agreed-upon grievance grievance procedures procedures

andand thereforetherefore isis notnot soundsound publicpublic policy.policy.

V. NotwithstandingNotwithstanding that that the the StatuteStatute of Limitations isis anan Affirmative Defense.Defense, it isis StillStill ChargingCharging Party's Party's Initial Initial Burden Burden at at the the Charge Charge InvestigationInvestigation StageStage toto AllegeAllege FactsFacts SufficientSufficient to to Establish Establish Timeliness ofof the the Charge.Charge.

InIn SEIU SEIU Local Local 1000 1000 (George) (George) (2008)(2008) PERB PERB Decision Decision No. No. 1984-S, 1984-S, the the Board Board agent agent statedstated

inin thethe dismissaldismissal letter letter that that "charging "charging party party bears bears the the burden burden of of demonstrating demonstrating that that the the charge charge is is

timelytimely filed."filed." TheThe Board Board provided provided thethe following clarification:clarification:

The Board agent'sagent's dismissaldismissal appearsappears toto suggestsuggest that aa chargingcharging party'sparty's burden burden to to allege allege facts facts to to establish establish the the timeliness timeliness of of a acharge charge at the investigative stage stage arises arises only only after after a arespondent respondent has has raised raised the the statutestatute ofof limitations limitations as as anan affirmativeaffirmative defense. defense. However,However, the the Board Board hashas longlong heldheld thatthat inin order order to to state state a a primaprima facie facie case, case, aa chargingcharging partyparty mustmust allegeallege sufficientsufficient facts facts to to demonstrate demonstrate that that the the chargecharge isis timely filed.filed. (Tehachapi(Tehachapi Unified Unified School School District District (1993) (1993) PERB PERB Decision No. 1024;1024; StateState of California (Department (Department of of Insurance)Insurance) (1997) PERB Decision No. 1197-S.)1197-S.)

VI.VI. TheThe StatuteStatute of Limitations isis notnot JurisdictionalJurisdictional butbut it isis NotNot aa "True""True" Affirmative Defense. Defense.

LongLong BeachBeach II, supra,supra, PERBPERB DecisionDecision No.No. 2002,2002, affirmedaffirmed thethe holdingholding in in Long Long Beach Beach I Ithat that

thethe statutestatute of limitations isis notnot jurisdictional. InIn a a section section of of the the decisiondecision entitledentitled "Type"Type ofof

Defense," the Long Beach II Board,Board, however,however, disagreeddisagreed with thethe statementstatement in Long Beach I thatthat

thethe statute ofof limitations "must"must bebe raisedraised as anan affirmative affirmative defense."defense." The statute oflimitationsof limitations "is"is notnot a a true true affirmativeaffirmative defense defense but but instead instead anan elementelement ofof the the chargingcharging party'sparty's prima prima facie facie case." case."

LongLong BeachBeach II reviewed reviewed CodeCode ofof Civil Civil Procedure Procedure sectionsection 431.30(b)431.30(b) governinggoverning thethe twotwo

typestypes ofof defenses defenses thatthat maymay bebe raised in an answer toto a complaint,complaint, one of whichwhich isis thethe affirmativeaffirmative

defense, recognizing that an affirmative defense defense absolvesabsolves a defendant of liability even even if if the the

plaintiffplaintiff has has proven proven all all of of the the necessary necessary elementselements of its claim. InIn so so doing, doing, an an affirmativeaffirmative defense defense raisesraises aa newnew mattermatter extraneousextraneous to the prima faciefacie case.case. TheThe BoardBoard acknowledgedacknowledged thatthat in in most most

civil actions, actions, timelinesstimeliness isis notnot partpart ofof the the plaintiff'splaintiff's prima prima facie facie case case andand thereforetherefore the plaintiff

22 does notnot have toto pleadplead timelinesstimeliness inin its complaint. InIn such such cases,cases, the statute ofof limitations isis an an

affirmativeaffirmative defense defense thatthat the the defendantdefendant mustmust pleadplead inin itsits answeranswer andand proveprove byby aa preponderancepreponderance ofof

the evidence.evidence.

UnlikeUnlike mostmost civilcivil actions, actions, LongLong Beach Beach IIII explained explained thatthat "timeliness"timeliness isis partpart ofof the the chargingcharging

party's primaprima facie facie casecase inin PERBPERB unfairunfair practicepractice proceedings."proceedings." LongLong Beach Beach IIII held: held:

AsAs aa result,result, thethe statutestatute of limitationslimitations is is not not a a true true affirmative affirmative defense defense becausebecause it negatesnegates an element of the the primaprima facie facie case case ratherrather than than establishingestablishing a a defense defense basedbased onon mattersmatters outsideoutside thethe primaprima facie facie case. case.

(Emphasis supplied.)

LongLong Beach Beach IIII viewed viewed Long Long Beach Beach II as as restoringrestoring thethe rulerule inin WalnutWalnut Valley,Valley, supra,supra, PERBPERB

DecisionDecision No. No. 289, 289, whichwhich "appears "appears to to have have changedchanged PERB's priorprior practice practice regarding regarding thethe statutestatute of of

limitations."limitations." This This characterization characterization of of the the Board's Board's "prior "prior practice" practice" is is based based onon thethe failure of the the

Board inin SanSan Diegueto,Dieguito, supra, PERB Decision No.No. 194194 toto mentionmention anything anything about about the the respondent respondent havinghaving the the burden burden to to proveprove that that the the chargecharge waswas untimely filed.filed. BasedBased on on that that omission omission alone, alone, the the

Board declared,declared, "Thus, beforebefore WalnutWalnut Valley,Valley, PERB PERB seems seems toto havehave requiredrequired thethe chargingcharging partyparty to to proveprove timeliness timeliness as as partpart of of its its prima prima facie facie case case atat hearing."hearing." The The Board Board stated: stated:

TheThe Board'sBoard's restorationrestoration ofof the the WalnutWalnut Valley Valley rule rule in in Long Long Beach Beach CCD II hashas createdcreated aa systemsystem where PERB considersconsiders timelinesstimeliness part part ofof the the primaprima facie facie case case atat thethe chargecharge stage,stage, butbut onceonce aa complaintcomplaint issuesissues itit isis no longer part ofof the the primaprima facie facie case case butbut instead instead an an affirmativeaffirmative defense defense that that the the respondent respondent must must raise raise in in its its answer answer and and prove byby aa preponderance ofof the evidence atat hearing.hearing. ThisThis shiftingshifting of the burden of proof onon timelinesstimeliness isis contrarycontrary toto thethe Legislature'sLegislature's allocation ofof the the burdenburden ofof proof proof in in civil civil proceedings proceedings as as setset forthforth in in EvidenceEvidence CodeCode sectionsection 500,500, whichwhich states states thatthat "a"a party party has has thethe burdenburden of proof proof as as toto eacheach factfact thethe existenceexistence oror nonexistencenonexistence ofof which which is is essentialessential to the claim for reliefrelief or or defensedefense that he is asserting." TheThe LawLaw RevisionRevision Commission Commission Comment Comment states states that that Evidence Evidence Code Code section 500 follows thethe basicbasic rulerule "that"that whatever whatever factsfacts aa partyparty mustmust affirmativelyaffirmatively plead plead he he alsoalso hashas thethe burden of proving."

Because thethe currentcurrent Walnut Valley schemescheme is contrary toto thisthis fundamentalfundamental principle, wewe overruleoverrule WalnutWalnut Valley Valley and and its its progeny, progeny, includingincluding Long Long Beach Beach CCD CCD I, I, to to the the extent extent those those cases cases hold hold that that the the respondent bears bothboth thethe burdenburden ofof pleading thethe statutestatute of

23 limitationslimitations as as anan affirmativeaffirmative defense defense inin itsits answeranswer andand thethe burden of provingproving atat hearinghearing thatthat thethe chargecharge was untimely. PERB'sPERB' sapproach approach beforebefore WalnutWalnut Valley, Valley, as as exemplifiedexemplified in in San San Diegueto, Dieguito, was was consistent with EvidenceEvidence Code Code section section 500 500 because because itit required required the the chargingcharging party party to to prove prove at at hearing hearing what what it italleged alleged in in its its charge. charge. Accordingly, wewe holdhold that that thethe chargingcharging partyparty bearsbears the burden of provingproving by by a a preponderance preponderance ofof the the evidenceevidence that the charge was filedfiled withinwithin the the six-monthsix-month statute statute of limitationslimitations period.period.

(Fns.(Fns. omitted.)omitted.)

B. THETHE STATUTE STATUTE OF OF LIMITATIONSLIMITATIONS UNDER UNDER THE THE NLRA NLRA

UnderUnder thethe NLRA, thethe statutorystatutory provisionprovision settingsetting outout aa six month filing periodperiod isis consideredconsidered a statute ofof limitationslimitations rather thanthan aa jurisdictional jurisdictional bar. AsAs statedstated by thethe NLRBNLRB inin

ChicagoChicago RollRoll FormingForming Corp Corp (1967) (1967) 167 167 NLRBNLRB 961, 961,971: 971:

[T]he provisoproviso toto SectionSection 10(b)10(b) ofof the the ActAct isis aa statutestatute of limitations,limitations, and is not jurisdictional.jurisdictional. ItIt is is an an affirmative affirmative defense, defense, andand ifif not not timelytimely raised, raised, isis waived.waived. The The Respondent Respondent Employer Employer had had adequate adequate opportunity toto raiseraise it,it, butbut hashas declineddeclined toto dodo so.so. ItIt has has waivedwaived this this procedural defense, and has electedelected toto defenddefend onon thethe merits.merits. ForFor these reasons,reasons, thethe complaintcomplaint isis valid against against the the Respondent Respondent Employer,Employer, andand isis notnot barred barred byby thethe SectionSection 10(b) 10(b) proviso. proviso.

(Fns. omitted.) AsAs stated stated byby the the courtcourt in in NLRB NLRB v. v. A.E.A.E. NettletonNettleton Co. Co. (1957)(1957) 241 241 F.2dF.2d 130, 130, 133: 133:

[T]he[T]he ProvisoProviso doesdoes notnot imposeimpose a jurisdictionaljurisdictional limitationlimitation upon upon the the Board,Board, but isis aa statute ofof limitations. ThatThat a a statute statute ofof limitations limitations maymay bebe waived isis elementary.elementary. NoNo extraordinary extraordinary circumstances circumstances toto excuseexcuse its waiver appearappear in the record. WeWe cannotcannot sustain sustain thethe contention thatthat proceduralprocedural defectsdefects requirerequire aa dismissal,dismissal, remand,remand, oror modification ofof the the Board'sBoard's order.order.

C.C. THETHE STATUTE STATUTE OF OF LIMITATIONSLIMITATIONS AND AND THE THE BURDEN BURDEN OF OF PROOF PROOF UNDERUNDER CALIFORNIA LAW

1 Burden ofofproof proof"2 encompassesencompasses twotwo burdens,burdens, the primary burden of proving aa particular fact and thethe secondarysecondary burden burden of of initially initially goinggoing forwardforward withwith evidence. (1 Witkin, Cal.Cal. EvidenceEvidence

21 AsAs defined inin aa treatisetreatise onon evidence:evidence:

"Proof''Proof is is an an ambiguous ambiguous word. word. We We sometimes sometimes use use itit toto meanmean evidence,evidence, suchsuch asas testimony or documents.documents. SometimesSometimes when when we we say say aa thingthing isis "proven"proven we we mean mean that that we we are are convincedconvinced by by the the data data

2424 th (5th(5 ed. 2012) Burden ofof Proof Proof and and Presumptions,Presumptions, $§ 1,1, p.p. 174.)174.) EvidenceEvidence Code Code section section 1 11010 to describesdescribes thethe secondarysecondary burdenburden asas "the "the obligationobligation of a party to introduce evidence sufficient to

avoidavoid aa rulingruling against against him him on on the the issue." issue." Evidence Evidence Code Code section section 500 500 describes describes the the primary primary

burden,burden, alsoalso referredreferred to to asas thethe burdenburden ofof persuasion, persuasion, as thethe "obligation"obligation of of the the party party to to establish establish by by

evidence a requisiterequisite degree ofof beliefbelief concerning a factfact inin the mind of the trier ofof fact fact oror the the court." court."

PERBPERB RegulationRegulation 32178,32178, whichwhich establishes establishes the requisite degree ofof proofproof required in unfair

complaint by a preponderance practice cases, providesprovides that,that, "[t]he"[the charging charging partyparty shall shall prove prove the the complaint by a preponderance 22 ofof the the evidence evidence in in order order to to prevail."22 prevail. "

RegardingRegarding thethe allocationallocation ofof the the burdenburden ofof proof, proof, the the basicbasic rulerule isis thatthat "whatever "whatever facts facts a a

partyparty mustmust affirmativelyaffirmatively plead, plead, thethe partyparty alsoalso has thethe burden burden of of proving." proving." (1( 1 Witkin, Cal.Cal. th EvidenceEvidence (5"( 5 ed.ed. 2012)2012) Burden Burden of of Proof Proof and and Presumptions, Presumptions, $§ 6,6, p.p. 177.)177.) AsAs described described in in a atreatise treatise

on evidence:

InIn mostmost cases,cases, thethe party who has thethe burdenburden ofof pleading a factfact will have the burdens of producing evidenceevidence andand ofof persuading persuading thethe juryjury ofof its its existenceexistence asas well. TheThe pleadings pleadings thereforetherefore provideprovide thethe commoncommon guideguide for apportioningapportioning thethe burdenburden of proof. proof.

th (2(2 Mccormick,McCormick, Evidence Evidence (7" (7 ed.ed. 2013) 2013) Burden Burden of of Proof Proof and and Presumptions, Presumptions, $ § 337, 337, p. p. 645.)645.)

AtAt the the outset outset ofof a a case,case, the secondary burdenburden of of initially initially goinggoing forwardforward withwith evidence evidence

coincidescoincides withwith the the primaryprimary burdenburden ofof proof proof or or persuasion. persuasion. (Evid.(Evid. Code, Code, $§ 550,550, LawLaw RevisionRevision

CommissionCommission Comments.)Comments.) TheThe party party having having the the burden burden of of proof proof must must offer offer evidence evidence so so that that the the

triertrier may may have have aa basisbasis for finding inin his his favor.favor. (9(9 Wigmore, Wigmore, Evidence Evidence (Chadbourne (Chadbourne ed. ed. 1981)1981)

$§ 2487,2487, p.p. 293.)293.) DuringDuring the the course course of of trial, trial, the the secondary secondary burden burden ofof going going forward forward with with evidence evidence

submittedsubmitted that the alleged fact is true. Thus,Thus, "proof""proof' is is the the end end resultresult ofof conviction conviction or or persuasion persuasion produced produced by by the the evidence. evidence.

(2 Mccormick,McCormick, Evidence Evidence (7" (ih ed. ed. 2013) 2013) Burden Burden of of Proof Proof and and Presumptions, Presumptions,§ $ 336, 336, p. p. 644.)644.)

22 22 Proof byby aa preponderance of the evidence requires aa partyparty toto convince the trier ofof fact fact thatthat thethe existenceexistence ofof a a particular factfact isis moremore probableprobable thanthan itsits nonexistence.nonexistence. (Evid.(Evid. Code, Code, $ §500, 500, LawLaw Revision Revision Commission Commission Comments.) Comments.)

2525 maymay shiftshift from from one one party party to to another, another, "irrespective"irrespective of of the the incidence incidence ofof the the burdenburden ofof proof." proof." Rancho Santa Fe Pharmacy, Inc. v. (Evid.(Evid. Code,Code,§ $ 550,550, LawLaw Revision Revision Commission Commission Comments; Comments; Rancho Santa Fe Pharmacy, Inc. v.

SeyfertSeyfert (1990)(1990) 219219 Cal.App.3dCal.App.3d 875, 875, 880.) 880.)

TheThe allocationallocation of of the the primary primary burden burden of of proof proof is is described described in in Evidence Evidence Code Code section section 500, 500,

whichwhich provides:provides: "Except"Except as as otherwise otherwise provided provided by by law, law, a aparty party has has the the burden burden of of proof proof as as to to each each

factfact thethe existenceexistence or nonexistencenonexistence of which isis essentialessential to the claim for reliefrelief or or defense defense thatthat he he isis

asserting."asserting." UnderUnder Evidence Evidence Code Code sectionsection 500,500, thethe burdenburden of proof proof as as toto aa particular factfact "is"is normallynormally on on the the party party to to whose whose case case thethe fact isis essential."essential." (Evid.(Evid. Code, Code, $ § 500, 500, LawLaw Revision Revision

Commission Comments.)Comments.)

TheThe allocationallocation ofof the the burden burden of of proof proof sometimes sometimes varies varies from from the the general general rule rule described described

above.above. InIn determining determining whether whether the the normal normal allocation allocation of of the the burden burden of of proof proof should should be be altered, altered,

courtscourts considerconsider the following factors:factors:

[The[T]he knowledge knowledge of of the the parties parties concerning concerning the the particular particular fact, fact, the the availabilityavailability of of the the evidence evidence to to the the parties, parties, the the most most desirable desirable resultresult inin termsterms ofof public public policy policy in in the the absence absence ofof proof proof of of the the particularparticular fact, fact, andand thethe probabilityprobability of of the the existence existence oror nonexistence nonexistence ofof the the fact.fact.

(Evid.(Evid. Code,Code, $§ 500,500, LawLaw Revision Revision Commission Commission Comments.) Comments.)

"As"As a a general general rule,rule, the the burden burden is is on on the the defendant defendant to to prove prove new new matter matter alleged alleged as as a a defense defense (Wilson v. California Cent. R.R. [citations][citations] eveneven thoughthough itit requiresrequires thethe proof of a a negative." (Wilson v. California Cent. R.R. 23 (1892)(1892) 94 Cal. 166, 172.) The statute ofof limitationslimitations isis oneone suchsuch defense defense or or "new "new matter." matter." ItIt is is

th consideredconsidered a personal privilegeprivilege that is waived if not not timelytimely raised. raised. (5(5 Witkin, Witkin, Cal. Cal. Procedure Procedure (5th (5

ed.ed. 2008)2008) StatuteStatute of Limitations, $§ 1117,1117, p.p. 543.)543.) UnderUnder CaliforniaCalifornia law, law, "a "a defendant defendant must must prove prove (Arlayna Samuels v. Terence J. factsfacts necessarynecessary toto enjoyenjoy the benefit of a statute ofof limitations." (Arlayna Samuels v. Terence J. Mix, supra, th Mix, supra, 2222 Cal.4"Cal.4 1,1, 10.)10.)

25 "The statementstatement ofof any any newnew mattermatter inin the the answer, answer, inin avoidance avoidance or or constituting constituting a adefense, defense, shall, on the trial, bebe deemeddeemed controverted by the oppositeopposite party."party." (Code(Code Civ.Civ. Pro., Pro.,§ $ 413.20, 413.20, subd.subd. (b).)(b).)

2626 Thus,Thus, inin aa civilcivil action, action, the the defendant defendant has has thethe burdenburden toto demurdemur toto thethe complaintcomplaint on on the the defense in the groundsgrounds ofof statute statute ofof limitations limitations or or to to plead plead statute statute ofof limitations limitations as as an an affirmative affirmative defense in the 24 Inc. answer."Inanswer. Inaddition, addition, the the defendant defendant has has the the burden burden of of proof. proof. (Rancho (Rancho Santa Santa Fe Fe Pharmacy,Pharmacy, Inc. v. Seyfert, supra, 875, 880.) v. Seyfert, supra, 219219 Cal.App.3dCal.App.3d 875, 880.)

TheThe policy ofof handicapping handicapping aa disfavoreddisfavored contentioncontention probablyprobably accountsaccounts forfor thethe requirementrequirement thatthat thethe defendantdefendant generallygenerally hashas allall threethree burdensburdens [pleading,[pleading, producingproducing evidence evidence and and persuading persuading the the triertrier ofof fact] fact] withwith regard regard to to such such matters matters asas ...... statutestatute of limitations ......

(2 Mccormick,McCormick, Evidence Evidence (7" (th ed. ed. 2013) 2013) Burden Burden of of Proof Proof and and Presumptions, Presumptions,§ $ 337, 337, p. p. 649.)649.)

D.D. ANALYSISANALYSIS

ALJsALJ s andand litigantslitigants in in PERB PERB proceedings proceedings areare placedplaced inin aa confusingconfusing bindbind onon thethe statutestatute ofof

limitationslimitations issue issue by by the the questionquestion leftleft unanswered unanswered inin LongLong BeachBeach II, supra,supra, PERBPERB DecisionDecision

No.No. 2002.2002. IfIf the the statute statute of of limitations limitations is is not not a a "true" "true" affirmative affirmative defense, defense, if if it itneed need not not be be raised raised

byby thethe respondentrespondent as anan affirmativeaffirmative defense,defense, and if charging charging partyparty carriescarries thethe burdenburden ofof proof, proof,

thenthen whatwhat kindkind ofof defense defense is it?it?

ItIt isis longlong settled settled that that the the statutestatute of limitations limitations is is not not a a jurisdictional jurisdictional bar bar to to an an untimely untimely

Long Beach II unfairunfair practicepractice charge.charge. Long Beach II did nothing to disturb that rulerule ofof law.law. FurtherFurther reflection onon thatthat issueissue isis notnot warranted.warranted. WeWe focus focus instead instead on on the the allocationallocation of of the the burden burden of of proof proof on on the the

statutestatute of limitations issue. issue. InIn concluding concluding that that the the statute statute of of limitations limitations under under PERB PERB law law is is not not a a

truetrue affirmativeaffirmative defense, defense, the the Board Board in in Long Long Beach Beach II II created created a atension tension between between our our understanding understanding

ofof the the statutestatute ofof limitations limitations as as a a defense defense toto anan unfairunfair practice practice charge charge andand ourour understandingunderstanding ofof

Long Beach II chargingcharging party'sparty's primaprima facie facie burden.burden. ThatThat Long Beach II depositeddeposited this this tension tension into into the the state state of of

the law isis demonstrateddemonstrated by thethe factfact thatthat respondents,respondents, like thethe DistrictDistrict here, here, continuecontinue to to raiseraise the the

" TThehe answer answer to to a a complaint complaint shall shall contain contain general general oror specific specific denials denials ofof the the material material allegationsallegations ofof the the complaintcomplaint controverted controverted by by the the defendant defendant and and a a statement statement ofof any any newnew matter matter constitutingconstituting a a defense.defense. (Code(Code Civ. Civ. Proc., Proc., $ § 431.30, 431.30, subd. subd. (b).)(b ).)

27 statutestatute ofof limitations limitations as as an an affirmativeaffirmative defense defense in in the the answer answer toto aa complaintcomplaint even even thoughthough LongLong

BeachBeach II relieved relieved respondents respondents ofof that that pleadingpleading burden.burden.

InIn Long Long Beach Beach II, II, the the Board Board failed failed to to take take into into consideration consideration a a material material difference difference between between

civilcivil actions actions and and unfairunfair practice practice charges.charges. InIn civilcivil actions, actions, there there areare typicallytypically two two parties parties and and a a triertrier

ofof fact. fact. InIn unfair unfair practice practice charge charge proceedings, proceedings, there there are are alsoalso twotwo partiesparties andand aa triertrier ofof fact, fact, but but the the rolerole of of the the OfficeOffice of of the the General General CounselCounsel is pivotal. UnderUnder the the statutorystatutory framework,framework, itit isis thethe

OfficeOffice of of the the General General CounselCounsel whowho isis prohibitedprohibited from from issuing issuing a a complaint complaint based based onon conductconduct

outsideoutside the six-month limitationslimitations period.period. ItIt is is the the Office Office of of the the General General Counsel Counsel whose whose responsibilityresponsibility it itis isto to determine determine whether whether the the charge charge should should be be dismissed dismissed based based on on timeliness timeliness

grounds.grounds.

The primary wayway inin which which the the statute statute of of limitations limitations has has come come to to be be viewed viewed as as thethe chargingcharging party'sparty's burden, burden, even even though though itsits relevance relevance underunder thethe statutorystatutory schemescheme is purely limited toto PERB'sPERB's authorityauthority to to issue issue a a complaint,complaint, isis throughthrough the the bundlingbundling of of the the timeliness timeliness issue issue withwith the the primaprima facie facie case.case. TheThe prima prima facie facie elements elements of of an an unfair unfair practice practice charge charge and and the the timeliness timeliness of of that that charge charge are are

distinct inin conceptconcept andand purpose.purpose. TheThe untimelinessuntimeliness ofof a a chargecharge is a proceduralprocedural defect,defect, whichwhich if

proven allows thethe respondentrespondent toto escape liability liability notwithstanding the merits of the charge. TheThe

elements ofof the prima facie case speakspeak to to the the merits merits of of thethe unfairunfair practicepractice charge,charge, which which ifif proven allowsallows thethe chargingcharging partyparty toto seekseek aa remedy to right aa particular wrong.wrong. ThatThat the the prima prima facie facie case case andand thethe timelinesstimeliness issueissue areare conceptuallyconceptually distinct distinct and and separate separate isis recognizedrecognized in in PERB PERB

RegulationRegulation 32620,32620, subdivisionsubdivision (b)(4), (b )( 4 ), which which describes describes the the power power and and dutiesduties ofof the the Board Board agent agent in in

the processing ofof an unfairunfair practice charge.charge. It provides,provides, inin pertinentpertinent part:part:

(b)(b) TheThe powerspowers andand dutiesduties ofof such such BoardBoard agent agent shallshall be be to:to:

(4) MakeMake inquiriesinquiries and and reviewreview the the charge charge andand anyany accompanyingaccompanying materials toto determinedetermine whetherwhether an an unfairunfair practice practice has has been, been, oror is is being,being, committed,committed, and and determine determine whether whether the the charge charge is is subject subject to to deferral toto arbitration,arbitration, oror to to dismissal dismissal for for lack lack of of timeliness. timeliness.

2828 two InIn processing processing aa charge,charge, the Office ofof the the GeneralGeneral CounselCounsel typicallytypically determines determines atat leastleast two

fundamentalfundamental issues:issues: (1)(1) whetherwhether thethe chargingcharging partyparty hashas setset forth thethe primaprima faciefacie elementselements ofof an an unfairunfair practice practice charge charge withwith sufficient sufficient factual factual specificity specificity and and supporting supporting evidence; evidence; andand (2)(2) whetherwhether

thethe charge waswas timelytimely filed withinwithin the the six-monthsix-month limitationslimitations period period or or whether whether one one ofof the the manymany a complaint, it non-statutorynon-statutory exceptions exceptions applies.applies. WhereWhere the the Office Office of of the the General General Counsel Counsel issues issues a complaint, it

necessarilynecessarily means thatthat itit made bothboth ofof thosethose determinationsdeterminations in in chargingcharging party's party's favor.favor. TheThe OfficeOffice

ofof the the GeneralGeneral CounselCounsel maymay notnot evaluateevaluate the underlying meritsmerits ofof the the primaprima facie facie case.case. ByBy contrast,contrast, itit is is required required by by statute statute to to makemake anan actualactual determinationdetermination whetherwhether thethe chargecharge is timely

and,and, for thatthat matter,matter, whetherwhether itit isis subjectsubject toto deferral.deferral.

TheThe rolerole ofof the the Office Office of of the the General General Counsel Counsel inin the the determinationdetermination of of the the timelinesstimeliness of of a a

chargecharge makes unfairunfair practice charges sufficiently sufficiently distinct fromfrom civilcivil actions actions to to undermine undermine the the Long Beach II, supra, Long Board'sBoard's rationalerationale inin Long Beach II, supra, PERBPERB Decision Decision No. No. 2002. 2002. The The Board Board in in Long

Beach II reasonedreasoned thatthat becausebecause the the statute statute of of limitations limitations isis partpart ofof charging party'sparty's prima faciefacie

burden,burden, it isis notnot "new"new matter" matter" constituting constituting a a true true affirmative affirmative defense. defense. As As explained explained above, above, thethe bundlingbundling of of the the timeliness timeliness issue issue withwith the the prima prima facie facie elements elements ofof an an unfairunfair practicepractice chargecharge diddid inin

factfact occuroccur butbut notnot forfor reasonsreasons groundedgrounded in thethe statutorystatutory scheme.scheme. Moreover,Moreover, becausebecause the Office ofof

thethe GeneralGeneral CounselCounsel necessarilynecessarily hashas already made a timelinesstimeliness determination byby thethe timetime the the complaintcomplaint has has issued,issued, the statute of limitations doesdoes in factfact becomebecome "new matter" forfor purposespurposes ofof

thethe formalformal hearing.hearing.

The BoardBoard inin LongLong Beach Beach IIII stated stated thatthat imposingimposing onon thethe chargingcharging partyparty thethe burdenburden ofof provingproving timeliness timeliness is is consistent consistent with with Evidence Evidence Code Code section section 500 500 because because "it "it requires requires the the charging charging we do not accept the partyparty to to proveprove at at hearing hearing whatwhat itit alleged alleged in in the the charge." charge." As As explained, explained, we do not accept the

premisepremise that thethe timelinesstimeliness issueissue andand the prima faciefacie elementselements of an an unfair practicepractice areare equivalent.equivalent.

2929 the charge MoreMore importantly, importantly, the the parties parties do do not not litigate litigate the the allegations allegations of of the charge atat the the formal formal hearing. hearing.

TheyThey litigate litigate the the allegations allegations in in the the complaint. complaint. When When the the Office Office of ofthe the General General Counsel Counsel issues issues a a complaint,complaint, it ithas has the the discretion discretion to to decide decide which which allegations allegations and and legal legal theories theories to to assert assert andand whatwhat

violationsviolations to to include.include. Because Because it it is is the the Office Office of of the the General General Counsel Counsel that that issues issues thethe complaint,complaint,

andand thethe complaintcomplaint replaces replaces thethe chargecharge asas the operative pleading,pleading, wewe seesee no reasonreason to depart from

in time-honoredtime-honored principles principles developed developed byby the the courtscourts regardingregarding thethe statutestatute of limitations in

determiningdetermining thethe properproper allocationallocation of of the the parties' parties' respective respective burdens burdens forfor administrative administrative

adjudicationadjudication purposes. purposes.

GivenGiven that that the the runningrunning of of the the statute statute ofof limitations limitations is is a aprocedural procedural defect defect that that prevents prevents the the

triertrier of of fact fact from from deciding deciding a acase case onon its its merits,merits, itit should should be be carefullycarefully and and conscientiously conscientiously applied. applied.

AtAt the the charge charge investigationinvestigation stage, stage, it isis incumbentincumbent onon chargingcharging partyparty toto provideprovide sufficientsufficient factual factual

allegationsallegations andand supportingsupporting evidenceevidence toto allowallow the the OfficeOffice of of the the General General Counsel Counsel to to determine determine that that a a primaprima facie facie violation violation of of an an unfair unfair practice practice has has been been set set forth forth and and the the unfair unfair practice practice charge charge was was timelytimely filed. filed. Upon Upon making making those those determinations, determinations, the the Office Office of of the the General General Counsel Counsel concludes concludes its its statutorystatutory role role in in its its issuance issuance ofof a a complaint.complaint. AtAt that that point, point, the the statute statute of of limitations limitations becomes becomes a a

"true" affirmative affirmative defense. defense. AsAs the the Board Board had had required required priorprior to to Long Long Beach Beach II,JI, thethe statutestatute ofof

limitationslimitations is is waived waived if if not not timely timely raised raised as as an an affirmative affirmative defense defense in in the the answer answer to to thethe complaint.complaint.

Following the the "common"common guide" guide" provided provided by by the the pleadings, pleadings, wewe holdhold thatthat (1)(1) thethe burdenburden of goinggoing

forwardforward withwith evidence evidence and and thethe burdenburden ofof proving proving the the issues issues withwith respect respect toto thethe unfairunfair practices practices allegedalleged inin the the complaintcomplaint continue continue to to be be imposedimposed onon thethe chargingcharging party;party; (2)(2) thethe burdenburden of going going

forward withwith evidence evidence andand thethe burden of proving thethe issuesissues withwith respect toto anyany affirmativeaffirmative defensesdefenses or "new"new matters" matters" raised raised in in the the answer answer are are henceforth henceforth imposed imposed on on the the respondent; respondent; and and

(3) thus,thus, thethe respondentrespondent hashas the burden toto pleadplead andand proveprove thatthat the the unfairunfair practice practice charge charge is is barred barred

by thethe statutestatute of limitations.limitations.

30 WhereWhere thethe issueissue ofof equitable equitable oror statutory statutory tolling tolling arises, arises, as as here, here, the the question question becomes becomes

whetherwhether thethe burdenburden ofof proof proof remains remains withwith the the respondent respondent oror shiftsshifts toto thethe chargingcharging party.party. InIn some some

civil law law contexts, contexts, the the burden burden shifts shifts to to the the plaintiff plaintiff to to demonstrate demonstrate that that the the claim claim survives survives based based Arlayna Samuels onon oneone oror moremore non-statutorynon-statutory exceptionsexceptions toto thethe statutestatute of limitations.limitations. (See, (See, e.g., e.g., Arlayna Samuels supra, th v.v. TerenceTerence JJ. Mix, supra, 22 Cal.4"Cal.4 1,1, 111.) 1.) InIn determiningdetermining whetherwhether thethe normal allocation ofof the the

burdenburden ofof proof proof should should be be altered,altered, relevantrelevant factorsfactors includeinclude thethe knowledgeknowledge ofof the the partiesparties

concerningconcerning thethe particularparticular fact, fact, thethe availabilityavailability of of the the evidence evidence to to the the parties, parties, the the most most desirable desirable resultresult inin termsterms ofof public public policy policy in in the the absence absence of proof ofof the the particularparticular fact,fact, and the probabilityprobability ofof § thethe existenceexistence or nonexistencenonexistence of the fact. (Evid.(Evid. Code, Code, $ 500,500, LawLaw Revision Revision Commission Commission

Comments.)Comments.)

AppliedApplied in in the the tolling tolling context, context, these these factors factors tip tip in in favor favor of of allocating allocating to to the the respondent respondent the the

burden of proving proving thatthat thethe tollingtolling exception exception does does notnot apply.apply. RegardingRegarding the the knowledge knowledge factor, factor, commonlycommonly the the parties parties in in control control of of the the grievance grievance process process are are thethe employeremployer andand thethe exclusiveexclusive representative.representative. ThisThis case case is is nono different.different. Wada's Wada's Step Step One One denial denial was was addressed addressed toto thethe exclusiveexclusive representative.representative. Brown,Brown, the the individualindividual grievant, grievant, was was notnot copiedcopied onon the letter. HeHe testifiedtestified thatthat he he

nevernever receivedreceived it.it. WadaWada testified testified that that communications communications concerning concerning grievances grievances are are between between thethe

District and and thethe exclusiveexclusive representative.representative. AsAs betweenbetween BrownBrown and and thethe District,District, the the DistrictDistrict has has

greater knowledge concerningconcerning thethe statusstatus ofof the the grievance,grievance, i.e.,i.e., whetherwhether the the grievance grievance machinery machinery

hashas been exhausted and any remedy viavia thethe grievancegrievance procedure procedure foreclosed. foreclosed.

RegardingRegarding thethe availabilityavailability of of evidence evidence factor, factor, again again the the employer employer and and the the exclusive exclusive

representativerepresentative commonlycommonly are are the the parties parties in in control control of of the the grievance grievance process process and and therefore therefore are are the the partiesparties most most likely likely to to possess possess evidenceevidence regardingregarding thethe statusstatus of the grievance. Here,Here, forfor example,example,

underunder thethe CBA,CBA, onlyonly the the District District and and the the exclusive exclusive representative representative may may agree agree toto extend,extend, shortenshorten or or

3131 waivewaive anyany stepstep oror timelinetimeline inin the the grievance grievance process.process. AsAs between between BrownBrown and and the the District,District, evidence evidence

ofof the the statusstatus ofof a a grievancegrievance is distinctly withinwithin the the possession possession of thethe District.

RegardingRegarding thethe public policypolicy factor, factor, the the most most desirable desirable resultresult inin thethe absenceabsence ofof proof ofof

timelinesstimeliness isis aa decisiondecision onon thethe meritsmerits ofof the the complaint.complaint. BecauseBecause a a successful successful statutestatute of limitations limitations

defensedefense bars PERBPERB fromfrom determining whetherwhether anan unfair practicepractice occurred,occurred, thethe burden of proofproof

belongsbelongs onon thethe partyparty who who has has thethe strongeststrongest interestinterest in in making making that that case, case, i.e., i.e., the the respondent. respondent.

UnfairUnfair practices practices have have aa destabilizingdestabilizing effecteffect on on thethe workplace.workplace. UnfairUnfair practices practices that that are are not not remediedremedied havehave aa farfar worseworse effect.effect. PublicPublic policy, policy, therefore, therefore, supports supports allocating allocating to to the the respondent respondent

thethe burdenburden ofof proving proving that that the the tolling tolling exception exception does does not not apply. apply.

TheThe finalfinal factor factor in in considering considering whether whether to to alter alter the the allocation allocation of of the the burden burden of of proof proof on on the the

tollingtolling issue issue is is the the probabilityprobability of of the the existence existence or or nonexistence nonexistence ofof the the fact.fact. WeWe return return to to an an earlier earlier

point. ByBy the the time time a acomplaint complaint has has issued, issued, the the Office Office of of the the General General Counsel Counsel necessarily necessarily has has

alreadyalready determineddetermined thatthat thethe chargecharge was timelytimely filedfiled eithereither on on the the basisbasis that the underlying conductconduct

occurredoccurred withinwithin six six months months of of the the filing filing of of the the unfair unfair practice practice charge charge or or that that an an exception exception to to the the statutestatute ofof limitations limitations applies. applies. Therefore, Therefore, at at the the point point of of complaint complaint issuance, issuance, the the greater greater

probabilityprobability is is that that the the unfair unfair practice practice charge charge waswas inin factfact timelytimely filed. filed.

Thus,Thus, inin considerationconsideration of of the the above above factors,factors, andand usingusing thethe factsfacts ofof this this case case toto illustrateillustrate the the

point,point, wewe holdhold that that thethe allocationallocation of of the the burden burden ofof proof proof on on the the tolling tolling issue issue need need notnot bebe alteredaltered

fromfrom thethe newlynewly announced announced framework.framework. TheThe burden burden of of proving proving the the timeliness timeliness issue issue includes includes the the burdenburden of of proving proving both both that that the the unfair unfair practice practice charge charge waswas filed outsideoutside the six-month limitations periodperiod and and that that the the tollingtolling exception exception does does not not apply. apply. That That burden burden rests rests with with the the respondent. respondent.

InIn sum, sum, wewe concludeconclude thatthat the evidentiary record inin this case isis insufficientinsufficient on thethe tollingtolling

issue.issue. WeWe therefore therefore remand remand this this case case toto thethe ALJ.ALJ. WeWe order order that that the the record record be be re-opened re-opened forfor the the

takingtaking of of further further evidence evidence on on the the tolling tolling issue issue and and that that a anew new proposed proposed decision decision issue issue consistent consistent

3232 withwith the the Board'sBoard's decision decision herein, herein, which,which, in in a a sentence, sentence, holdsholds that the statute ofof limitations isis

onceonce again a "true" affirmativeaffirmative defense. defense.

ORDER

TheThe BoardBoard REVERSESREVERSES thethe administrativeadministrative lawlaw judge'sjudge's dismissal dismissal ofof the the complaintcomplaint and and

thethe unfairunfair practice practice chargecharge inin CaseCase No. LA-CE-5656-E, REMANDSREMANDS the the case case toto thethe

administrativeadministrative law law judge judge and and ORDERS ORDERS that that the the recordrecord bebe re-openedre-opened for the taking of furtherfurther evidenceevidence onon the the tollingtolling issue issue only only and and that that a anew new proposed proposed decision decision issue issue consistent consistent with with this this

Decision.

MembersMembers Huguenin,Huguenin, WinslowWinslow and and BanksBanks joinedjoined in in this this Decision. Decision.

3333