Oral Argument Set in Two Major Cases

IAFF Local 188 v. PERB (1st DCA Case No. A114959)

This is the appeal of PERB’s decision in City of Richmond (2004) PERB Decision No. 1720-M. In that case, PERB held that a decision to layoff employees is not within the scope of representation under the MMBA. IAFF is arguing that layoffs should be negotiable where there is an impact on safety and workload.

Oral argument is scheduled before the First District Court of Appeal for March 10, 2009, at 9:00 am.

Sonoma County v. Superior Court (1st DCA Case No. 122450)

The issue in this case is whether SB 440—which mandates interest arbitration for firefighters and police officers—is constitutional under County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (Riverside). In Riverside, the California Supreme Court struck down SB 402 which required interest arbitration for firefighters and police officers and made any arbitration decision binding on the public entity. The Legislature responded by enacting SB 440, which makes any decision binding on the public entity unless the governing body of the public entity unanimously rejects the decision. Cities and Counties throughout California have asserted that SB 440 suffers from the same defects as its predecessor. The unions assert that the statutory scheme now passes muster with the legislative amendments.

Oral argument is scheduled before the First District Court of Appeal for March 12, 2009, at 1:30 pm.

Statute of Limitations is Not Jurisdictional; But is Also Not an Affirmative Defense

Long Beach Community College District (2009) PERB Decision No. 2002-E (Issued on 1/30/09)

The saga continues. The facts in this case arose back in 2001. The case first came before the Board in 2003 on a dismissal. In that case, Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach CCD I), the Board considered the effect of the parties’ non-binding grievance procedure on the statute of limitations for filing a charge under EERA. Under existing precedent at that time, the Board did not recognize the doctrine of “equitable tolling” as it considered the limitations period a jurisdictional prerequisite.

After examining the language of EERA and considering the public policy behind the statute, the Board in Long Beach CCD I held that the statute of limitations under EERA was not jurisdictional, but rather an affirmative defense that had to be raised or was waived. Long Beach CCD I thus overturned PERB precedent that had existed since 1991, that had held the limitations period was jurisdictional. (Interestingly, the 1991 decision had overturned prior precedent holding that the limitations period was not jurisdictional.)

Based on Long Beach CCD I, a complaint was eventually issued in the case, it was heard by an ALJ, and eventually the case found its way back to the Board. This time around, the district urged the current Board to overturn Long Beach CCD I. The Board declined and instead affirmed that the limitations period under EERA is not jurisdictional.

However, the Board also held that the timeliness of a charge is not an affirmative defense, but rather remains an element of proof for the charging party. Thus, while Long Beach CCD II affirmed Long Beach CCD I on the holding that the limitations period is not jurisdictional, it overruled Long Beach CCD I on the holding as to whether timeliness constitutes an affirmative defense—finding that it does not.

Comments:

Although this decision only considered the statute of limitations period under EERA, there is little doubt in my mind that the Board will apply the same reasoning to all the other statutes administered by PERB, since the statutory language is similar.

I think this decision ends the debate over whether the statute of limitations under the statutes administered by PERB are jurisdictional – they are not. Some employers had hoped that the new Board would use this opportunity to overturn Long Beach CCD I before it really took hold. Instead, the new Board went out of its way to affirm that prior decision.

With respect to the holding that the timeliness of a charge is not an affirmative defense, I suspect the practical effect of that holding will be minor. Similarly, the holding that the limitations period is not jurisdictional has little effect by itself. The real effect will come from the revival of the equitable tolling doctrine, and perhaps other equitable remedies, that will work to save charges that otherwise would be untimely.

PERB Offices Closed on "Furlough Fridays"

Today PERB issued the following notice:

"FURLOUGH NOTICE

In response to Governor Schwarzenegger’s Executive Order S-16-08 ordering the furlough of State employees, the Public Employment Relations Board (PERB) will be closed for business on the first and third Fridays of each month (furlough days) beginning Friday, February 6, 2009. On furlough days, PERB offices will be closed and no business will be conducted. Presently scheduled furlough days: First and third Fridays of every month until June 30, 2010."

For those of you wondering how this affects due dates for PERB filings, note that PERB regulation 32130 provides that:

"In computing any period of time under these regulations, except under Section 32776(c), (d), (e) and (f), the period of time begins to run the day after the act or occurrence referred to. Whenever the last date to file a document falls on Saturday, Sunday, or a holiday, as defined in Government Code Sections 6700 and 6701, or PERB offices are closed, the time period for filing shall be extended to and include the next regular PERB business day. The extension of time provided herein shall be applied subsequent to the application of any other extension of time provided by these regulations or by other applicable law."