Board Changes Burden Of Proof On Statute Of Limitations Defense

Los Angeles Unified School District (2014) PERB Dec. No. 2359-E (Issued on 3/19/14)

This case involved exceptions to a proposed decision issued by an administrative law judge (ALJ). The ALJ dismissed the underlying unfair practice charge as untimely. In reversing the ALJ, the Board stated that, “[T]his case illustrates the flaws in Board precedent governing the allocation of the burden of proof on the timeliness issue.” Under current precedent, the burden is on the charging party to prove that an unfair practice charge is timely even after the Office of the General Counsel has issued a complaint. (See Long Beach Community College District (2009) PERB Decision No. 2002 (“Long Beach II”).) But according to the Board, “By placing the burden on [charging party] to prove a matter outside the complaint … the Board has created a system that is a trap for the unwary.” Accordingly, the Board overturned Long Beach II as it relates to the allocation of the burden of proof on the timeliness of an unfair practice charge. The Board held that:

Charging party’s duty to provide the Office of the General Counsel with sufficient facts upon which to make a determination of timeliness is a bedrock principle. We do not disturb that principle here. We hold that the charging party’s duty to establish timeliness has been discharged at the point at which the Office of the General Counsel has determined that the charge is not subject to dismissal for lack of timeliness and issues a complaint. Where the matter goes to a formal hearing, the presentation of evidence and allocation of burdens flow from the operative pleadings, the complaint and the answer. At this stage of the proceedings, we see no justification for treating the statute of limitations as anything but a “true” affirmative defense, which the respondent has the burden to plead and prove. If not pleaded, it is waived. At the formal hearing, the respondent has the initial burden of going forward with evidence on the timeliness issue and the burden of proving by a preponderance of the evidence that the charge is untimely.

Comments:

This decision makes it clear that the untimeliness of a charge has to be raised as an affirmative defense in respondent’s answer. My advice is to always raise this defense in your answer unless you’re absolutely sure the charge is timely.
Even before this decision my practice was to always raise the potential untimeliness of a charge as an affirmative defense in my answer. So this decision won’t change my practice or that of most practitioners that I know.
What I found interesting is the Board’s reasoning for overturning Long Beach II. One of the justifications proffered by the Board was that in issuing a complaint, the Office of the General Counsel necessarily makes a determination that a charge is timely. Because the Office of the General Counsel has already “investigated” this issue it doesn’t make sense to make the charging party prove it again at hearing, according to the Board.
My comment here is that the Board agent’s “determination” on timeliness doesn’t include resolving factual disputes. At the investigation stage, the Board agent has to accept all material facts from the charging party as true. So, for example, assume that the employer says to the Board agent, “The union knew about the alleged conduct 1 year ago.” The union responds, “That’s not true. We didn’t discover the alleged conduct until 6 months ago.” In this situation, the Board agent accepts the union’s version as true. So my point here is that to the extent the Board is implying that the Office of the General Counsel acts as a “gatekeeper” to block untimely charges, the hurdle placed before a charging party is really low.
There is one other really interesting tidbit in this decision. In footnote 18, the Board “comments” on whether the employer should be equitably or judicially estopped from raising the statute of limitations as an affirmative defense. Although the Board doesn’t make any evidentiary findings, it strongly hints that it will recognize the doctrine of equitable or judicial estoppel to prevent a party from asserting a position before PERB that is contrary to a position taken in the same or earlier proceeding. I agree with this. Although in this case the Board is invoking this concept against the employer, I believe that overall employers will benefit from being able to invoke this concept in defending against unfair practice charges.