PERB Explains Continuing Violation Doctrine

County of San Diego (2020) PERB Dec. No. 2721-M (Issues on 5/22/20)

At issue in this case was a County policy prohibiting Members of the Board of Supervisors from discussing with employees any matter that was also the subject to union negotiations. The union challenged the policy even though it had been in place for many years. The Office of the General Counsel dismissed the unfair practice charge as time-barred. The union appealed to the Board.

The Board acknowledged that PERB may not issue a complaint based upon an alleged unfair practice that occurred more than six months before the charge was filed. “The six-month statute of limitations period begins to run when the charging party knows, or should have known, of the conduct underlying the charge.” (Gavilan Joint Community College District (1996) PERB Dec. No. 1177.) But the Board affirmed that there are three exceptions to this rule: 1) where the violation is a continuing one; 2) where the violation has been revived by subsequent unlawful conduct within the limitations period, and 3) where the limitations period is tolled.

The Board then explored in more detail the continuing violation doctrine. The Board held that for charges challenging an employer policy or rule based on interference or discrimination, the interference with protected rights continues indefinitely and therefore the limitations period does not lapse. To resolve any ambiguity with prior cases, the PERB set forth the following rule:

“The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” [Citations omitted]

In contrast, it remains that a charge based on a unilateral change in policy (that is not facially problematic) is still subject to a six-month statute of limitations. For example, the Board affirmed the holding in San Dieguito Union High School District (1982) PERB Dec. No. 194, where a union challenged a policy requiring teachers to sign out when leaving campus. PERB held that charge was untimely because the union did not file its charge until two years after the policy’s implementation.

In contrast, the Board held that the County’s policy prohibiting Board members from discussing certain topics with employees potentially interfered with the protected right to petition elected officials. On that basis, the Board found that the union stated a prima facie case that the County’s policy, on its face, interfered with protected rights. Therefore the continuing violation doctrine applied. Accordingly the Board reversed the dismissal.

Note: The Board overruled Fresno County Office of Education (1993) PERB Dec. No. 978, to the extent that case did not properly apply the continuing violation doctrine to an interference charge.