“Sunshine” Notice Sufficient To Trigger Statute Of Limitations

Standard School District (2012) PERB Decision No. 2273-E (Issued on 6/22/12)

This case involves a challenge to the sufficiency of a sunshine notice. Pursuant to EERA Section 3547, the school district (district) sunshined its bargaining proposals on September 14, 2010. No public comments were received. The district and union then began bargaining which eventually broke down in July 2011. Also in July 2011, numerous community members filed the present unfair practice charge alleging that the sunshine notice in September 2010 was defective.

The Board agent dismissed the charge as untimely and the Board affirmed. In its decision, the Board noted that prior to 2006, the limitations period to challenge a sunshine notice was thirty (30) days. A regulatory change in 2006 extended the limitations period to six (6) months but the Board noted that public policy still favored expediting challenges to the sunshine process in order not to impede bargaining. With this in mind, the Board applied its long held doctrine that the limitations period begins to run once the charging party “knows, or should have known, of the conduct underlying the unfair practice charge.” (See Gavilan Joint Community College District (1996) PERB Decision No. 1177.) Here, the charging party alleged that she did not “discover” the defects in the sunshine notice until June 2011. The Board rejected charging party’s contention and held that:

[T]he statute of limitations for a charge alleging a violation of the public notice provisions of EERA begins to run either upon publication of a public notice of a meeting at which bargaining proposals will be sunshined or at the public meeting itself. [Citation omitted] Thus, if the charge alleges that the notice itself was defective, the statute of limitations begins to run upon publication of the notice. If the charge alleges that the notice itself was proper but the proposals sunshined at the meeting failed to comply with the provisions of EERA section 3547, the limitations period begins to run on the date of the meeting where the proposals were presented to the public.

Applying this standard, the Board held that charging party should have known of the alleged defects in the district’s sunshine notice when it was published in September 2010. Accordingly, the Board dismissed the charge as untimely.

Member Huguenin filed a concurrence “… to underscore the distinction in limitations policy applicable to public notice complaints and to unfair practice charges.” According to the concurrence, this decision leaves unchanged the Board’s jurisprudence on the limitations period governing unfair practice charges. That jurisprudence requires a charging party to file an unfair practice charge within six (6) months of discovering the conduct underlying the unfair practice.

Comments:

At first blush, this may not seem like a significant case. However, I think it’s intriguing because on how the holding may be used in the future, which is why I think Member Huguenin felt it necessary to file a separate concurrence. The intriguing issue here is how the statute of limitations was triggered. The charging party claimed she did not have actual notice of the alleged violation until June 2011. However, the Board held that the publication of the notice itself was sufficient to trigger the limitations period, regardless of whether the charging party had actual knowledge of the notice or knew of its legal significance.
Consider PERB’s cases interpreting the duty to meet and confer. Part of that duty requires the employer to give the union notice of any action that will change the terms and conditions of employment and have an effect on the terms and conditions of employment. There is a long line of PERB cases that hold that the mere fact that a governing body (i.e. school board, city council, etc.) acts on an item at a public meeting does not constitute notice to the union. (Arvin Union School District (3/30/83) PERB Decision No. 300 (Arvin); Calexico Unified School District (1983) PERB Decision No. 357 at fn. 9 of the decision of the administrative law judge; Victor Valley Union High School District (1986) PERB Decision No. 565.)
So compare this case to the Arvin line of cases. What’s the difference? Both the majority opinion and the concurrence go to some length to limit the holding in this case to the unique situation of sunshine notices. I think Member Huguenin was worried that management advocates like me would try to use this case to chip away at Arvin. And he’s right. The reality is that management cannot always anticipate every potentially negotiable effect from a management decision. So I’ve always felt that there are some situations where action taken at a public meeting should constitute sufficient notice to the union just like it does to the general public. So given the right set of facts, this case might be used to make that argument. But as the concurrence makes clear, it’s going to be a hard sell.