Long Beach Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2014) PERB Decision No. 2359 (PERB 2002E)

* * * OVERRULED IN PART by Los Angeles Unified School
District (2014) PERB Decision No. 2359 * * *
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LONG BEACH COUNCIL OF CLASSIFIED
EMPLOYEES,
Charging Party,
v.
LONG BEACH COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4373-E
PERB Decision No. 2002
January 30, 2009
Appearances: Rodney W. Wickers, Attorney, for Long Beach Council of Classified
Employees; Parker & Covert by Spencer E. Covert, Attorney, for Long Beach Community
College District.
Before Neuwald, Chair; Wesley, Rystrom and Dowdin Calvillo, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Long Beach Council of Classified Employees
(Council) and the Long Beach Community College District (District) to the proposed decision
(attached) of an administrative law judge (ALJ). 	The ALJ found that the District violated
section 3543. 5(a), (b) and (c) of the Educational Employment Relations Act (EERA) 1 by
unilaterally adopting a four-day-per-week, l 0-hour-per-day (4/10) schedule for its classified
employees during June and July 2001.
The Board has reviewed the entire record in this case, including but not limited to, the
complaint and answer, the hearing transcripts and exhibits, the ALJ' s proposed decision, the
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

Council's exception and the District's response thereto, and the District's exceptions and
supporting brief.2 Based on this review, the Board finds the ALJ's proposed decision to be a
correct statement of the law and well-reasoned, and therefore adopts it as the decision of the
Board itself, subject to the discussion below.
BACKGROlJND
Facts Underlying the Unfair Practice Charge
The ALJ' s proposed decision contains a thorough and accurate recitation of the facts
underlying the unfair practice charge and complaint. We briefly summarize the relevant facts
here to provide context for our discussion below.
At all times relevant to this case, no collective bargaining agreement (CBA) existed
between the District and the Council. Nonetheless, the parties had agreed to abide by the
provisions of the expired CBA between the District and the California School Employees
Association, which represented the District's classified employees prior to the Council's
certification as exclusive representative in March 2000. Additionally, the parties had
negotiated an interim grievance procedure that was in effect during the months in 2001 at issue
here. The procedure provided for an informal grievance conference, followed by a formal
filing of a grievance with the appropriate dean or director (Level 1), an appeal to the
appropriate vice president or executive dean (Level 2), and finally, non-binding mediation
(Level 3). When the parties failed to reach agreement at a particular step, the grievant had
20 days to move the grievance to the next step in the process. However, the parties could
extend the timeline by mutual agreement.
2The District filed its exceptions concurrently with its response to the Council's
exception. The Council did not respond to the District's exceptions.
2
Council's exception and the District's response thereto, and the District's exceptions and
supporting brief." Based on this review, the Board finds the ALJ's proposed decision to be a
correct statement of the law and well-reasoned, and therefore adopts it as the decision of the
Board itself, subject to the discussion below.
BACKGROUND
Facts Underlying the Unfair Practice Charge
The ALJ's proposed decision contains a thorough and accurate recitation of the facts
underlying the unfair practice charge and complaint. We briefly summarize the relevant facts
here to provide context for our discussion below.
At all times relevant to this case, no collective bargaining agreement (CBA) existed
between the District and the Council. Nonetheless, the parties had agreed to abide by the
provisions of the expired CBA between the District and the California School Employees
Association, which represented the District's classified employees prior to the Council's
certification as exclusive representative in March 2000. Additionally, the parties had
negotiated an interim grievance procedure that was in effect during the months in 2001 at issue
here. The procedure provided for an informal grievance conference, followed by a formal
filing of a grievance with the appropriate dean or director (Level 1), an appeal to the
appropriate vice president or executive dean (Level 2), and finally, non-binding mediation
(Level 3). When the parties failed to reach agreement at a particular step, the grievant had
20 days to move the grievance to the next step in the process. However, the parties could
extend the timeline by mutual agreement.
The District filed its exceptions concurrently with its response to the Council's
exception. The Council did not respond to the District's exceptions.
2

On April 10, 2001, Victor Collins (Collins), the District's dean of human services, sent
a letter to Shannon Willson (Willson), the president of the Council. The letter informed the
Council that, due to the ongoing California energy crisis, the District would be instituting a
4/10 schedule for classified employees from June 4 through July 26, 2001.
On April 13, 2001, Willson and Collins, along with another Council representative and
the District's interim human resources director, met to discuss the 4/10 schedule. The Council
made two proposals that were rejected by the District. At the end of the meeting, the parties
agreed that the Council would survey its members about the 4/10 schedule and then meet again
with the District.
On May 1, 2001, the District notified its classified employees by memorandum of the
impending change to the 4/10 schedule. The following day, Willson and Collins met to discuss
the results of the Council's survey. 	Willson stated that the Council would have to file a
grievance if the District did not negotiate over the 4/10 schedule. Collins responded that the
District would accommodate some employees, but that it had no choice but to implement the
4/10 schedule.
On May 7, 2001, Willson sent Collins a letter summarizing employee responses to the
Council's survey. Collins responded by letter on May 11 that the District intended to
implement the 4/10 schedule but would work with the Council before implementation to
accommodate specific employees. 	Willson did not respond to this letter.
The District implemented the 4/10 schedule for classified employees effective June 4,
2001. On June 20, the Council filed a Level 1 grievance over the 4/10 schedule. As a remedy,
the grievance sought credit for all vacation and/or unpaid leave taken by employees as a result
of implementation of the 4/10 schedule. The District immediately moved the grievance to
Level 3 mediation. Collins testified that although the grievance was untimely, he felt that a
3
On April 10, 2001, Victor Collins (Collins), the District's dean of human services, sent
a letter to Shannon Willson (Willson), the president of the Council. The letter informed the
Council that, due to the ongoing California energy crisis, the District would be instituting a
4/10 schedule for classified employees from June 4 through July 26, 2001.
On April 13, 2001, Willson and Collins, along with another Council representative and
the District's interim human resources director, met to discuss the 4/10 schedule. The Council
made two proposals that were rejected by the District. At the end of the meeting, the parties
agreed that the Council would survey its members about the 4/10 schedule and then meet again
with the District.
On May 1, 2001, the District notified its classified employees by memorandum of the
impending change to the 4/10 schedule. The following day, Willson and Collins met to discuss
the results of the Council's survey. Willson stated that the Council would have to file a
grievance if the District did not negotiate over the 4/10 schedule. Collins responded that the
District would accommodate some employees, but that it had no choice but to implement the
4/10 schedule.
On May 7, 2001, Willson sent Collins a letter summarizing employee responses to the
Council's survey. Collins responded by letter on May 11 that the District intended to
implement the 4/10 schedule but would work with the Council before implementation to
accommodate specific employees. Willson did not respond to this letter.
The District implemented the 4/10 schedule for classified employees effective June 4,
2001. On June 20, the Council filed a Level 1 grievance over the 4/10 schedule. As a remedy,
the grievance sought credit for all vacation and/or unpaid leave taken by employees as a result
of implementation of the 4/10 schedule. The District immediately moved the grievance to
Level 3 mediation. Collins testified that although the grievance was untimely, he felt that a

mediator could help the parties reach agreement on the issue. Mediation took place on
August 2, 2001, but no agreement was reached. The Council filed this unfair practice charge
on January 25, 2002.
Dismissal of the Charge and Appeal to the Board
On March 26, 2002, a PERB Board agent dismissed the Council's charge because it
was not filed within six months of the alleged unfair practice, as required by EERA
section 3541.5(a)(l). The Board agent rejected the Council's argument that the six-month
period was equitably tolled while the Council engaged in the non-binding interim grievance
procedure. In the dismissal letter, the Board agent pointed out that the Board had ceased to
recognize the doctrine of equitable tolling in Regents of the University of California (1990)
PERB Decision No. 826-H (Regents). On April 19, 2002, the Council appealed the dismissal
to the Board itself.
In its decision on the appeal, Long Beach Community College District (2003) PERB
Decision No. 1564 (Long Beach CCD I), the Board held that the six-month limitations period
set forth in EERA section 354 l.5(a)(1) is not jurisdictional. Based on this holding, the Board
reinstated the doctrine of equitable tolling. However, because the record did not establish
when the Council initiated the non-binding grievance procedure, the Board could not
determine the length of the equitable tolling period in this case. Consequently, the Board
remanded the charge to the Office of the General Counsel for further investigation.
After further investigation, the parties agreed that their April 13, 200 l meeting
constituted the Council's initiation of the non-binding grievance procedure. Because this
agreement resolved the timeliness issue, the General Counsel issued a complaint on the charge
on March 9, 2004. The District answered the complaint on March 26, 2004, asserting the six-
month statute of limitations as a defense. After the parties failed to reach a settlement, the case
4
mediator could help the parties reach agreement on the issue. Mediation took place on
August 2, 2001, but no agreement was reached. The Council filed this unfair practice charge
on January 25, 2002.
Dismissal of the Charge and Appeal to the Board
On March 26, 2002, a PERB Board agent dismissed the Council's charge because it
was not filed within six months of the alleged unfair practice, as required by EERA
section 3541.5(a)(1). The Board agent rejected the Council's argument that the six-month
period was equitably tolled while the Council engaged in the non-binding interim grievance
procedure. In the dismissal letter, the Board agent pointed out that the Board had ceased to
recognize the doctrine of equitable tolling in Regents of the University of California (1990)
PERB Decision No. 826-H (Regents). On April 19, 2002, the Council appealed the dismissal
to the Board itself.
In its decision on the appeal, Long Beach Community College District (2003) PERB
Decision No. 1564 (Long Beach CCD D), the Board held that the six-month limitations period
set forth in EERA section 3541.5(a)(1) is not jurisdictional. Based on this holding, the Board
reinstated the doctrine of equitable tolling. However, because the record did not establish
when the Council initiated the non-binding grievance procedure, the Board could not
determine the length of the equitable tolling period in this case. Consequently, the Board
remanded the charge to the Office of the General Counsel for further investigation.
After further investigation, the parties agreed that their April 13, 2001 meeting
constituted the Council's initiation of the non-binding grievance procedure. Because this
agreement resolved the timeliness issue, the General Counsel issued a complaint on the charge
on March 9, 2004. The District answered the complaint on March 26, 2004, asserting the six-
month statute of limitations as a defense. After the parties failed to reach a settlement, the case

proceeded to hearing before an ALJ on October 27 through 29, 2004. The ALJ issued his
proposed decision on March 28, 2005.
ALJ's Proposed Decision
The ALJ found the charge was timely because the six-month statute of limitations was
equitably tolled from April 13 to August 2, 2001 while the Council pursued a remedy through
the non-binding interim grievance procedure. The District argued, contrary to its earlier
agreement, that the parties' meetings of April 13 and May 2, 2001, did not satisfy the
"informal grievance conference" step of the procedure because the Council did not formally
invoke the grievance process at either meeting. The ALJ rejected this argument, finding that
the substance of the meetings was consistent with that described in the informal grievance
conference step of the process. The District also argued that the Council failed to diligently
pursue the grievance procedure because it filed its June 20, 2001 grievance more than 20 days
after the informal conference step ended. The ALJ reasoned that by accepting the Council's
late grievance, the District agreed to extend the grievance procedure's filing timelines.
Turning to the merits of the complaint, the ALJ found that work schedules are within
the scope of representation and that the District did not bargain with the Council before
implementing the 4/10 schedule. 3 He then proceeded to examine whether the Council waived
its right to negotiate over the 4/10 schedule.4 After reviewing the CBA provisions regarding
work hours and workweek, the ALJ concluded that nothing in the CBA allowed the District to
3The parties stipulated that the District did not bargain before implementation.
4The ALJ and the parties framed the issue as whether the District had a contractual right
to change the workweek but this is generally analyzed as whether the union waived its right to
negotiate over the workweek change. (See Desert Sands Unified School District (2004) PERB
Decision No. 1682 [applying waiver analysis to district's claim that CBA's management rights
clause allowed it to unilaterally transfer work from one job classification to another].)
5
proceeded to hearing before an ALJ on October 27 through 29, 2004. The ALJ issued his
proposed decision on March 28, 2005.
ALJ's Proposed Decision
The ALJ found the charge was timely because the six-month statute of limitations was
equitably tolled from April 13 to August 2, 2001 while the Council pursued a remedy through
the non-binding interim grievance procedure. The District argued, contrary to its earlier
agreement, that the parties' meetings of April 13 and May 2, 2001, did not satisfy the
"informal grievance conference" step of the procedure because the Council did not formally
invoke the grievance process at either meeting. The ALJ rejected this argument, finding that
the substance of the meetings was consistent with that described in the informal grievance
conference step of the process. The District also argued that the Council failed to diligently
pursue the grievance procedure because it filed its June 20, 2001 grievance more than 20 days
after the informal conference step ended. The ALJ reasoned that by accepting the Council's
late grievance, the District agreed to extend the grievance procedure's filing timelines.
Turning to the merits of the complaint, the ALJ found that work schedules are within
the scope of representation and that the District did not bargain with the Council before
implementing the 4/10 schedule." He then proceeded to examine whether the Council waived
its right to negotiate over the 4/10 schedule." After reviewing the CBA provisions regarding
work hours and workweek, the ALJ concluded that nothing in the CBA allowed the District to
'The parties stipulated that the District did not bargain before implementation.
"The ALJ and the parties framed the issue as whether the District had a contractual right
to change the workweek but this is generally analyzed as whether the union waived its right to
negotiate over the workweek change. (See Desert Sands Unified School District (2004) PERB
Decision No. 1682 [applying waiver analysis to district's claim that CBA's management rights
clause allowed it to unilaterally transfer work from one job classification to another].)

implement a 4/10 schedule without first negotiating the change with the Council.
Consequently, the ALJ found that the District's unilateral implementation of the 4/10 schedule
violated EERA.
As a remedy, the ALJ ordered the District to restore any vacation or compensatory time
off that bargaining unit employees used to avoid working full ten-hour days during June and
July 2001. He also ordered back pay for employees who took leave without pay to avoid
working a ten-hour day. However, the ALJ rejected the Council's request for overtime pay for
all bargaining unit employees because most of the employees consented to working the 4/10
schedule.
DISCUSSION
1. 	Statute of Limitations
a. 	Nature of Limitation
In its exceptions, the District urges the Board to overrule Long Beach CCD I and
return to the Board's prior view that the six-month limitations period set forth in EERA
section 3541.S(a)(l )5 is jurisdictional and therefore precludes the Board from equitably tolling
the statutory filing period. For the following reasons, we reaffirm the Board's holding in Long
Beach CCD I that EERA' s statute of limitations is not jurisdictional.
In California State University, San Diego (1989) PERB Decision No. 718-H
(CSU, San Diego), the Board held that EERA section 3541.S(a)(l) acts as an absolute
5EERA section 3541.5 states, in relevant part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
( 1) Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge.
6
implement a 4/10 schedule without first negotiating the change with the Council.
Consequently, the ALJ found that the District's unilateral implementation of the 4/10 schedule
violated EERA.
As a remedy, the ALJ ordered the District to restore any vacation or compensatory time
off that bargaining unit employees used to avoid working full ten-hour days during June and
July 2001. He also ordered back pay for employees who took leave without pay to avoid
working a ten-hour day. However, the ALJ rejected the Council's request for overtime pay for
all bargaining unit employees because most of the employees consented to working the 4/10
schedule.
DISCUSSION
1 . 	Statute of Limitations
a. 	Nature of Limitation
In its exceptions, the District urges the Board to overrule Long Beach CCD I and
return to the Board's prior view that the six-month limitations period set forth in EERA
section 3541.5(a)(1) is jurisdictional and therefore precludes the Board from equitably tolling
the statutory filing period. For the following reasons, we reaffirm the Board's holding in Long
Beach CCD I that EERA's statute of limitations is not jurisdictional.
In California State University, San Diego (1989) PERB Decision No. 718-H
(CSU. San Diego), the Board held that EERA section 3541.5(a)(1) acts as an absolute
PEERA section 3541.5 states, in relevant part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(1) Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge.
6

limitation on PERB' s jurisdiction to issue complaints because the statute states that the Board
"shall not" issue a complaint based on any conduct occurring more than six months before the
charge was filed. 6 In so holding, the Board relied on cases stating the general rule that "[t]he
word 'shall' is ordinarily 'used in laws, regulations, or directives to express what is
mandatory."" (Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133 [142 Cal.Rptr. 325].)
Nonetheless, "shall" may be construed as directory rather than mandatory unless doing so
would defeat the purpose of the provision in which it appears. 	(Id., at p. 134.) Thus, the
Legislature's use of the word "shall" does not always mean that a statute imposes a mandatory
requirement. Therefore, it is necessary to look at the context in which "shall" is used in the
statute to determine whether the requirement is mandatory or directory.
In construing the language ofEERA section 3541.5(a)(l), the Board must apply these
rules of statutory construction in the context of the law applicable to statutes of limitation. As
a general rule, the statute of limitations is a defense that is waived if not raised at the
appropriate time. (John R. Sand & Gravel Co. v. United States (2008) 128 S.Ct. 750, 753
[169 L.Ed.2d 591] (John R. Sand & Gravel); Moore v. City of Los Angeles (2007)
156 Cal.App.4th 373,382 [67 Cal.Rptr.3d 218].) "This general rule applies to proceedings
before an administrative tribunal." (Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37 [278
P .2d 454].) However, statutory limitation periods may be considered jurisdictional, rather than
a defense, when they seek "to achieve a broader system-related goal." (John R. Sand &
CSU, San Diego involved interpretation of the Higher Education Employer-Employee
Relations Act (HEERA). (HEERA is codified at Government Code sec. 3560 et seq.) HEERA
section 3563.2(a) provides, in relevant part, that "the board shall not issue a complaint in
respect of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge." Because EERA section 3541.5(a)(l) contains identical
language, the Board in CSU, San Diego applied its holding that HEERA section 3563.2(a) was
jurisdictional to this parallel EERA provision.
7
limitation on PERB's jurisdiction to issue complaints because the statute states that the Board
"shall not" issue a complaint based on any conduct occurring more than six months before the
charge was filed." In so holding, the Board relied on cases stating the general rule that "[the
word 'shall' is ordinarily 'used in laws, regulations, or directives to express what is
Nonetheless, "shall" may be construed as directory rather than mandatory unless doing so
would defeat the purpose of the provision in which it appears. (Id., at p. 134.) Thus, the
Legislature's use of the word "shall" does not always mean that a statute imposes a mandatory
requirement. Therefore, it is necessary to look at the context in which "shall" is used in the
statute to determine whether the requirement is mandatory or directory.
In construing the language of EERA section 3541.5(a)(1), the Board must apply these
rules of statutory construction in the context of the law applicable to statutes of limitation. As
a general rule, the statute of limitations is a defense that is waived if not raised at the
appropriate time. (John R. Sand & Gravel Co. v. United States (2008) 128 S.Ct. 750, 753
[169 L.Ed.2d 591] (John R. Sand & Gravel); Moore v. City of Los Angeles (2007)
156 Cal.App.4th 373, 382 [67 Cal.Rptr.3d 218].) "This general rule applies to proceedings
before an administrative tribunal." (Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37 [278
P.2d 454].) However, statutory limitation periods may be considered jurisdictional, rather than
a defense, when they seek "to achieve a broader system-related goal." (John R. Sand &
'CSU. San Diego involved interpretation of the Higher Education Employer-Employee
Relations Act (HEERA). (HEERA is codified at Government Code sec. 3560 et seq.) HEERA
section 3563.2(a) provides, in relevant part, that "the board shall not issue a complaint in
respect of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge." Because EERA section 3541.5(a)(1) contains identical
language, the Board in CSU, San Diego applied its holding that HEERA section 3563.2(a) was
jurisdictional to this parallel EERA provision.
7

Gravel, at p. 753.) In such cases, the language
of
the statute must clearly indicate that the
Legislature intended for the time limitation to be absolute. (United States
v.
Brockamp ( 1997)
519 U.S. 347, 350-351 [117 S.Ct. 849].)
Applying the above principles, we find that the language
of
EERA section 3541.5(a)(l)
does not clearly indicate that the six-month limitation is jurisdictional. There is nothing in the
text
of
the statute to signify that the words "shall not" were meant to be mandatory. Both the
National Labor Relations Act (NLRA)7 and California's Agricultural Labor Relations Act
(ALRA)8 provide that: "[n]o complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing
of
the charge with the board." (29 U.S.C.
sec. 160(b); Lab. Code sec. 1160.2; emphasis added.) Though both
of
these statutes use the
word "shall," neither has been interpreted as an absolute limit on the administering labor
board's jurisdiction to issue complaints. (Chicago Roll Forming Corp. (1967) 167 NLRB 961,
971 [66 LRRM 1228]; National Labor Relations Bd. v. A.E. Nettleton Co. (2d Cir. 1957) 241
F.2d 130, 133 [39 LRRM 2338]; Ruline Nursery
v.
Agricultural Labor Relations Bd. (1985)
169 Cal.App.3d 247, 265 [214 Cal.Rptr. 704].) Further, we have found no authority showing
that the phrase "shall not" is subject to different rules
of
interpretation than the word "shali"
standing alone. Accordingly, we attach no legal significance to the Legislature's choice
of
"shall not" rather than "shall" in EERA section 3541.5(a). There is thus no textual basis for
finding the six-month period in EERA section 3541.5(a)(l) to be a jurisdictional limitation.9
7The NLRA is codified at 29 U.S.C. section 151 et seq.
8The ALRA is codified at Labor Code section 1140 et seq.
9It is also worth noting that the first sentence of EERA section 3541.5 sets forth the
Board's jurisdiction, while the second sentence provides that the Board shall establish
"[p]rocedures for investigating, hearing, and deciding" unfair practice charges. Subsection (a),
which contains the six-month limitation period, thus falls under the Board's authority to
8
Gravel, at p. 753.) In such cases, the language of the statute must clearly indicate that the
Legislature intended for the time limitation to be absolute. (United States v. Brockamp (1997)
519 U.S. 347, 350-351 [117 S.Ct. 849].)
Applying the above principles, we find that the language of EERA section 3541.5(a)(1)
does not clearly indicate that the six-month limitation is jurisdictional. There is nothing in the
text of the statute to signify that the words "shall not" were meant to be mandatory. Both the
National Labor Relations Act (NLRA)' and California's Agricultural Labor Relations Act
(ALRA) provide that: "[njo complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the board." (29 U.S.C.
sec. 160(b); Lab. Code sec. 1160.2; emphasis added.) Though both of these statutes use the
word "shall," neither has been interpreted as an absolute limit on the administering labor
board's jurisdiction to issue complaints. (Chicago Roll Forming Corp. (1967) 167 NLRB 961,
971 [66 LRRM 1228]; National Labor Relations Bd. v. A.E. Nettleton Co. (2d Cir. 1957) 241
F.	F.2d 130, 133 [39 LRRM 2338]; Ruline Nursery v. Agricultural Labor Relations Bd. (1985
169 Cal.App.3d 247, 265 [214 Cal.Rptr. 704].) Further, we have found no authority showing
that the phrase "shall not" is subject to different rules of interpretation than the word "shall"
standing alone. Accordingly, we attach no legal significance to the Legislature's choice of
"shall not" rather than "shall" in EERA section 3541.5(a). There is thus no textual basis for
finding the six-month period in EERA section 3541.5(a)(1) to be a jurisdictional limitation."
The NLRA is codified at 29 U.S.C. section 151 et seq.
The ALRA is codified at Labor Code section 1140 et seq.
"It is also worth noting that the first sentence of EERA section 3541.5 sets forth the
Board's jurisdiction, while the second sentence provides that the Board shall establish
"[procedures for investigating, hearing, and deciding" unfair practice charges. Subsection (a),
which contains the six-month limitation period, thus falls under the Board's authority to
8

Moreover, interpreting the limitation as non-jurisdictional does not defeat the purpose
of the limitation. "[T]he primary purpose of statutes of limitation is to prevent the assertion of
stale claims by plaintiffs who have failed to file their action until evidence is no longer fresh
and witnesses are no longer available." (Addison v. State of California (1978) 21 Cal.3d 313,
317 [146 Cal.Rptr. 224].) PERB will not toll the statutory limitations period unless the dispute
for which the parties utilized a non-binding dispute resolution procedure is the same as the
dispute underlying the unfair practice charge. 	(Victor Valley Community College District
(1986) PERB Decision No. 570 (Victor Valley CCD).) This rule prevents prejudice to the
respondent because the initiation of the dispute resolution procedure puts the respondent on
notice of the dispute that is the subject of the unfair practice charge. (Ibid.) Therefore,
because the respondent's interest in avoiding "stale claims" may be adequately protected
without interpreting the statutory time limitation as mandatory, we conclude that the six-month
limitation in EERA section 3541.S(a)(l) is not jurisdictional.
b. 	Type of Defense
While we agree with the Board's holding in Long Beach CCD I that the six-month period
set forth in EERA section 3541.S(a)(l) is a non-jurisdictional statute of limitations, we disagree
with the Board's statement that it "must be raised as an affirmative defense." For the following
reasons, we find that EERA's statute oflimitations is not a true affirmative defense but instead
an element of the charging party's prima facie case.
establish case handling procedures rather than under the section conferring jurisdiction upon
the Board. This further indicates that the limitation period is not jurisdictional. (See Kontrick
v. Ryan (2004) 540 U.S. 443, 453-454 [157 L.Ed.2d 867] [holding that time limitation was not
jurisdictional because it was promulgated pursuant to the bankruptcy court's authority to
establish "rules of practice and procedure"].)
9
Moreover, interpreting the limitation as non-jurisdictional does not defeat the purpose
of the limitation. "[The primary purpose of statutes of limitation is to prevent the assertion of
stale claims by plaintiffs who have failed to file their action until evidence is no longer fresh
and witnesses are no longer available." (Addison v. State of California (1978) 21 Cal.3d 313,
for which the parties utilized a non-binding dispute resolution procedure is the same as the
dispute underlying the unfair practice charge. (Victor Valley Community College District
(1986) PERB Decision No. 570 (Victor Valley CCD).) This rule prevents prejudice to the
respondent because the initiation of the dispute resolution procedure puts the respondent on
notice of the dispute that is the subject of the unfair practice charge. (Ibid.) Therefore,
because the respondent's interest in avoiding "stale claims" may be adequately protected
without interpreting the statutory time limitation as mandatory, we conclude that the six-month
limitation in EERA section 3541.5(a)(1) is not jurisdictional.
b. 	Type of Defense
While we agree with the Board's holding in Long Beach CCD I that the six-month period
set forth in EERA section 3541.5(a)(1) is a non-jurisdictional statute of limitations, we disagree
with the Board's statement that it "must be raised as an affirmative defense." For the following
reasons, we find that EERA's statute of limitations is not a true affirmative defense but instead
an element of the charging party's prima facie case.
establish case handling procedures rather than under the section conferring jurisdiction upon
the Board. This further indicates that the limitation period is not jurisdictional. (See Kontrick
v. Ryan (2004) 540 U.S. 443, 453-454 [157 L.Ed.2d 867] [holding that time limitation was not
jurisdictional because it was promulgated pursuant to the bankruptcy court's authority to
establish "rules of practice and procedure"].)
9

Code
of
Civil Procedure section 431.30(b) recognizes two types
of
defenses that
may
be
raised in an answer to a complaint: "(1) The general or specific denial
of
the material allegations
of
the complaint controverted by the defendant" and "(2) A statement
of
any new matter
constituting a defense," or what is commonly known as an affirmative defense. An affirmative
defense absolves a defendant
of
liability even
if
the plaintiff has proven all
of
the necessaiy
elements
of
its claim. (Pettus v. Cole (1996) 49 Cal.App.4th
402,439
[57 Cal.Rptr.2d 46]; see
Cal. Code Regs., tit. 2, sec. 7286. 7
["If
employment discrimination is established, this
employment discrimination is nonetheless lawful where a proper, relevant affirmative defense is
proved."].) Thus, "affirmative defenses do not simply negate an element
of
the plaintiffs prima
facie case, they raise matters extraneous to the prima facie case." (In re Lauricella (Bankr. 9th
Cir. 1989) 105 B.R. 536,541, citing Ford Motor Co. v. Transport Indem. Co. (6th Cir. 1986) 795
F.2d 538, 546; see City
of
Stockton
v.
Superior Court (2007) 42 Cal.4th 730, 746, fn. 12 [68
Cal.Rptr.3d 295] [stating an affirmative defense "is one that depends on facts beyond those put at
issue by the plaintiff'].) In most civil actions, timeliness is not part
of
the plaintiffs prima facie
case and therefore the plaintiff does not have to plead timeliness in its complaint. (Samuels v.
Mix (1999) 22 Cal.4th
1,
8 [91 Cal.Rptr.2d 273] (Samuels).) In such cases, the statute
of
limitations is an affirmative defense that the defendant must plead in its answer and prove by a
preponderance
of
the evidence. (Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd.
(1985) 39 Cal.3d 57, 67, fn. 8 [216 Cal.Rptr. 115].)
In contrast, PERB has long held that, in order for a complaint to issue, the charging party
must allege facts establishing that the unfair practice occurred within the statute
of
limitations
period. In San Francisco Unified School District (1985) PERB Decision No. 501, the Board
10
Code of Civil Procedure section 431.30(b) recognizes two types of defenses that may be
raised in an answer to a complaint: "(1) The general or specific denial of the material allegations
of the complaint controverted by the defendant" and "(2) A statement of any new matter
constituting a defense," or what is commonly known as an affirmative defense. An affirmative
defense absolves a defendant of liability even if the plaintiff has proven all of the necessary
elements of its claim. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 439 [57 Cal.Rptr.2d 46]; see
Cal. Code Regs., tit. 2, sec. 7286.7 ["If employment discrimination is established, this
employment discrimination is nonetheless lawful where a proper, relevant affirmative defense is
proved."].) Thus, "affirmative defenses do not simply negate an element of the plaintiff's prima
facie case, they raise matters extraneous to the prima facie case." (In re Lauricella (Bankr. 9th
Cir. 1989) 105 B.R. 536, 541, citing Ford Motor Co. v. Transport Indem. Co. (6th Cir. 1986) 795
F.	F.2d 538, 546; see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746, fn. 12 [6
Cal.Rptr.3d 295] [stating an affirmative defense "is one that depends on facts beyond those put at
issue by the plaintiff].) In most civil actions, timeliness is not part of the plaintiff's prima facie
case and therefore the plaintiff does not have to plead timeliness in its complaint. (Samuels v.
Mix (1999) 22 Cal.4th 1, 8 [91 Cal.Rptr.2d 273] (Samuels).) In such cases, the statute of
limitations is an affirmative defense that the defendant must plead in its answer and prove by a
preponderance of the evidence. (Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd.
(1985) 39 Cal.3d 57, 67, fn. 8 [216 Cal.Rptr. 115].)
In contrast, PERB has long held that, in order for a complaint to issue, the charging party
must allege facts establishing that the unfair practice occurred within the statute of limitations
period. In San Francisco Unified School District (1985) PERB Decision No. 501, the Board
10

stated that both EERA itself and PERB Regulation 32615(a)
10
require the charging party to
allege facts that establish when the unfair practice occurred. Because the charge failed to do so,
the Board could not determine whether the alleged unlawful conduct occurred within the
limitations period. Consequently, the Board affirmed the Board agent's dismissal
of
the charge
for lack
of
timeliness.
PERB continues to apply this rule to incoming charges. Indeed, PERB
Regulation 32620(b )(4) requires the Board agent to "determine whether the charge is subject to .
. . dismissal for lack
of
timeliness." Thus, unlike in civil actions, timeliness is part
of
the
charging party's prima facie case in PERB unfair practice proceedings. As a result, the statute
of
limitations is not a true affirmative defense because it negates an element
of
the prima facie case
rather than establishing a defense based on matters outside
of
the prima facie case. (See
Samuels, at p. 8 [holding that the statute
of
limitations was an affirmative defense because the
relevant statute did not make timeliness an element
of
the plaintiffs prima facie case].)
Nevertheless, in Long Beach CCD
I,
the Board characterized EERA's six-month statute
of
limitations
as
an affirmative defense that the respondent bears the burden
of
raising and
proving. This characterization comes from the Board's decision in Walnut Valley Unified
School District (1983) PERB Decision No. 289 (Walnut Valley), which appears to have changed
PERB's prior practice regarding the statute
of
limitations. In San Dieguito Union High School
District (1982) PERB Decision No. 194 (San Dieguito ), the Board affirmed the hearing officer's
dismissal
of
the charge for lack of timeliness because the record did not show that the alleged
unfair practice occurred within the six-month statute of limitations period. Importantly, the
iOPERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB Regulation 32615(a)(5) requires a charge to contain a "clear and
concise statement of the facts and conduct alleged to constitute an unfair practice."
11
stated that both EERA itself and PERB Regulation 32615(a)" require the charging party to
allege facts that establish when the unfair practice occurred. Because the charge failed to do so,
the Board could not determine whether the alleged unlawful conduct occurred within the
limitations period. Consequently, the Board affirmed the Board agent's dismissal of the charge
for lack of timeliness.
PERB continues to apply this rule to incoming charges. Indeed, PERB
Regulation 32620(b)(4) requires the Board agent to "determine whether the charge is subject to .
. . dismissal for lack of timeliness." Thus, unlike in civil actions, timeliness is part of the
charging party's prima facie case in PERB unfair practice proceedings. As a result, the statute of
limitations is not a true affirmative defense because it negates an element of the prima facie case
rather than establishing a defense based on matters outside of the prima facie case. (See
Samuels, at p. 8 [holding that the statute of limitations was an affirmative defense because the
relevant statute did not make timeliness an element of the plaintiff's prima facie case].)
Nevertheless, in Long Beach CCD I, the Board characterized EERA's six-month statute
of limitations as an affirmative defense that the respondent bears the burden of raising and
proving. This characterization comes from the Board's decision in Walnut Valley Unified
School District (1983) PERB Decision No. 289 (Walnut Valley), which appears to have changed
PERB's prior practice regarding the statute of limitations. In San Diegueto Union High School
District (1982) PERB Decision No. 194 (San Diegueto), the Board affirmed the hearing officer's
dismissal of the charge for lack of timeliness because the record did not show that the alleged
unfair practice occurred within the six-month statute of limitations period. Importantly, the
"PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB Regulation 32615(a)(5) requires a charge to contain a "clear and
concise statement of the facts and conduct alleged to constitute an unfair practice."
11

Board made no mention of the respondent having the burden of proving the charge was untimely.
Thus, before Walnut Valley, PERB seems to have required the charging party to prove timeliness
as part of its prima facie case at hearing.
The Board's restoration of the Walnut Valley rule in Long Beach CCD I has created a
system where PERB considers timeliness part of the prima facie case at the charge stage, but
once a complaint issues it is no longer part of the prima facie case but instead an affirmative
defense that the respondent must raise in its answer and prove by a preponderance of the
evidence at hearing. This shifting of the burden of proof on timeliness is contrary to the
Legislature's allocation of the burden of proof in civil proceedings as set forth in Evidence Code
section 500, 11 which states that "a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is asserting." The
Law Revision Commission Comment states that Evidence Code section 500 follows the basic
rule "that whatever facts a party must affirmatively plead he also has the burden of proving."
Because the current Walnut Valley scheme is contrary to this fundamental principle, we
overrule Walnut Valley and its progeny, including Long Beach CCD I, to the extent those cases
hold that the respondent bears both the burden of pleading the statute of limitations as an
affirmative defense in its answer and the burden of proving at hearing that the charge was
untimely. PERB's approach before Walnut Valley, as exemplified in San Dieguito, was
consistent with Evidence Code section 500 because it required the charging party to prove at
hearing what it alleged in its charge. Accordingly, we hold that the charging party bears the
1 PERB is not required in unfair practice cases to comply with "the technical rules of
evidence applied in the courts." (PERB Reg. 32176.) Nonetheless, such a fundamental rule of
evidence is entitled to great weight in the Board's administration of its unfair practice
proceedings.
12
Board made no mention of the respondent having the burden of proving the charge was untimely.
Thus, before Walnut Valley, PERB seems to have required the charging party to prove timeliness
as part of its prima facie case at hearing.
The Board's restoration of the Walnut Valley rule in Long Beach CCD I has created a
system where PERB considers timeliness part of the prima facie case at the charge stage, but
once a complaint issues it is no longer part of the prima facie case but instead an affirmative
defense that the respondent must raise in its answer and prove by a preponderance of the
evidence at hearing. This shifting of the burden of proof on timeliness is contrary to the
Legislature's allocation of the burden of proof in civil proceedings as set forth in Evidence Code
section 500, "which states that "a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is asserting." The
Law Revision Commission Comment states that Evidence Code section 500 follows the basic
rule "that whatever facts a party must affirmatively plead he also has the burden of proving."
Because the current Walnut Valley scheme is contrary to this fundamental principle, we
overrule Walnut Valley and its progeny, including Long Beach CCD I, to the extent those cases
hold that the respondent bears both the burden of pleading the statute of limitations as an
affirmative defense in its answer and the burden of proving at hearing that the charge was
untimely. PERB's approach before Walnut Valley, as exemplified in San Diegueto, was
consistent with Evidence Code section 500 because it required the charging party to prove at
hearing what it alleged in its charge. Accordingly, we hold that the charging party bears the
"PERB is not required in unfair practice cases to comply with "the technical rules of
evidence applied in the courts." (PERB Reg. 32176.) Nonetheless, such a fundamental rule of
evidence is entitled to great weight in the Board's administration of its unfair practice
proceedings.
12

burden of proving by a preponderance of the evidence that the charge was filed within the six-
month statute of limitations period. 12
2. 	Equitable Tolling
a. 	PERB's Ability to Equitably Toll
As noted above, the District argues in its exceptions that the Board should overrule
Long Beach CCD I and reinstate its decision in Regents, where the Board held that PERB
could not equitably toll the statutory limitation period because the limitation was jurisdictional.
Having reaffirmed that the limitation period in EERA section 3541.5(a)(l) is not jurisdictional,
we also reaffirm for the following reasons that equitable tolling is allowed under EERA.
The California Supreme Court recently addressed equitable tolling in McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88 [84 Cal.Rptr.3d 734]
(McDonald). Equitable tolling is a judicially created doctrine that operates independently of
codified statutes of limitation. (Id., at p. 99.) The purpose of the doctrine is to allow a party
who has several legal remedies to pursue one of them without forfeiting the other(s). (Id.,
at p. 100.) Equitable tolling is allowed unless: (1) the statute clearly states that its list of
tolling bases is exhaustive, or (2) "either the text of a statute or a manifest legislative policy
underlying it cannot be reconciled with permitting equitable tolling." (Id., at p. 105.)
None of these criteria is met here. EERA section 3541.5(a)(2) provides that the six-
month statute of limitations is tolled while the parties are engaged in contractual grievance
12In light of this holding, we do not adopt the last two sentences on page 14 of the
attached proposed decision, which state that the statute of limitations is an affirmative defense
which has been raised by the respondent and therefore the charging party now bears the burden
of demonstrating timeliness. Rather, as discussed above, the charging party bears the burden
of demonstrating timeliness at all stages of the unfair practice proceeding. This holding is
consistent with PERB Regulation 32178, which requires "[t]he charging party shall prove the
complaint by a preponderance of the evidence in order to prevail."
13
burden of proving by a preponderance of the evidence that the charge was filed within the six-
month statute of limitations period. 12
2. 	Equitable Tolling
a. 	PERB's Ability to Equitably Toll
As noted above, the District argues in its exceptions that the Board should overrule
Long Beach CCD I and reinstate its decision in Regents, where the Board held that PERB
could not equitably toll the statutory limitation period because the limitation was jurisdictional.
Having reaffirmed that the limitation period in EERA section 3541.5(a)(1) is not jurisdictional,
we also reaffirm for the following reasons that equitable tolling is allowed under EERA.
The California Supreme Court recently addressed equitable tolling in Mcdonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88 [84 Cal.Rptr.3d 734]
(McDonald). Equitable tolling is a judicially created doctrine that operates independently of
codified statutes of limitation. (Id., at p. 99.) The purpose of the doctrine is to allow a party
who has several legal remedies to pursue one of them without forfeiting the other(s). (Id.,
at p. 100.) Equitable tolling is allowed unless: (1) the statute clearly states that its list of
tolling bases is exhaustive, or (2) "either the text of a statute or a manifest legislative policy
underlying it cannot be reconciled with permitting equitable tolling." (Id., at p. 105.)
None of these criteria is met here. EERA section 3541.5(a)(2) provides that the six-
month statute of limitations is tolled while the parties are engaged in contractual grievance
"In light of this holding, we do not adopt the last two sentences on page 14 of the
attached proposed decision, which state that the statute of limitations is an affirmative defense
which has been raised by the respondent and therefore the charging party now bears the burden
of demonstrating timeliness. Rather, as discussed above, the charging party bears the burden
of demonstrating timeliness at all stages of the unfair practice proceeding. This holding is
consistent with PERB Regulation 32178, which requires "[the charging party shall prove the
complaint by a preponderance of the evidence in order to prevail."
13

procedures that end in binding arbitration or settlement. The statute contains no language
indicating that these are the only bases on which PERB can toll the statute of limitations. (See
Code Civ. Proc., sec. 340.6 [stating that "in no event shall the prescriptive period be tolled
except under those circumstances specified in the statute"].) Nor does the language of EERA
section 3541.S(a)(l) "suggest an implicit legislative intent to preclude equitable tolling."
(McDonald, at p. 107.) Indeed, EERA' s six-month limitation period is "typical of the short
limitations periods to which [the courts] have consistently extended equitable tolling
principles." (Ibid.)
Finally, there is no fundamental policy underlying EERA that would categorically
foreclose equitable tolling. EERA was enacted "to promote the improvement of personnel
management and employer-employee relations within the public school systems." (EERA
sec. 3540.) PERB has stated that "the central purpose of the EERA" is to promote
"harmonious labor relations." (Los Angeles Unified School District (1988) PERB Decision
No. 659.) The health and stability of a collective bargaining relationship is better maintained
by allowing the parties to resolve a dispute through negotiated, albeit non-binding, dispute
resolution procedures than through an adversarial proceeding before PERB. Accordingly,
equitable tolling can easily be reconciled with EERA' s fundamental purpose of promoting
harmonious labor relations.
In sum, there is nothing in the text or underlying purpose of EERA to indicate that the
Legislature intended to prohibit PERB from equitably tolling the six-month limitation period in
EERA section 3541.S(a)(l ). Therefore, we hold that EERA allows the Board to equitably toll
in appropriate circumstances.
14
procedures that end in binding arbitration or settlement. The statute contains no language
indicating that these are the only bases on which PERB can toll the statute of limitations. (See
Code Civ. Proc., sec. 340.6 [stating that "in no event shall the prescriptive period be tolled
except under those circumstances specified in the statute"].) Nor does the language of EERA
section 3541.5(a)(1) "suggest an implicit legislative intent to preclude equitable tolling."
(Mcdonald, at p. 107.) Indeed, EERA's six-month limitation period is "typical of the short
limitations periods to which [the courts] have consistently extended equitable tolling
principles." (Ibid.)
Finally, there is no fundamental policy underlying EERA that would categorically
foreclose equitable tolling. EERA was enacted "to promote the improvement of personnel
management and employer-employee relations within the public school systems." (EERA
sec. 3540.) PERB has stated that "the central purpose of the EERA" is to promote
"harmonious labor relations." (Los Angeles Unified School District (1988) PERB Decision
No. 659.) The health and stability of a collective bargaining relationship is better maintained
by allowing the parties to resolve a dispute through negotiated, albeit non-binding, dispute
resolution procedures than through an adversarial proceeding before PERB. Accordingly,
equitable tolling can easily be reconciled with EERA's fundamental purpose of promoting
harmonious labor relations.
In sum, there is nothing in the text or underlying purpose of EERA to indicate that the
Legislature intended to prohibit PERB from equitably tolling the six-month limitation period in
EERA section 3541.5(a)(1). Therefore, we hold that EERA allows the Board to equitably toll
in appropriate circumstances.
14

b. 	Scope of Equitable Tolling
We agree that the scope of equitable tolling set forth in Long Beach CCD I is
appropriate. Nonetheless, it is necessary to clarify one aspect of the legal standard that the
Board established for determining when the statute of limitations is equitably tolled. In
Long Beach CCD I, the Board stated that the limitation period should be tolled "[ w ]hen a
grievance has been filed utilizing a bilaterally agreed upon dispute resolution procedure." For
purposes of providing guidance to future parties, it is important to explicitly state what is
implicit in the above-quoted phrase: the dispute resolution procedure must be contained in a
written agreement negotiated by the parties, as it is in this case. In other words, the dispute
resolution process itself must be the product of collective bargaining between the parties, as
evidenced by a written memorialization of the parties' agreement. This limitation on the scope
of equitable tolling is consistent with EERA's objective "to promote and encourage the
resolution of disputes through the give and take of collective bargaining." (Modesto City
Schools (1983) PERB Decision No. 291.) In light of this clarification, we now hold that the
statute oflimitations is tolled during the period of time the parties are utilizing a non-binding
dispute resolution procedure if: (1) the procedure is contained in a written agreement
negotiated by the parties; (2) the procedure is being used to resolve the same dispute that is the
subject of the unfair practice charge; (3) the charging party reasonably and in good faith
pursues the procedure; and (4) tolling does not frustrate the purpose of the statutory limitation
period by causing surprise or prejudice to the respondent.
C. 	Application of Equitable Tolling in This Case
Applying the above test, we find that the Council met its burden of establishing by a
preponderance of the evidence that the statute of limitations was equitably tolled in this case.
It is undisputed that the Council and the District were parties to a negotiated, written interim
15
b. 	Scope of Equitable Tolling
We agree that the scope of equitable tolling set forth in Long Beach CCD I is
appropriate. Nonetheless, it is necessary to clarify one aspect of the legal standard that the
Board established for determining when the statute of limitations is equitably tolled. In
Long Beach CCD I, the Board stated that the limitation period should be tolled "[wjhen a
grievance has been filed utilizing a bilaterally agreed upon dispute resolution procedure." For
purposes of providing guidance to future parties, it is important to explicitly state what is
implicit in the above-quoted phrase: the dispute resolution procedure must be contained in a
written agreement negotiated by the parties, as it is in this case. In other words, the dispute
resolution process itself must be the product of collective bargaining between the parties, as
evidenced by a written memorialization of the parties' agreement. This limitation on the scope
of equitable tolling is consistent with EERA's objective "to promote and encourage the
resolution of disputes through the give and take of collective bargaining." (Modesto City
Schools (1983) PERB Decision No. 291.) In light of this clarification, we now hold that the
statute of limitations is tolled during the period of time the parties are utilizing a non-binding
dispute resolution procedure if: (1) the procedure is contained in a written agreement
negotiated by the parties; (2) the procedure is being used to resolve the same dispute that is the
subject of the unfair practice charge; (3) the charging party reasonably and in good faith
pursues the procedure; and (4) tolling does not frustrate the purpose of the statutory limitation
period by causing surprise or prejudice to the respondent.
C. 	Application of Equitable Tolling in This Case
Applying the above test, we find that the Council met its burden of establishing by a
preponderance of the evidence that the statute of limitations was equitably tolled in this case.
It is undisputed that the Council and the District were parties to a negotiated, written interim
15

grievance procedure and that the Council's grievance and unfair practice charge involved the
same dispute over the District's implementation of the 4/10 schedule during June and July
2001. Because the Council's grievance gave the District notice of the subject of the unfair
practice charge, tolling would not prejudice the District. (Victor Valley CCD.) Finally, for the
reasons set forth in the attached proposed decision, we find the Council "reasonably and in
good faith" utilized the interim grievance procedure by participating in informal grievance
conferences, filing a formal grievance and participating in mediation. Accordingly, we agree
with the ALJ that, because the statute of limitations was equitably tolled from the first informal
grievance conference on April 13, 2001, through the mediation session on August 2, 2001, the
Council's unfair practice charge was timely filed on January 25, 2002.
3. 	District's Remaining Exceptions
Aside from the exception discussed immediately below, the District's remaining
exceptions were also raised before the ALJ and are adequately and correctly addressed in the
proposed decision. For this reason, we do not address those exceptions here.
The District argues for the first time in its exceptions that it would not be equitable to
toll the statute of limitations in this case because the Council sought a different remedy before
PERB than it sought during the non-binding grievance process. In its June 20, 2001 grievance,
the Council sought vacation credit and/or back pay for classified employees who took vacation
time or leave without pay to avoid working a 10-hour day under the 4/10 schedule during June
and July 2001. The Council sought this same remedy before PERB, but also requested
overtime pay for all classified employees who worked over eight hours on any given day
during June and July 2001 as a result of the 4/10 schedule.
The District cites no authority, nor have we found any, for the proposition that
equitable tolling is not allowed unless the remedies sought in the non-binding dispute
16
grievance procedure and that the Council's grievance and unfair practice charge involved the
same dispute over the District's implementation of the 4/10 schedule during June and July
2001. Because the Council's grievance gave the District notice of the subject of the unfair
practice charge, tolling would not prejudice the District. (Victor Valley CCD.) Finally, for the
reasons set forth in the attached proposed decision, we find the Council "reasonably and in
good faith" utilized the interim grievance procedure by participating in informal grievance
conferences, filing a formal grievance and participating in mediation. Accordingly, we agree
with the ALJ that, because the statute of limitations was equitably tolled from the first informal
grievance conference on April 13, 2001, through the mediation session on August 2, 2001, the
Council's unfair practice charge was timely filed on January 25, 2002.
3 . 	District's Remaining Exceptions
Aside from the exception discussed immediately below, the District's remaining
exceptions were also raised before the ALJ and are adequately and correctly addressed in the
proposed decision. For this reason, we do not address those exceptions here.
The District argues for the first time in its exceptions that it would not be equitable to
toll the statute of limitations in this case because the Council sought a different remedy before
PERB than it sought during the non-binding grievance process. In its June 20, 2001 grievance,
the Council sought vacation credit and/or back pay for classified employees who took vacation
time or leave without pay to avoid working a 10-hour day under the 4/10 schedule during June
and July 2001. The Council sought this same remedy before PERB, but also requested
overtime pay for all classified employees who worked over eight hours on any given day
during June and July 2001 as a result of the 4/10 schedule.
The District cites no authority, nor have we found any, for the proposition that
equitable tolling is not allowed unless the remedies sought in the non-binding dispute
16

resolution procedure and the unfair practice proceeding are identical. However, there is
authority for the contrary proposition. In Elkins v. Derby (1974) 12 Cal.3d 410 [115 Cal.Rptr.
641] (Elkins), Elkins filed a workers' compensation claim over an on-the-job injury. (Id.,
at p. 413.) After the claim was rejected, Elkins filed a tort action against the employer based
on the same injury. (Ibid.) Because of the limitations placed on an employee's recovery by
the workers' compensation statutes, Elkins could not have recovered as much on his workers'
compensation claim as he potentially could have on his personal injury claim. (See Fermina v.
Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal.Rptr.2d 18) [stating that under California's
workers' compensation system an "employee is afforded relatively swift and certain payment
of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in
exchange, gives up the wider range of damages potentially available in tort" (emphasis
added)].) Nonetheless, the Supreme Court held that the statue of limitations on Elkins' tort
claim was equitably tolled during the proceedings on his workers' compensation claim.
(Elkins, at p. 412.) Based on this authority, we conclude that the Council's request for a
greater remedy from PERB than it sought in the non-binding dispute resolution procedure does
not preclude equitable tolling of the statute of limitations. 13
4. 	Council's Exception to the Proposed Remedy
The Council filed a single exception over the ALJ' s refusal to award overtime to all
classified employees who worked over eight hours on any given day during June and July 2001
13 Additionally, though it does not appear to be so in this case, it is possible that the
parties' negotiated alternative dispute resolution procedure cannot provide the same remedy as
PERB. 	We see no compelling reason to exclude such cases from the application of equitable
tolling.
17
resolution procedure and the unfair practice proceeding are identical. However, there is
authority for the contrary proposition. In Elkins v. Derby (1974) 12 Cal.3d 410 [115 Cal.Rptr.
641] (Elkins), Elkins filed a workers' compensation claim over an on-the-job injury. (Id.,
at p. 413.) After the claim was rejected, Elkins filed a tort action against the employer based
the workers' compensation statutes, Elkins could not have recovered as much on his workers'
compensation claim as he potentially could have on his personal injury claim. (See Fermino v.
Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal.Rptr.2d 18] [stating that under California's
workers' compensation system an "employee is afforded relatively swift and certain payment
of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in
exchange, gives up the wider range of damages potentially available in tort" (emphasis
added)].) Nonetheless, the Supreme Court held that the statue of limitations on Elkins' tort
claim was equitably tolled during the proceedings on his workers' compensation claim.
(Elkins, at p. 412.) Based on this authority, we conclude that the Council's request for a
greater remedy from PERB than it sought in the non-binding dispute resolution procedure does
not preclude equitable tolling of the statute of limitations.
4 . 	Council's Exception to the Proposed Remedy
The Council filed a single exception over the ALJ's refusal to award overtime to all
classified employees who worked over eight hours on any given day during June and July 2001
Additionally, though it does not appear to be so in this case, it is possible that the
parties' negotiated alternative dispute resolution procedure cannot provide the same remedy as
PERB. We see no compelling reason to exclude such cases from the application of equitable
tolling.
17

as a result of the 4/10 schedule. 14 The Council's exception challenges the ALJ' s finding that,
because the majority of employees surveyed by the Council indicated they would willingly
work the 4/10 schedule, those employees concurred with the 4/10 schedule and thus were not
entitled to overtime under the CBA. We agree that the employees were not entitled to
overtime as part of the remedy for the following reasons.
The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result of the change.
(California State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
923, 946 [59 Cal.Rptr.2d 488].) PERB will only order backpay of overtime as part of a "make
whole" remedy when the unilateral change eliminated or reduced overtime hours to which the
employee otherwise would have been entitled. (San Jacinto Unified School District (1994)
PERB Decision No. 1078.) The record does not establish that the District's implementation of
the 4/10 schedule caused the affected employees to lose overtime hours to which they were
entitled. Consequently, an award of overtime is not necessary to make them whole.
Accordingly, the ALJ's proposed remedy adequately and completely compensates affected
employees for the losses they suffered as a result of the District's unlawful unilateral
implementation of the 4/10 schedule.
1 Attached to the Council's exception was a seven-page spreadsheet. PERB
Regulation 32300(b) provides that "Reference shall be made in the statement of exceptions
only to matters contained in the record of the case." The spreadsheet was not introduced at the
hearing and thus was not part of the record before the Board on appeal. ,AJthough PERB has
authority to order the record reopened for the taking of further evidence (Reg. 32320(a)(2)),
the standard to be applied is the same as that governing requests for reconsideration.
(San Mateo Community College District (1985) PERB Decision No. 543; see also, California
State University (1990) PERB Decision No. 799a-H.) Thus, in offering the spreadsheet as part
of its statement of exceptions, the Council should have followed the process set forth in PERB
Regulation 32410(a), including a declaration under penalty of perjury that establishes grounds
for consideration of the new evidence. Because no such declaration was filed with the
exception, the Board has not considered the spreadsheet in deciding this case.
18
as a result of the 4/10 schedule."* The Council's exception challenges the ALJ's finding that,
because the majority of employees surveyed by the Council indicated they would willingly
work the 4/10 schedule, those employees concurred with the 4/10 schedule and thus were not
entitled to overtime under the CBA. We agree that the employees were not entitled to
overtime as part of the remedy for the following reasons.
The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result of the change.
California State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
923, 946 [59 Cal.Rptr.2d 488].) PERB will only order backpay of overtime as part of a "make
whole" remedy when the unilateral change eliminated or reduced overtime hours to which the
employee otherwise would have been entitled. (San Jacinto Unified School District (1994)
PERB Decision No. 1078.) The record does not establish that the District's implementation of
the 4/10 schedule caused the affected employees to lose overtime hours to which they were
entitled. Consequently, an award of overtime is not necessary to make them whole.
Accordingly, the ALJ's proposed remedy adequately and completely compensates affected
employees for the losses they suffered as a result of the District's unlawful unilateral
implementation of the 4/10 schedule.
*Attached to the Council's exception was a seven-page spreadsheet. PERB
Regulation 32300(b) provides that "Reference shall be made in the statement of exceptions
only to matters contained in the record of the case." The spreadsheet was not introduced at the
hearing and thus was not part of the record before the Board on appeal. Although PERB has
authority to order the record reopened for the taking of further evidence (Reg. 32320(a)(2)),
the standard to be applied is the same as that governing requests for reconsideration.
(San Mateo Community College District (1985) PERB Decision No. 543; see also, California
State University (1990) PERB Decision No. 799a-H.) Thus, in offering the spreadsheet as part
of its statement of exceptions, the Council should have followed the process set forth in PERB
Regulation 32410(a), including a declaration under penalty of perjury that establishes grounds
for consideration of the new evidence. Because no such declaration was filed with the
exception, the Board has not considered the spreadsheet in deciding this case.
18

ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
matter, it is found that the Long Beach Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c), by unilaterally implementing a four-day-per-week, 10-hour-per-day work schedule for the
District's classified employees during June and July 2001.
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the Long
Beach Council of Classified Employees (Council), as the exclusive representative of the
District's classified employees, by unilaterally changing classified employee work schedules.
2. 	Interfering with the right of employees to be represented by the Council
by the conduct described in paragraph A. l. above.
3. 	Denying the Council the right to represent its members by the conduct
described in paragraph A. l. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Restore vacation credits and compensatory time off to those employees
who used those forms of leave to reduce the 10-hour workdays imposed upon them in June and
July 2001.
2. 	Pay backpay, with interest at the rate of seven percent per annum, to
those employees who took leave without pay to reduce the 10-hour workdays imposed upon
them in June and July 2001.
19
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
matter, it is found that the Long Beach Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c), by unilaterally implementing a four-day-per-week, 10-hour-per-day work schedule for the
District's classified employees during June and July 2001.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1 . 	Failing and refusing to meet and negotiate in good faith with the Long
Beach Council of Classified Employees (Council), as the exclusive representative of the
District's classified employees, by unilaterally changing classified employee work schedules.
2. 	Interfering with the right of employees to be represented by the Council
by the conduct described in paragraph A.1. above.
3 . 	Denying the Council the right to represent its members by the conduct
described in paragraph A.1. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
.	1 	Restore vacation credits and compensatory time off to those employees
who used those forms of leave to reduce the 10-hour workdays imposed upon them in June and
July 2001.
2. 	Pay backpay, with interest at the rate of seven percent per annum, to
those employees who took leave without pay to reduce the 10-hour workdays imposed upon
them in June and July 2001.
19

3. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies of the Notice attached hereto. The Notice must be signed by an authorized agent of the
District, indicating the District will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the Council.
Chair Neuwald and Members Rystrom and Dowdin Calvillo joined in this Decision.
20
3 . 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies of the Notice attached hereto. The Notice must be signed by an authorized agent of the
District, indicating the District will comply with the terms of this Order. Such posting shall be
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the Council.
Chair Neuwald and Members Rystrom and Dowdin Calvillo joined in this Decision.
20

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4373-E, Long Beach Council of
Classified Employees v. Long Beach Community College District, in which all parties had the
right to participate, it has been found that the Long Beach Community College District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.S(a), (b) and (c), by unilaterally implementing a four-day-per-week, 10-hour-per-
day work schedule for the District's classified employees during June and July 2001.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the Long
Beach Council of Classified Employees (Council), as the exclusive representative of the
District's classified employees, by unilaterally changing classified employee work schedules.
2. 	Interfering with the right of employees to be represented by the Council
by the conduct described in paragraph A. I. above.
3. 	Denying the Council the right to represent its members by the conduct
described in paragraph A.1. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Restore vacation credits and compensatory time off to those employees
who used those forms of leave to reduce the 10-hour workdays imposed upon them in June and
July 2001.
2. 	Pay backpay, with interest at the rate of seven percent per annum, to
those employees who took leave without pay to reduce the 10-hour workdays imposed upon
them in June and July 2001.
Dated: 	LONG BEACH COMMUNITY COLLEGE DISTRICT
By: ------------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DA TE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4373-E, Long Beach Council of
Classified Employees v. Long Beach Community College District, in which all parties had the
right to participate, it has been found that the Long Beach Community College District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.5(a), (b) and (c), by unilaterally implementing a four-day-per-week, 10-hour-per-
day work schedule for the District's classified employees during June and July 2001.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 . 	Failing and refusing to meet and negotiate in good faith with the Long
Beach Council of Classified Employees (Council), as the exclusive representative of the
District's classified employees, by unilaterally changing classified employee work schedules.
2. Interfering with the right of employees to be represented by the Council
by the conduct described in paragraph A.1. above.
3. 	Denying the Council the right to represent its members by the conduct
described in paragraph A.I. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1 . 	Restore vacation credits and compensatory time off to those employees
who used those forms of leave to reduce the 10-hour workdays imposed upon them in June and
July 2001.
2. 	Pay backpay, with interest at the rate of seven percent per annum, to
those employees who took leave without pay to reduce the 10-hour workdays imposed upon
them in June and July 2001.
Dated: 	LONG BEACH COMMUNITY COLLEGE DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LONG BEACH COUNCIL OF CLASSIFIED
EMPLOYEES,
Charging Party,
V.
LONG BEACH COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4373-E
PROPOSED DECISION
(3/28/05)
Appearances: Rodney W. Wickers, Attorney, for Long Beach Council
of
Classified
Employees; Parker & Covert
LLP
by Spencer E. Covert, Attorney, for Long Beach Community
College District.
Before Thomas
J.
Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that an employer unilaterally and unlawfully changed a
work schedule policy. The employer denies any unlawful conduct.
This case already has a long procedural history. The Long Beach Council
of
Classified
Employees (LBCCE) filed an unfair practice charge against the Long Beach Community
College District (District) on January 25, 2002. The General Counsel
of
the Public
Employment Relations Board (PERB) dismissed the charge on March 26, 2002, explaining to
LBCCE's representative:
I received a letter from you on March 25, 2002 via fax. 	In your
letter, you assert that the charge is timely because PERB has
adopted the doctrine of equitable tolling, citing Victor Valley
Joint Union High School District (1982) PERB Decision No. 273.
You acknowledge that charging party [LBCCE] had notice of the
proposed summer work schedule change at least as early as April
13, 2001, when the parties began engaging in good faith
negotiations regarding the District's April 10, 2001
memorandum. The parties continued to meet in an effort to
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LONG BEACH COUNCIL OF CLASSIFIED
EMPLOYEES,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-4373-E
V . 	PROPOSED DECISION
(3/28/05)
LONG BEACH COMMUNITY COLLEGE
DISTRICT,
Respondent.
Appearances: Rodney W. Wickers, Attorney, for Long Beach Council of Classified
Employees; Parker & Covert LLP by Spencer E. Covert, Attorney, for Long Beach Community
College District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that an employer unilaterally and unlawfully changed a
work schedule policy. The employer denies any unlawful conduct.
This case already has a long procedural history. The Long Beach Council of Classified
Employees (LBCCE) filed an unfair practice charge against the Long Beach Community
College District (District) on January 25, 2002. The General Counsel of the Public
Employment Relations Board (PERB) dismissed the charge on March 26, 2002, explaining to
LBCCE's representative:
I received a letter from you on March 25, 2002 via fax. In your
letter, you assert that the charge is timely because PERB has
adopted the doctrine of equitable tolling, citing Victor Valley
Joint Union High School District (1982) PERB Decision No. 273.
You acknowledge that charging party [LBCCE] had notice of the
proposed summer work schedule change at least as early as April
13, 2001, when the parties began engaging in good faith
negotiations regarding the District's April 10, 2001
memorandum. The parties continued to meet in an effort to

resolve the dispute, culminating in a mediation session on August
3, 200 I. You end by stating that "the Parties engaged in a
procedure that constituted the pursuit of an alternative remedy
which would toll the statute of limitations ... "
You are correct in stating that PERB once recognized the doctrine
of equitable tolling under certain circumstances; however this
was prior to 1990. PERB case law no longer recognizes the
doctrine. 	San Diego Unified School District (1991) PERB
Decision No. 885; University of California (1990) PERB
Decision No. 826-H. PERB will not assert jurisdiction over an
unfair practice charge that is not filed within the six-month period
for filing and may not issue a complaint under those
circumstances. Consequently, charging party has not met the
burden of showing timeliness in filing as part of its prima facie
case.
LBCCE appealed the dismissal to PERB itself.
PERB issued its decision on the appeal on December 8, 2003. In that decision, Long
Beach Community College District (2003) PERB Decision No. 1564, PERB announced the
return of the doctrine of equitable tolling, which it stated as follows:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to resolve
the same dispute which is the subject of the charge, the statue of
limitations is tolled during the period of time the grievance is
being pursued if: 	(1) the charging party reasonably and in good
faith pursues the grievance; and (2) tolling did not frustrate the
purpose of the statutory limitation period by causing surprise or
prejudice to the respondent.
On applying the doctrine to LBCCE's charge, PERB stated:
It is undisputed that the contractual grievance filed by
LBCCE was part of a "bilaterally agreed upon dispute resolution
procedure." That procedure ended with an unsuccessful
mediation session on August 2, 2001. Under the doctrine of
equitable tolling, the period of time utilized to exhaust the
contractual grievance process is not counted towards the six-
month limitations period. (See State of California (Secretary of
State) (1990) PERB Decision No. 812-S.) Accordingly, after
August 2, 2001, the limitations period began to run again.
LBCCE did not file its unfair practice charge until January 25,
2
resolve the dispute, culminating in a mediation session on August
3, 2001. You end by stating that "the Parties engaged in a
procedure that constituted the pursuit of an alternative remedy
which would toll the statute of limitations . . ."
You are correct in stating that PERB once recognized the doctrine
of equitable tolling under certain circumstances; however this
was prior to 1990. PERB case law no longer recognizes the
doctrine. San Diego Unified School District (1991) PERB
Decision No. 885; University of California (1990) PERB
Decision No. 826-H. PERB will not assert jurisdiction over an
unfair practice charge that is not filed within the six-month period
for filing and may not issue a complaint under those
circumstances. Consequently, charging party has not met the
burden of showing timeliness in filing as part of its prima facie
case.
LBCCE appealed the dismissal to PERB itself.
PERB issued its decision on the appeal on December 8, 2003. In that decision, Long
Beach Community College District (2003) PERB Decision No. 1564, PERB announced the
return of the doctrine of equitable tolling, which it stated as follows:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to resolve
the same dispute which is the subject of the charge, the statue of
limitations is tolled during the period of time the grievance is
being pursued if: (1) the charging party reasonably and in good
faith pursues the grievance; and (2) tolling did not frustrate the
purpose of the statutory limitation period by causing surprise or
prejudice to the respondent.
On applying the doctrine to LBCCE's charge, PERB stated:
It is undisputed that the contractual grievance filed by
LBCCE was part of a "bilaterally agreed upon dispute resolution
procedure." That procedure ended with an unsuccessful
mediation session on August 2, 2001. Under the doctrine of
equitable tolling, the period of time utilized to exhaust the
contractual grievance process is not counted towards the six-
month limitations period. (See State of California (Secretary of
State) (1990) PERB Decision No. 812-S.) Accordingly, after
August 2, 2001, the limitations period began to run again.
LBCCE did not file its unfair practice charge until January 25,
2

2002. Thus, even after the contractual grievance ended, LBCCE
waited five months and twenty-three days before filing its charge.
What is unclear is when the contractual grievance
procedure began. According to the charge, LBCCE was informed
of the District's intent to change the summer work schedule as
early as April 10, 2001. LBCCE did not file its formal first-level
grievance until June 20, 2001. However, the contractual
grievance also provides for an informal grievance stage. There is
evidence in the record that LBCCE met with the District to
discuss the proposed schedule change as early as April 13, 2001.
What is unclear is whether that meeting was intended to
constitute LBCCE's initiation of the grievance process.
In light of this ambiguity, PERB remanded the case to its General Counsel for further
investigation.
On January 26, 2004, the PERB General Counsel asked LBCCE and the District for
statements on "whether the April 13, 2001 meeting was intended to constitute LBCCE' s
initiation of the grievance procedure." On February 5, 2004, LBCCE filed a statement
asserting that the meeting was the beginning of the informal stage of the grievance procedure.
On February 13, 2004, the District filed a statement agreeing that the meeting "constituted the
LBCCE's initiation of the informal grievance stage and was intended to constitute LBCCE's
m1tiat1on	• • • 	• 	o_L-F t h,e grievance	. 	process. "1 A ccor d"mg ly, on M arc h O_,., ..,':>QQ4 , t,,e,.	h 	PEDR	--'-'"'---' GTenera,1
Counsel issued a complaint against the District.
The District filed an answer to the PERB complaint on March 26, 2004, denying any
unlawful conduct and raising the six-month statute of limitations as one of its defenses. PERB
held informal settlement conferences on l\1ay 12 and (by telephone) June 1 and July 6, 2004,
but the case was not settled. PERB held a formal hearing on October 27-29, 2004. With the
receipt of final post-hearing briefs on January 25, 2005, the case was submitted for decision.
1 The District disagreed, however, with "the contention [of LBCCE] that the informal
stage continued beyond May 11, 2001," because there was "no agreement to extend the
grievance time limits."
3
2002. Thus, even after the contractual grievance ended, LBCCE
waited five months and twenty-three days before filing its charge.
What is unclear is when the contractual grievance
procedure began. According to the charge, LBCCE was informed
of the District's intent to change the summer work schedule as
early as April 10, 2001. LBCCE did not file its formal first-level
grievance until June 20, 2001. However, the contractual
grievance also provides for an informal grievance stage. There is
evidence in the record that LBCCE met with the District to
discuss the proposed schedule change as early as April 13, 2001.
What is unclear is whether that meeting was intended to
constitute LBCCE's initiation of the grievance process.
In light of this ambiguity, PERB remanded the case to its General Counsel for further
investigation.
On January 26, 2004, the PERB General Counsel asked LBCCE and the District for
statements on "whether the April 13, 2001 meeting was intended to constitute LBCCE's
initiation of the grievance procedure." On February 5, 2004, LBCCE filed a statement
asserting that the meeting was the beginning of the informal stage of the grievance procedure.
On February 13, 2004, the District filed a statement agreeing that the meeting "constituted the
LBCCE's initiation of the informal grievance stage and was intended to constitute LBCCE's
initiation of the grievance process." Accordingly, on March 9, 2004, the PERB General
Counsel issued a complaint against the District.
The District filed an answer to the PERB complaint on March 26, 2004, denying any
unlawful conduct and raising the six-month statute of limitations as one of its defenses. PERB
held informal settlement conferences on May 12 and (by telephone) June 1 and July 6, 2004,
but the case was not settled. PERB held a formal hearing on October 27-29, 2004. With the
receipt of final post-hearing briefs on January 25, 2005, the case was submitted for decision.
The District disagreed, however, with "the contention [of LBCCE] that the informal
stage continued beyond May 11, 2001," because there was "no agreement to extend the
grievance time limits."

FINDINGS OF FACT
The District is a public school employer under the Educational Employment Relations
Act (EERA).2 LBCCE is an employee organization under EERA and is the exclusive
representative of a unit of the District's classified employees.
At the beginning of the PERR hearing, LBCCE and the District stipulated as follows:
1. The Long Beach Community College District
("LBCCD") determined to implement a change in the work
schedule from June 4, 2001 through July 27, 2001, and notice
thereof was given by Memorandum from Mr. Victor Collins
dated April 10, 2001 (Jt. Ex. 7), to Shannon Willson, President,
LBCCE.
2. LBCCD changed the work schedule for most classified
employees from eight (8) hours a day, five (5) days a week to
four (4) days a week, ten (10) hours a day ("4/1 O") and
implemented the change without overtime pay for work over
eight (8) hours but less than ten (10) hours for the 4 days and 40
hours, and without negotiation with LBCCE, the exclusive
representative of the Classified Employees of LBCCD.
3. Most LBCCE members followed the 4/10 work
schedule. Some of the members were permitted by LBCCD to
use their Vacation, Compensatory time and leave without pay
when necessary to accomplish the 4/10 work schedule.
4. The LBCCE, using the Interim Grievance Procedure (Jt.
Ex. 6), grieved the implementation of the 4/10 work schedule by
filing a Grievance on June 20, 2001 (Jt. Ex. 10).
5. Additionally, in accordance with the Grievance
Procedure, the Parties participated in a mediation session on
August 2, 2001. The mediation session resulted in non-agreement
and Arbitration was not available under the Interim Grievance
Procedure (Jt. Ex. 6).
6. The Administrative Law Judge shall retain jurisdiction
to determine the amount, if any, of back pay, should the Charging
Party prevail and should the Parties be unable to agree.
LBCCE and the District also stipulated to the admission of 20 joint exhibits.
2 EERA is codified at Government Code section 3540 and following.
4
FINDINGS OF FACT
The District is a public school employer under the Educational Employment Relations
Act (EERA)." LBCCE is an employee organization under EERA and is the exclusive
representative of a unit of the District's classified employees.
At the beginning of the PERB hearing, LBCCE and the District stipulated as follows:
1. The Long Beach Community College District
("LBCCD") determined to implement a change in the work
schedule from June 4, 2001 through July 27, 2001, and notice
thereof was given by Memorandum from Mr. Victor Collins
dated April 10, 2001 (Jt. Ex. 7), to Shannon Willson, President,
LBCCE.
2. LBCCD changed the work schedule for most classified
employees from eight (8) hours a day, five (5) days a week to
four (4) days a week, ten (10) hours a day ("4/10") and
implemented the change without overtime pay for work over
eight (8) hours but less than ten (10) hours for the 4 days and 40
hours, and without negotiation with LBCCE, the exclusive
representative of the Classified Employees of LBCCD.
3. Most LBCCE members followed the 4/10 work
schedule. Some of the members were permitted by LBCCD to
use their Vacation, Compensatory time and leave without pay
when necessary to accomplish the 4/10 work schedule.
4. The LBCCE, using the Interim Grievance Procedure (Jt.
Ex. 6), grieved the implementation of the 4/10 work schedule by
filing a Grievance on June 20, 2001 (Jt. Ex. 10).
5. Additionally, in accordance with the Grievance
Procedure, the Parties participated in a mediation session on
August 2, 2001. The mediation session resulted in non-agreement
and Arbitration was not available under the Interim Grievance
Procedure (Jt. Ex. 6).
6. The Administrative Law Judge shall retain jurisdiction
to determine the amount, if any, of back pay, should the Charging
Party prevail and should the Parties be unable to agree.
LBCCE and the District also stipulated to the admission of 20 joint exhibits.
EERA is codified at Government Code section 3540 and following.

This case arises out of a contract dispute during the California energy crisis of 2000-
2001. The contract in question was negotiated by the District not with LBCCE but with
LBCCE's predecessor as exclusive representative, the California School Employees
Association (CSEA). The District and CSEA had an agreement (CSEA agreement) for the
term July 1994 through June 1997, later extended through June 1998. PERB certified LBCCE,
then known as the AFT Council of Classified Employees, as the new exclusive representative
in March 2000. No successor to the CSEA agreement has been negotiated, except for an
interim grievance procedure.
The contract dispute centers on Article XII (Hours and Overtime) of the CSEA
agreement. That article provides in relevant part:
A. 	Workday
1. 	The workday for full-time unit employees shall be eight
(8) hours, subject to the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80
workweek. Each unit employee shall be assigned a fixed,
regular shift. The fixed shift may be changed by the
District for compelling business necessity after a 22
working day notice to and consultation with the unit
employee and notification to CSEA. Employees may
waive the 22 working day notice.
With references [sic] to the above (A. I.) the District shall
ask for volunteers first. 	If there are no volunteers then the
least senior employee(s) shall be assigned.
2 . 	When an employee desires to have a temporary reduction
or permanent reduction of hours, the employee shall
notify CSEi\ and the District. CSEA and the District shall
meet and negotiate . Any agreement to reduce hours must
be approved by the District and CSEA and shall have a
signed agreement. The agreement shall include such
things as how work load currently being done by the
employee will be handled, whether the employee will
continue to receive medical benefits, and how the leave
from the District will be charged.
5
This case arises out of a contract dispute during the California energy crisis of 2000-
2001. The contract in question was negotiated by the District not with LBCCE but with
LBCCE's predecessor as exclusive representative, the California School Employees
Association (CSEA). The District and CSEA had an agreement (CSEA agreement) for the
term July 1994 through June 1997, later extended through June 1998. PERB certified LBCCE,
then known as the AFT Council of Classified Employees, as the new exclusive representative
in March 2000. No successor to the CSEA agreement has been negotiated, except for an
interim grievance procedure.
The contract dispute centers on Article XII (Hours and Overtime) of the CSEA
agreement. That article provides in relevant part:
A. 	Workday
1. 	The workday for full-time unit employees shall be eight
(8) hours, subject to the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80
workweek. Each unit employee shall be assigned a fixed,
regular shift. The fixed shift may be changed by the
District for compelling business necessity after a 22
working day notice to and consultation with the unit
employee and notification to CSEA. Employees may
waive the 22 working day notice.
With references [sic] to the above (A.1.) the District shall
ask for volunteers first. If there are no volunteers then the
least senior employee(s) shall be assigned.
When an employee desires to have a temporary reduction
or permanent reduction of hours, the employee shall
notify CSEA and the District. CSEA and the District shall
meet and negotiate . Any agreement to reduce hours must
be approved by the District and CSEA and shall have a
signed agreement. The agreement shall include such
things as how work load currently being done by the
employee will be handled, whether the employee will
continue to receive medical benefits, and how the leave
from the District will be charged.
5

B. 	Workweek
1. 	The workweek shall be forty ( 40) hours for full-time unit
employees. The workweek for all unit employees shall be
a fixed and regular five (5) consecutive day period except
as indicated in Section A and in the following paragraph.
2. 	The District may, with the concurrence of the affected unit
employee(s), institute a full-time workweek of four (4)
fixed and regular consecutive days, at ten (10) hours per
day and the 9/80 workweek. The District may abolish the
four ( 4) and ten (10) and the 9/80 after it is established for
good and sufficient reason for a specific group of unit
employees after suitable notice to and consultation with
the unit employee(s) affected and notice to CSEA.
In departments where more than one person desires to
work the 4/10 or the 9/80 workweeks and it is not possible
to allow all employees that desire the shift to work it at
the same time, employees shall be assigned alternate 4/10
or 9/80 assignments for six month periods. Assignments
shall be based on seniority.
C. 	Notification to union to establish OR MODIFY A
POSITIONS' [sic] WORK
HOURS/WORKWEEK/WEEKEND SCHEDULE.
1. 	MANAGERS WHO DESIRE TO CHANGE A
POSITIONS' [sic] WORK HOURS OR WORKWEEK
WITH THE EXCEPTION OF THE 10/4 OR 9/80 WORK
SCHFDULE (B.2) SHALT. NOTIFY THE EXECUTIVP
DEAN OF HUMAN RESOURCES BY COMPLETING A
REQUEST FOR CHANGE IN A CLASSIFIED
EMPLOYEE'S WORK SCHEDULE, (APPENDIX G).
THIS NOTIFICATION IS ALSO REQUIRED IF AN
EMPLOYEE REQUESTS THE CHANGE. THE
AFFECTED EMPLOYEE(S) NEEDS TO BE NOTIFIED
IN ACCORDANCE WITH A.l. OF THIS ARTICLE.
"ARTICLE XII, SECTION C.l WILL REMAIN IN
EFFECT PER ARTICLE XXXI, SECTION C [concerning
contract administration]." [Emphasis in the original.]
2. 	In the event the District desires to assign variable hours
and/or workweek to a position/employee who was not
previously so assigned, the District shall notify CSEA of
their intent, and upon request from CSEA, the District
6
B. 	Workweek
1 . 	The workweek shall be forty (40) hours for full-time unit
employees. The workweek for all unit employees shall be
a fixed and regular five (5) consecutive day period except
as indicated in Section A and in the following paragraph.
2. 	The District may, with the concurrence of the affected unit
employee(s), institute a full-time workweek of four (4)
fixed and regular consecutive days, at ten (10) hours per
day and the 9/80 workweek. The District may abolish the
four (4) and ten (10) and the 9/80 after it is established for
good and sufficient reason for a specific group of unit
employees after suitable notice to and consultation with
the unit employee(s) affected and notice to CSEA.
In departments where more than one person desires to
work the 4/10 or the 9/80 workweeks and it is not possible
to allow all employees that desire the shift to work it at
the same time, employees shall be assigned alternate 4/10
or 9/80 assignments for six month periods. Assignments
shall be based on seniority.
C. 	Notification to union to establish OR MODIFY A
POSITIONS' [sic] WORK
HOURS/WORKWEEK/WEEKEND SCHEDULE.
1. 	MANAGERS WHO DESIRE TO CHANGE A
POSITIONS' [sic] WORK HOURS OR WORKWEEK
WITH THE EXCEPTION OF THE 10/4 OR 9/80 WORK
SCHEDULE (B.2) SHALL NOTIFY THE EXECUTIVE
DEAN OF HUMAN RESOURCES BY COMPLETING A
REQUEST FOR CHANGE IN A CLASSIFIED
EMPLOYEE'S WORK SCHEDULE, (APPENDIX G).
THIS NOTIFICATION IS ALSO REQUIRED IF AN
EMPLOYEE REQUESTS THE CHANGE. THE
AFFECTED EMPLOYEE(S) NEEDS TO BE NOTIFIED
IN ACCORDANCE WITH A.1. OF THIS ARTICLE.
"ARTICLE XII, SECTION C.1 WILL REMAIN IN
EFFECT PER ARTICLE XXXI, SECTION C [concerning
contract administration]." [Emphasis in the original.]
2. 	n the event the District desires to assign variable hours	I
and/or workweek to a position/employee who was not
previously so assigned, the District shall notify CSEA of
their intent, and upon request from CSEA, the District

shall meet and negotiate concerning the proposed
assignments.
Appendix G to the CSEA agreement, referenced in Article XII, Section C. l, is a form titled
"Request for Change in Classified Employee's Work Schedule." The top of the form states in
part:
When managers or supervisors need to make a change in an
employee's or work unit's schedule, they need to complete the
following information and forward it to . . . Executive Dean-
Human Resources before implementing the revised work
schedule. After negotiating the change with CSEA, the manager
will be informed of the disposition of the request. A proposed
change cannot take place until the authorization has been
received.
The form calls in part for the manager or supervisor to list the names of affected employees
and their current and proposed schedules. It also calls in part for the manager or supervisor to
describe the reasons for, the consequences of, and any alternatives to the proposed schedule
change. The bottom of the form states:
I have determined after thoughtful review and analysis that a
compelling business necessity exists to change the hours of
employment.
This last statement was to be signed by the executive dean of human resources.
Article XII also states in part:
E. 	Overtime
2. 	Unit employees will be compensated at the rate of
one and one-half (1-1/2) times the unit employee's
regular rate for work accomplished in excess of
eight (8) hours per day (or ten (10) hours per day
in the case of four-day-workweek employees) or
forty (40) hours per week.
7
shall meet and negotiate concerning the proposed
assignments.
Appendix G to the CSEA agreement, referenced in Article XII, Section C.1, is a form titled
"Request for Change in Classified Employee's Work Schedule." The top of the form states in
part:
When managers or supervisors need to make a change in an
employee's or work unit's schedule, they need to complete the
following information and forward it to . . . Executive Dean-
Human Resources before implementing the revised work
schedule. After negotiating the change with CSEA, the manager
will be informed of the disposition of the request. A proposed
change cannot take place until the authorization has been
received.
The form calls in part for the manager or supervisor to list the names of affected employees
and their current and proposed schedules. It also calls in part for the manager or supervisor to
describe the reasons for, the consequences of, and any alternatives to the proposed schedule
change. The bottom of the form states:
I have determined after thoughtful review and analysis that a
compelling business necessity exists to change the hours of
employment.
This last statement was to be signed by the executive dean of human resources.
Article XII also states in part:
E. 	Overtime
2. 	Unit employees will be compensated at the rate of
one and one-half (1-1/2) times the unit employee's
regular rate for work accomplished in excess of
eight (8) hours per day (or ten (10) hours per day
in the case of four-day-workweek employees) or
forty (40) hours per week.
7

Article XII, Section F .2, gives employees the option of requesting compensatory time off in
lieu of overtime compensation. 	Article XII, Section G, provides shift differentials for
employees regularly working evening swing shifts or after-midnight graveyard shifts.
On April 10, 2001, Victor R. Collins (Collins), the District's executive dean of human
services, sent the following memo to Shannon Willson (Willson), president of LBCCE:
The District, like other major employers, will experience the
detrimental impact of the recent rate increase approved by the
Public Utility Commission. Even with this major rate increase, it
is expected that electrical shortages will occur during the summer
months. In order to fulfill our educational obligations to students
that enroll in our summer programs, the District must take action
to modify its hours of operation.
The summer educational program commencing on June 4, 2001
will be limited to a 4-day schedule, Monday through Thursday.
No classes will be offered at the LAC [Liberal Arts Campus] or
PCC [Pacific Coast Campus] facilities on Friday or Saturday
during that time, under the current operational plan. In order to
reduce operation expenses, the District will also institute a 4-day
work-week of 10-hours per day for the majority of the classified
service. The only categories not involved in this plan will be
those that would not be affected by loss of power and/or lighting.
For that limited group, a 4/10 plan will remain optional.
The modified work-week will remain in effect for the period of
Monday, June 4, 2001 through Thursday, July 26, 2001.
Commencing on Monday, July 30, 2001, all employees will
revert to their regular 5-day work-week schedule.
District administration recognizes that the 4/10 plan may create
problems with child care and other family situations for some
classified personnel. In those situations, employees may request
to use a prorated amount of vacation in order to continue an 8-
hour assignment for the 4-day period. ,ii~rea administrators will
evaluate those requests in an effort to accommodate employees
while meeting the operational needs of the respective
departments.
It is important to note that the 4/10 plan will mean that employees
who miss work for vacation or sick leave will be charged 10-
hours of the applicable leave. In addition, the July 4, 2001
holiday will result in employees being absent for the 10-hour day
8
Article XII, Section F.2, gives employees the option of requesting compensatory time off in
lieu of overtime compensation. Article XII, Section G, provides shift differentials for
employees regularly working evening swing shifts or after-midnight graveyard shifts.
On April 10, 2001, Victor R. Collins (Collins), the District's executive dean of human
services, sent the following memo to Shannon Willson (Willson), president of LBCCE:
The District, like other major employers, will experience the
detrimental impact of the recent rate increase approved by the
Public Utility Commission. Even with this major rate increase, it
is expected that electrical shortages will occur during the summer
months. In order to fulfill our educational obligations to students
that enroll in our summer programs, the District must take action
to modify its hours of operation.
The summer educational program commencing on June 4, 2001
will be limited to a 4-day schedule, Monday through Thursday.
No classes will be offered at the LAC [Liberal Arts Campus] or
PCC [Pacific Coast Campus] facilities on Friday or Saturday
during that time, under the current operational plan. In order to
reduce operation expenses, the District will also institute a 4-day
work-week of 10-hours per day for the majority of the classified
service. The only categories not involved in this plan will be
those that would not be affected by loss of power and/or lighting.
For that limited group, a 4/10 plan will remain optional.
The modified work-week will remain in effect for the period of
Monday, June 4, 2001 through Thursday, July 26, 2001.
Commencing on Monday, July 30, 2001, all employees will
revert to their regular 5-day work-week schedule.
District administration recognizes that the 4/10 plan may create
problems with child care and other family situations for some
classified personnel. In those situations, employees may request
to use a prorated amount of vacation in order to continue an 8-
hour assignment for the 4-day period. Area administrators will
evaluate those requests in an effort to accommodate employees
while meeting the operational needs of the respective
departments.
It is important to note that the 4/10 plan will mean that employees
who miss work for vacation or sick leave will be charged 10-
hours of the applicable leave. In addition, the July 4, 2001
holiday will result in employees being absent for the 10-hour day
8

as opposed to the traditional 8-hours under a normal working
schedule. Overtime will continue to apply for work beyond 40-
hours per week including any assigned work on Friday and/or
Saturday during the period of June 4 through July 26, 2001.
The Human Resources Department has requested that
administrators begin communicating with assigned classified
personnel regarding the work schedule in order to allow adequate
planning time and to begin assignment consideration of
individual circumstances for affected personnel. If AFT /CCE
representatives would like to discuss this matter in more detail,
please do not hesitate to arrange an appointment to meet with me.
This April 10 memo did not cite Article XII or any other part of the CSEA agreement.
Relevant to the events after the April 10 memo (and ultimately to the timeliness of
LBCCE's charge) is the interim grievance procedure negotiated between the District and
LBCCE in April 2000, when LBCCE was still known as the AFT Council of Classified
Employees. The procedure provides in part:
B. 	Informal Level
Within twenty (20) days after the unit employee and/or
AFT knew, or reasonably should have known, of the
alleged violation, the grievant shall attempt to resolve the
grievance by an informal conference with the immediate
supervisor.
C. 	Formal Level
Level 1 (Dean/Director of Area Being Grieved)
Within 20 days after the informal conference, should the
grievance not be resolved, the grievance [sic] must present
his/her grievance in writing on the District Classified
Grievance form to the Dean/Director of the area being
grieved.
A "day" is defined as a week day when District offices are open.
The procedure also provides in part:
9
as opposed to the traditional 8-hours under a normal working
schedule. Overtime will continue to apply for work beyond 40-
hours per week including any assigned work on Friday and/or
Saturday during the period of June 4 through July 26, 2001.
The Human Resources Department has requested that
administrators begin communicating with assigned classified
personnel regarding the work schedule in order to allow adequate
planning time and to begin assignment consideration of
individual circumstances for affected personnel. If AFT/CCE
representatives would like to discuss this matter in more detail,
please do not hesitate to arrange an appointment to meet with me.
This April 10 memo did not cite Article XII or any other part of the CSEA agreement.
Relevant to the events after the April 10 memo (and ultimately to the timeliness of
LBCCE's charge) is the interim grievance procedure negotiated between the District and
LBCCE in April 2000, when LBCCE was still known as the AFT Council of Classified
Employees. The procedure provides in part:
B. 	Informal Level
Within twenty (20) days after the unit employee and/or
AFT knew, or reasonably should have known, of the
alleged violation, the grievant shall attempt to resolve the
grievance by an informal conference with the immediate
supervisor.
C. 	Formal Level
Level 1 (Dean/Director of Area Being Grieved)
Within 20 days after the informal conference, should the
grievance not be resolved, the grievance [sic] must present
his/her grievance in writing on the District Classified
Grievance form to the Dean/Director of the area being
grieved.
A "day" is defined as a week day when District offices are open.
The procedure also provides in part:
9

D. 	Miscellaneous
1.	
Failure
of
the grievant to file or appeal a grievance
within the time limits contained in this agreement
constitutes a waiver
of
that particular grievance.
Time limits may be extended by mutual agreement
of
the parties.
Level 2
of
the procedure is before a vice president or executive dean. Level 3 is mediation and
is the final level.
Upon receiving Collins's April 10 memo, Willson immediately called Collins and set
up a meeting for April 13, 2001. That meeting was attended by Willson, Collins, LBCCE's
field representative Skip Seiser (Seiser), and the District's interim human resources director
Les Allen (Allen). Neither Seiser nor Allen testified at the PERB hearing.
At the April
13
meeting, Willson never said the meeting was an informal grievance
conference. She testified that in her view it was "sort
of
like a merged negotiation attempt,
informal grievance process." Willson knew the District had negotiated modified workweeks
with CSEA for some previous summers (up to and including the summer
of
1998), and she
insisted that the District negotiate the subject with LBCCE. She remembered stating that
if
the
District did not negotiate, LBCCE would have to file a grievance. Collins did not remember
such a statement. He regarded the meeting as "consultation" under Article XII, Section A, and
he said so at the meeting. 	Willson was sympathetic to the District's need to control energy
costs, but she did not believe that Article XII allowed the District, under any circumstances, to
impose a 4/10 work schedule on employees without negotiating.
LBCCE made several proposals at the April 13 meeting. One proposal was to allow all
employees to work four eight-hour days but still be paid for five eight-hour days. Another
proposal was to allow employees who could not work four ten-hour days to continue to work
five eight-hour days somewhere on campus. 	The District rejected these two proposals. The
D. 	Miscellaneous
1 . 	Failure of the grievant to file or appeal a grievance
within the time limits contained in this agreement
constitutes a waiver of that particular grievance.
Time limits may be extended by mutual agreement
of the parties.
Level 2 of the procedure is before a vice president or executive dean. Level 3 is mediation and
is the final level.
Upon receiving Collins's April 10 memo, Willson immediately called Collins and set
up a meeting for April 13, 2001. That meeting was attended by Willson, Collins, LBCCE's
field representative Skip Seiser (Seiser), and the District's interim human resources director
Les Allen (Allen). Neither Seiser nor Allen testified at the PERB hearing.
At the April 13 meeting, Willson never said the meeting was an informal grievance
conference. She testified that in her view it was "sort of like a merged negotiation attempt,
informal grievance process." Willson knew the District had negotiated modified workweeks
with CSEA for some previous summers (up to and including the summer of 1998), and she
insisted that the District negotiate the subject with LBCCE. She remembered stating that if the
District did not negotiate, LBCCE would have to file a grievance. Collins did not remember
such a statement. He regarded the meeting as "consultation" under Article XII, Section A, and
he said so at the meeting. Willson was sympathetic to the District's need to control energy
costs, but she did not believe that Article XII allowed the District, under any circumstances, to
impose a 4/10 work schedule on employees without negotiating.
LBCCE made several proposals at the April 13 meeting. One proposal was to allow all
employees to work four eight-hour days but still be paid for five eight-hour days. Another
proposal was to allow employees who could not work four ten-hour days to continue to work
five eight-hour days somewhere on campus. The District rejected these two proposals. The
10

District agreed, however, to let LBCCE survey the employees and to meet again to discuss the
results.
In late April 2001, LBCCE did survey the employees and received a signed response
from most
of
them.
	Of
the almost 200 employees responding, the great majority indicated, "I
can and will work the 4/10 schedule," without reservation (and sometimes with enthusiasm).
Other employees indicated they could not work the schedule, or they could work it only with
some accommodation, or they had another preference.
On May
1,
2001, Collins sent a memo to employees stating:
On April 13, 2001 the district met with AFT [LBCCE]
representatives to reaffirm the district's earlier communication
of
the decision to implement a 4/10 work-schedule for the period
of
June 4, 2001 through July 27, 2001. A copy
of
the memorandum
is attached for your information and addresses the compelling
business necessity for the change. A recent 40%+ increase for
electrical costs approved by the Public Utility Commission (PUC)
is not adequately budgeted in the 2000-2001 operating budget
of
the district. It is also necessary to take appropriate steps to
reduce the budgetary implications
of
the action by the PUC
during the summer months
of
the new budget year.
The district has requested AFT to communicate specific problems
for bargaining unit members created by this decision. We will
consider proper alternatives that will allow the district to maintain
essential service levels during Monday through Thursday
of
the
affected two months. We have also asked area deans, directors
and management personnel to gather the same information.
The majority
of
all district operations will be closed on Friday in
order to conserve electrical usage and reduce unnecessary budget
expenditures for utility costs. The district will continue
conservation efforts for the foreseeable future to avoid sig11ificant
detrimental impact
of
[sic] the district's operational budget.
On the next day, May 2, 2001, Collins met with Willson (without Seiser or Allen) to discuss
the survey results.
11
District agreed, however, to let LBCCE survey the employees and to meet again to discuss the
results.
In late April 2001, LBCCE did survey the employees and received a signed response
from most of them. Of the almost 200 employees responding, the great majority indicated, "I
can and will work the 4/10 schedule," without reservation (and sometimes with enthusiasm).
Other employees indicated they could not work the schedule, or they could work it only with
some accommodation, or they had another preference.
On May 1, 2001, Collins sent a memo to employees stating:
On April 13, 2001 the district met with AFT [LBCCE]
representatives to reaffirm the district's earlier communication of
the decision to implement a 4/10 work-schedule for the period of
June 4, 2001 through July 27, 2001. A copy of the memorandum
is attached for your information and addresses the compelling
business necessity for the change. A recent 40%+ increase for
electrical costs approved by the Public Utility Commission (PUC)
is not adequately budgeted in the 2000-2001 operating budget of
the district. It is also necessary to take appropriate steps to
reduce the budgetary implications of the action by the PUC
during the summer months of the new budget year.
The district has requested AFT to communicate specific problems
for bargaining unit members created by this decision. We will
consider proper alternatives that will allow the district to maintain
essential service levels during Monday through Thursday of the
affected two months. We have also asked area deans, directors
and management personnel to gather the same information.
The majority of all district operations will be closed on Friday in
order to conserve electrical usage and reduce unnecessary budget
expenditures for utility costs. The district will continue
conservation efforts for the foreseeable future to avoid significant
detrimental impact of [sic] the district's operational budget.
On the next day, May 2, 2001, Collins met with Willson (without Seiser or Allen) to discuss
the survey results.
11

At the May 2 meeting, Willson again never said the meeting was an informal grievance
conference. She remembered again stating that if the District did not negotiate, LBCCE would
have to file a grievance. Collins again did not remember such a statement. Collins did tell
Willson that the District would make some accommodations but that (as Willson testified) "the
4/10 was the only option that employees would have."
On May 7, 2001, Willson sent Collins a memo beginning:
As per our conversation of May 2 nd , I am sending you some
specific concerns regarding the challenges faced by some
classified personnel to work the 4/10 schedule that the District is
proposing. I received 197 surveys, so this list may not cover all
potential problems that may arise.
Prior to listing these specific concerns I would like to repeat my
threcommendations that the workweek for June 4 	through July
26t\ be a 32-hour week. This would be the simplest and most
effective way to handle the situation. Otherwise, there may be
contractual ramifications.
• 	The District negotiated with CSEA with regard to the
contract and changing the work schedule for the summer
session in May of 1998, and offered the option of
employees working Fridays if they could not work the 4
day week.
If this is again an option, the LBCCE will not pursue the
grievance or Unfair Labor Practice avenues. This would
be the second favorite choice of resolution.
On May 11, 2001, Collins responded with a memo stating in part:
Thank you very much for summarizing the information you
received in 197 surveys from classified staff. It is important to
emphasize that, effective June 4, 2001, the district will implement
a 4/10 work schedule that will continue through July 27, 2001.
That modification is in accordance with the terms and conditions
of classified service wherein the district may modify the fixed,
regular shift of classified employees for "compelling business
necessity." The district also retains the right to determine the
times and hours of operation as well as the methods and means to
provide its various services.
12
At the May 2 meeting, Willson again never said the meeting was an informal grievance
conference. She remembered again stating that if the District did not negotiate, LBCCE would
have to file a grievance. Collins again did not remember such a statement. Collins did tell
Willson that the District would make some accommodations but that (as Willson testified) "the
4/10 was the only option that employees would have."
On May 7, 2001, Willson sent Collins a memo beginning:
As per our conversation of May 2", I am sending you some
specific concerns regarding the challenges faced by some
classified personnel to work the 4/10 schedule that the District is
proposing. I received 197 surveys, so this list may not cover all
potential problems that may arise.
Prior to listing these specific concerns I would like to repeat my
recommendations that the workweek for June 4" through July
26", be a 32-hour week. This would be the simplest and most
effective way to handle the situation. Otherwise, there may be
contractual ramifications.
The District negotiated with CSEA with regard to the	. contract and changing the work schedule for the summer
session in May of 1998, and offered the option of
employees working Fridays if they could not work the 4
day week.
If this is again an option, the LBCCE will not pursue the
grievance or Unfair Labor Practice avenues. This would
be the second favorite choice of resolution.
On May 11, 2001, Collins responded with a memo stating in part:
Thank you very much for summarizing the information you
received in 197 surveys from classified staff. It is important to
emphasize that, effective June 4, 2001, the district will implement
a 4/10 work schedule that will continue through July 27, 2001.
That modification is in accordance with the terms and conditions
of classified service wherein the district may modify the fixed,
regular shift of classified employees for "compelling business
necessity." The district also retains the right to determine the
times and hours of operation as well as the methods and means to
provide its various services.
12

The majority of employee problems that you have summarized in
the attachment to the memorandum of May 7, 2001 relate to 1)
Request for a 9/80 work schedule; 2) Flexibility of starting and/or
ending time, and 3) Days of vacation leave. As I have indicated,
both verbally and in writing, the 4/10 work schedule is the only
alternative established by the district. The reason for that
decision is to avoid the significant cost of electricity on Fridays.
In addition, the schedule will also minimize the apparent
problems if our community is subject to electrical blackouts.
I am sure that you are aware that the district will incur significant
costs as a result of recent and ongoing electrical usage charges
established through the Public Utilities Commission. The district
believes that there is sufficient justification in this budgetary
impact to declare the 4/10 work schedule a compelling business
necessity. In so doing, we will give consideration to the
difficulties created for classified employees within the bargaining
unit represented by the AFT [LBCCE]. We will also
communicate directly with you as appropriate during this period.
It does not appear that Willson replied to this memo.
As far as the evidence shows, the only communication between LBCCE and the District
after May 11, 2001, and before June 20, 2001, concerned questions posed by Seiser to Allen
about departments that would still be open on Fridays throughout June and July. On June 6,
2001, Allen forwarded those questions to Collins, who answered them the same day. 	On June
7, 2001, Allen forwarded those answers to Willson.
District offices were closed for Memorial Day on May 28, 2001. They were also closed
on Fridays beginning June 8, 2001. They were therefore open for 24 workdays between May
11, 2001, and June 20, 2001.
On June 20, 2001, Willson filed with Collins a Level 1 grievance, alleging in part that
the District had violated Article XII by "imposing a 4/10 work week." The grievance sought
the following remedy:
All classified employees who would not normally have taken
vacation or leave without pay between June 4 through July 27,
13
The majority of employee problems that you have summarized in
the attachment to the memorandum of May 7, 2001 relate to 1)
Request for a 9/80 work schedule; 2) Flexibility of starting and/or
ending time, and 3) Days of vacation leave. As I have indicated,
both verbally and in writing, the 4/10 work schedule is the only
alternative established by the district. The reason for that
decision is to avoid the significant cost of electricity on Fridays.
In addition, the schedule will also minimize the apparent
problems if our community is subject to electrical blackouts.
I am sure that you are aware that the district will incur significant
costs as a result of recent and ongoing electrical usage charges
established through the Public Utilities Commission. The district
believes that there is sufficient justification in this budgetary
impact to declare the 4/10 work schedule a compelling business
necessity. In so doing, we will give consideration to the
difficulties created for classified employees within the bargaining
unit represented by the AFT [LBCCE]. We will also
communicate directly with you as appropriate during this period.
It does not appear that Willson replied to this memo.
As far as the evidence shows, the only communication between LBCCE and the District
after May 11, 2001, and before June 20, 2001, concerned questions posed by Seiser to Allen
about departments that would still be open on Fridays throughout June and July. On June 6,
2001, Allen forwarded those questions to Collins, who answered them the same day. On June
7, 2001, Allen forwarded those answers to Willson.
District offices were closed for Memorial Day on May 28, 2001. They were also closed
on Fridays beginning June 8, 2001. They were therefore open for 24 workdays between May
11, 2001, and June 20, 2001.
On June 20, 2001, Willson filed with Collins a Level 1 grievance, alleging in part that
the District had violated Article XII by "imposing a 4/10 work week." The grievance sought
the following remedy:
All classified employees who would not normally have taken
vacation or leave without pay between June 4 through July 27,
13

2001, shall be credited back vacation time and/or back pay if
leave without pay was taken.
The District must negotiate with the LBCCE in all matters
pertaining to wages, hours and working conditions. 	[Emphasis in
the original.]
Collins referred the grievance to Allen, with a note to include it with other grievances
scheduled for mediation at Level 3 of the procedure. Collins testified that the grievance was
"untimely" but he hoped "some discussion [with the help of a mediator] would allow us to
have a better mutual acceptance of the situation."
Mediation took place on August 2, 2001, but did not resolve the matter. LBCCE filed
its unfair practice charge on January 25, 2002.
ISSUES
1. 	Was LBCCE's charge timely?
2. 	Did the District unilaterally change work schedule policy?
CONCLUSIONS OF LAW
Timeliness
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The statute of limitations is an affirmative defense
which has been raised by the respondent in this case (the District). (Long Beach Community
College District, supra, PERB Decision No. 1564.) Therefore, charging party (LBCCE) now
bears the burden of demonstrating that the charge is timely filed. 	(Cf. Tehachapi Unified
14
2001, shall be credited back vacation time and/or back pay if
leave without pay was taken.
The District must negotiate with the LBCCE in all matters
pertaining to wages, hours and working conditions. [Emphasis in
the original. ]
Collins referred the grievance to Allen, with a note to include it with other grievances
scheduled for mediation at Level 3 of the procedure. Collins testified that the grievance was
"untimely" but he hoped "some discussion [with the help of a mediator] would allow us to
have a better mutual acceptance of the situation."
Mediation took place on August 2, 2001, but did not resolve the matter. LBCCE filed
its unfair practice charge on January 25, 2002.
ISSUES
1 . 	Was LBCCE's charge timely?
2. 	Did the District unilaterally change work schedule policy?
CONCLUSIONS OF LAW
Timeliness
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The statute of limitations is an affirmative defense
which has been raised by the respondent in this case (the District). (Long Beach Community
College District, supra, PERB Decision No. 1564.) Therefore, charging party (LBCCE) now
bears the burden of demonstrating that the charge is timely filed. (Cf. Tehachapi Unified
14

School District (1993) PERB Decision No. 1024; State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.)
In Long Beach Community College District, supra, PERB Decision No. 1564, as noted
in the procedural history above, PERB announced the return of the doctrine of equitable
tolling, which it stated as follows:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to resolve
the same dispute which is the subject of the charge, the statue of
limitations is tolled during the period of time the grievance is
being pursued if: 	(1) the charging party reasonably and in good
faith pursues the grievance; and (2) tolling did not frustrate the
purpose of the statutory limitation period by causing surprise or
prejudice to the respondent.
On applying the doctrine to LBCCE's charge, PERB stated:
It is undisputed that the contractual grievance filed by
LBCCE was part of a "bilaterally agreed upon dispute resolution
procedure." That procedure ended with an unsuccessful
mediation session on August 2, 2001. Under the doctrine of
equitable tolling, the period of time utilized to exhaust the
contractual grievance process is not counted towards the six-
month limitations period. (See State of California (Secretary of
State) (1990) PERB Decision No. 812-S.) Accordingly, after
August 2, 2001, the limitations period began to run again.
LBCCE did not file its unfair practice charge until January 25,
2002. Thus, even after the contractual grievance ended, LBCCE
waited five months and twenty-three days before filing its charge.
What is unclear is when the contractual grievance
procedure began. According to the charge, LBCCE was informed
of the District's intent to change the summer work schedule as
early as April 10, 2001. LBCCE did not file its formal first-level
grievance until June 20, 2001. However, the contractual
grievance also provides for an informal grievance stage. There is
evidence in the record that LBCCE met with the District to
discuss the proposed schedule change as early as April 13, 2001.
What is unclear is whether that meeting was intended to
constitute LBCCE's initiation of the grievance process.
15
School District (1993) PERB Decision No. 1024; State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.)
In Long Beach Community College District, supra, PERB Decision No. 1564, as noted
in the procedural history above, PERB announced the return of the doctrine of equitable
tolling, which it stated as follows:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to resolve
the same dispute which is the subject of the charge, the statue of
limitations is tolled during the period of time the grievance is
being pursued if: (1) the charging party reasonably and in good
faith pursues the grievance; and (2) tolling did not frustrate the
purpose of the statutory limitation period by causing surprise or
prejudice to the respondent.
On applying the doctrine to LBCCE's charge, PERB stated:
It is undisputed that the contractual grievance filed by
LBCCE was part of a "bilaterally agreed upon dispute resolution
procedure." That procedure ended with an unsuccessful
mediation session on August 2, 2001. Under the doctrine of
equitable tolling, the period of time utilized to exhaust the
contractual grievance process is not counted towards the six-
month limitations period. (See State of California (Secretary of
State) (1990) PERB Decision No. 812-S.) Accordingly, after
August 2, 2001, the limitations period began to run again.
LBCCE did not file its unfair practice charge until January 25,
2002. Thus, even after the contractual grievance ended, LBCCE
waited five months and twenty-three days before filing its charge.
What is unclear is when the contractual grievance
procedure began. According to the charge, LBCCE was informed
of the District's intent to change the summer work schedule as
early as April 10, 2001. LBCCE did not file its formal first-level
grievance until June 20, 2001. However, the contractual
grievance also provides for an informal grievance stage. There is
evidence in the record that LBCCE met with the District to
discuss the proposed schedule change as early as April 13, 2001.
What is unclear is whether that meeting was intended to
constitute LBCCE's initiation of the grievance process.
15

In light
of
this ambiguity, PERB remanded the case to its General Counsel for further
investigation.
In its Decision No. 1564, PERB seemed to indicate that the only unresolved question
with regard to equitable tolling in this case was whether the meeting
of
April 13, 2001, "was
intended to constitute LBCCE's initiation
of
the grievance process." As stated in the
procedural history above, the PERB complaint was issued after the District agreed in writing
that the April
13
meeting "constituted the LBCCE's initiation
of
the informal grievance stage
and was intended to constitute LBCCE's initiation
of
the grievance process."
The District now argues to the contrary, however, because at the meetings
of
April
13
and May 2, 2001, LBCCE President Willson never said either meeting was an "informal
grievance conference." I find this argument unpersuasive. The negotiated interim grievance
procedure does not require that a grievant say any particular words. What it requires is that a
grievant "attempt to resolve the grievance by an informal conference with the immediate
supervisor." That is what LBCCE attempted to do. There is no evidence that its attempt was
unreasonable or in bad faith.
Furthermore, I credit Willson's testimony that at the April
13
and May 2 meetings she
said that
if
the District did not negotiate, LBCCE would have to file a grievance. This
testimony is consistent with her follow-up memo
of
May 7, 2001, in which she stated that
if
the District agreed to a particular option "LBCCE will not pursue the grievance or Unfair
Practice avenues." The District was thus on notice that
if
it did not agree it could expect a
formal grievance or an unfair practice charge or both.
Of course, the District did not agree, as it made abundantly clear in Collins's reply
memo of May 11, 2001. After that, LBCCE let 24 full workdays go by before it filed a formal
grievance, even though the interim grievance procedure required that a formal grievance be
16
In light of this ambiguity, PERB remanded the case to its General Counsel for further
investigation.
In its Decision No. 1564, PERB seemed to indicate that the only unresolved question
with regard to equitable tolling in this case was whether the meeting of April 13, 2001, "was
intended to constitute LBCCE's initiation of the grievance process." As stated in the
procedural history above, the PERB complaint was issued after the District agreed in writing
that the April 13 meeting "constituted the LBCCE's initiation of the informal grievance stage
and was intended to constitute LBCCE's initiation of the grievance process."
The District now argues to the contrary, however, because at the meetings of April 13
and May 2, 2001, LBCCE President Willson never said either meeting was an "informal
grievance conference." I find this argument unpersuasive. The negotiated interim grievance
procedure does not require that a grievant say any particular words. What it requires is that a
grievant "attempt to resolve the grievance by an informal conference with the immediate
supervisor." That is what LBCCE attempted to do. There is no evidence that its attempt was
unreasonable or in bad faith.
Furthermore, I credit Willson's testimony that at the April 13 and May 2 meetings she
said that if the District did not negotiate, LBCCE would have to file a grievance. This
testimony is consistent with her follow-up memo of May 7, 2001, in which she stated that if
the District agreed to a particular option "LBCCE will not pursue the grievance or Unfair
Practice avenues." The District was thus on notice that if it did not agree it could expect a
formal grievance or an unfair practice charge or both.
Of course, the District did not agree, as it made abundantly clear in Collins's reply
memo of May 11, 2001. After that, LBCCE let 24 full workdays go by before it filed a formal
grievance, even though the interim grievance procedure required that a formal grievance be
16

filed within 20 workdays after an informal conference. If the District had rejected LBCCE's
formal grievance as untimely, I would have concluded (1) that the rejection was within the
District's rights, (2) that the negotiated grievance process had ended no later than May 11,
2001, and (3) that any equitable tolling had also ended.
The District, however, did not reject LBCCE's grievance as untimely, but rather moved
it immediately to mediation at Level 3 of the procedure. The District's actions were consistent
with the final sentence of Section D .1 of the procedure, which states, "Time limits may be
extended by mutual agreement of the parties." It appears that LBCCE and the District had no
written or verbal agreement to extend the time limits, but again I think that what the parties did
is more important than what they said. By processing LBCCE's grievance, the District
effectively agreed to extend the time limits for filing a Level 1 grievance.
I therefore conclude that from at least the meeting of April 13, 2001, through the
mediation session of August 2, 2001, LBCCE was utilizing the negotiated interim grievance
procedure to resolve its contract dispute with the District. I further conclude that the statute of
limitations was tolled during that period of time. Accordingly, I conclude that LBCCE's
charge, filed on January 25, 2002, was timely.
Unilateral Change
In determining whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or the "totality of the conduct" test, depending on the specific conduct
involved and the effect of such conduct on the negotiating process. (Stockton Unified School
District (1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if certain criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
17
filed within 20 workdays after an informal conference. If the District had rejected LBCCE's
formal grievance as untimely, I would have concluded (1) that the rejection was within the
District's rights, (2) that the negotiated grievance process had ended no later than May 1 1,
2001, and (3) that any equitable tolling had also ended.
The District, however, did not reject LBCCE's grievance as untimely, but rather moved
it immediately to mediation at Level 3 of the procedure. The District's actions were consistent
with the final sentence of Section D.1 of the procedure, which states, "Time limits may be
extended by mutual agreement of the parties." It appears that LBCCE and the District had no
written or verbal agreement to extend the time limits, but again I think that what the parties did
is more important than what they said. By processing LBCCE's grievance, the District
effectively agreed to extend the time limits for filing a Level 1 grievance.
I therefore conclude that from at least the meeting of April 13, 2001, through the
mediation session of August 2, 2001, LBCCE was utilizing the negotiated interim grievance
procedure to resolve its contract dispute with the District. I further conclude that the statute of
limitations was tolled during that period of time. Accordingly, I conclude that LBCCE's
charge, filed on January 25, 2002, was timely.
Unilateral Change
In determining whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or the "totality of the conduct" test, depending on the specific conduct
involved and the effect of such conduct on the negotiating process. (Stockton Unified School
District (1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if certain criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
17

negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
In the present case, there is no question that the District imposed the 4/10 schedule on
employees without negotiating that decision with LBCCE, and there is no question that work
schedules are within the scope ofrepresentation. The question is whether the District's
decision represented a change in policy or simply an exercise of its contractual rights.
As previously stated, the relevant contract language is from Article XII (Hours and
Overtime) of the CSEA agreement:
A. 	Workday
1. 	The workday for full-time unit employees shall be eight
(8) hours, subject to the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80
workweek. Each unit employee shall be assigned a fixed,
regular shift. The fixed shift may be changed by the
District for compelling business necessity after a 22
working day notice to and consultation with the unit
employee and notification to CSEA. Employees may
waive the 22 working day notice.
With references [sic] to the above (A.l.) the District shall
ask for volunteers first. If there are no volunteers then the
least senior employee(s) shall be assigned.
2. 	When an employee desires to have a temporary reduction
or permanent reduction of hours, the employee shall
notify CSEA and the District. CSEA and the District shall
meet and negotiate . Any agreement to reduce hours must
be approved by the District and CSEA and shall have a
signed agreement. The agreement shall include such
things as how work load currently being done by the
employee will be handled, whether the employee will
continue to receive medical benefits, and how the leave
from the District will be charged.
B. 	Workweek
1. 	The workweek shall be forty (40) hours for full-time unit
employees. The workweek for all unit employees shall be
18
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
In the present case, there is no question that the District imposed the 4/10 schedule on
employees without negotiating that decision with LBCCE, and there is no question that work
schedules are within the scope of representation. The question is whether the District's
decision represented a change in policy or simply an exercise of its contractual rights.
As previously stated, the relevant contract language is from Article XII (Hours and
Overtime) of the CSEA agreement:
A. 	Workday
1. 	The workday for full-time unit employees shall be eight
8) hours, subject to the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80
workweek. Each unit employee shall be assigned a fixed,
regular shift. The fixed shift may be changed by the
District for compelling business necessity after a 22
working day notice to and consultation with the unit
employee and notification to CSEA. Employees may
waive the 22 working day notice.
With references [sic] to the above (A.1.) the District shall
ask for volunteers first. If there are no volunteers then the
least senior employee(s) shall be assigned.
2. 	When an employee desires to have a temporary reduction
or permanent reduction of hours, the employee shall
notify CSEA and the District. CSEA and the District shall
meet and negotiate . Any agreement to reduce hours must
be approved by the District and CSEA and shall have a
signed agreement. The agreement shall include such
things as how work load currently being done by the
employee will be handled, whether the employee will
continue to receive medical benefits, and how the leave
from the District will be charged.
B 	Workweek
1 . 	The workweek shall be forty (40) hours for full-time unit
employees. The workweek for all unit employees shall be
18

a fixed and regular five (5) consecutive day period except
as indicated in Section A and in the following paragraph.
2. 	The District may, with the concurrence of the affected unit
employee(s), institute a full-time workweek of four (4)
fixed and regular consecutive days, at ten ( 10) hours per
day and the 9/80 workweek. The District may abolish the
four (4) and ten (10) and the 9/80 after it is established for
good and sufficient reason for a specific group of unit
employees after suitable notice to and consultation with
the unit employee(s) affected and notice to CSEA.
In departments where more than one person desires to
work the 4/10 or the 9/80 workweeks and it is not possible
to allow all employees that desire the shift to work it at
the same time, employees shall be assigned alternate 4/10
or 9/80 assignments for six month periods. Assignments
shall be based on seniority.
C. 	Notification to union to establish OR MODIFY A
POSITIONS' [sic] WORK
HOURS/WORKWEEK/WEEKEND SCHEDULE.
1. 	MANAGERS WHO DESIRE TO CHANGE A
POSITIONS' [sic] WORK HOURS OR WORKWEEK
WITH THE EXCEPTION OF THE 10/4 OR 9/80 WORK
SCHEDULE (B.2) SHALL NOTIFY THE EXECUTIVE
DEAN OF HUMAN RESOURCES BY COMPLETING A
REQUEST FOR CHANGE IN A CLASSIFIED
EMPLOYEE'S WORK SCHEDULE, (APPENDIX G).
THIS NOTIFICATION IS ALSO REQUIRED IF AN
EMPLOYEE REQUESTS THE CHANGE. THE
AFFECTED EMPLOYEE(S) NEEDS TO BE NOTIFIED
IN ACCORDANCE WITH A. l. OF THIS ARTICLE.
"ARTICLE XII, SECTION C.1 WILL REMAIN IN
EFFECT PER ARTICLE XXXI, SECTION C [concerning
contract administration]." [Emphasis in the original.]
2. 	In the event the District desires to assign variable hours
and/or workweek to a position/employee who was not
previously so assigned, the District shall notify CSEA of
their intent, and upon request from CSEA, the District
shall meet and negotiate concerning the proposed
assignments.
19
a fixed and regular five (5) consecutive day period except
as indicated in Section A and in the following paragraph.
2. 	The District may, with the concurrence of the affected unit
employee(s), institute a full-time workweek of four (4)
fixed and regular consecutive days, at ten (10) hours per
day and the 9/80 workweek. The District may abolish the
four (4) and ten (10) and the 9/80 after it is established for
good and sufficient reason for a specific group of unit
employees after suitable notice to and consultation with
the unit employee(s) affected and notice to CSEA.
In departments where more than one person desires to
work the 4/10 or the 9/80 workweeks and it is not possible
to allow all employees that desire the shift to work it at
the same time, employees shall be assigned alternate 4/10
or 9/80 assignments for six month periods. Assignments
shall be based on seniority.
C. 	Notification to union to establish OR MODIFY A
POSITIONS' [sic] WORK
HOURS/WORKWEEK/WEEKEND SCHEDULE.
1 . 	MANAGERS WHO DESIRE TO CHANGE A
POSITIONS' [sic] WORK HOURS OR WORKWEEK
WITH THE EXCEPTION OF THE 10/4 OR 9/80 WORK
SCHEDULE (B.2) SHALL NOTIFY THE EXECUTIVE
DEAN OF HUMAN RESOURCES BY COMPLETING A
REQUEST FOR CHANGE IN A CLASSIFIED
EMPLOYEE'S WORK SCHEDULE, (APPENDIX G).
THIS NOTIFICATION IS ALSO REQUIRED IF AN
EMPLOYEE REQUESTS THE CHANGE. THE
AFFECTED EMPLOYEE(S) NEEDS TO BE NOTIFIED
IN ACCORDANCE WITH A.1. OF THIS ARTICLE.
"ARTICLE XIL SECTION C.1 WILL REMAIN IN
EFFECT PER ARTICLE XXXI, SECTION C [concerning
contract administration]." [Emphasis in the original.]
In the event the District desires to assign variable hours
and/or workweek to a position/employee who was not
previously so assigned, the District shall notify CSEA of
their intent, and upon request from CSEA, the District
shall meet and negotiate concerning the proposed
assignments.
19
2

The District argues that its imposition of the 4/10 schedule was specifically authorized by
Article XII, Section A.1.
Essentially, the District argues, first, that in the face of the 2000-2001 energy crisis it
made a reasonable good faith determination of a "compelling business necessity" within the
meaning of Article XII, Section A.1. The District further argues that, having made that
determination, it was authorized by Article XII, Section A. 1, to impose a 4/10 schedule on
employees generally, without negotiating.
I would agree that the District's determination of a "compelling business necessity,"
within the meaning of Article XII, Section A.1, was reasonable and in good faith. 3 I disagree,
however, that Article XII, Section A.1, authorized the District to act as it did.
Article XII, Section A.I, deals with two distinct subjects: workday and shift. Workday
normally refers to "the time spent by employees at their place of employment." (Roberts'
Dictionary oflndustrial Relations (3d ed.1986) p. 788.) A basic workday is usually eight
hours. 	(Id. at p. 67.) Shift, in contrast, may be defined as follows:
A regularly scheduled period of work during the 24-hour day for
a plant. The shift has a fixed beginning and ending each day.
(Id. at p. 64.) Thus the workday is how long an employee works in a day (e.g., eight hours)
and the shift is when the employee works (e.g., the day shift). Article XII, Section G, uses
shift in this sense in providing shift differentials for employees regularly working evening
swing shifts or after-midnight graveyard shifts.
3 The District does not argue, and I would not find, that the energy crisis was an
emergency within the meaning of Article XXVI (Management Rights and Responsibilities),
Section A.5, which defines an emergency as "a situation or occurrence of a serious nature
developing suddenly, unexpectedly, resulting in a relatively temporary change in
circumstances and demanding immediate action." The evidence at hearing did not show that
the California energy crisis of 2000-2001 developed suddenly or unexpectedly or that it
demanded immediate action by the District.
20
The District argues that its imposition of the 4/10 schedule was specifically authorized by
Article XII, Section A.1.
Essentially, the District argues, first, that in the face of the 2000-2001 energy crisis it
made a reasonable good faith determination of a "compelling business necessity" within the
meaning of Article XII, Section A.1. The District further argues that, having made that
determination, it was authorized by Article XII, Section A.1, to impose a 4/10 schedule on
employees generally, without negotiating.
I would agree that the District's determination of a "compelling business necessity,"
within the meaning of Article XII, Section A.1, was reasonable and in good faith. I disagree,
however, that Article XII, Section A.1, authorized the District to act as it did.
Article XII, Section A.1, deals with two distinct subjects: workday and shift. Workday
normally refers to "the time spent by employees at their place of employment." (Roberts'
Dictionary of Industrial Relations (3d ed. 1986) p. 788.) A basic workday is usually eight
hours. (Id. at p. 67.) Shift, in contrast, may be defined as follows:
A regularly scheduled period of work during the 24-hour day for
a plant. The shift has a fixed beginning and ending each day.
(Id. at p. 64.) Thus the workday is how long an employee works in a day (e.g., eight hours)
and the shift is when the employee works (e.g., the day shift). Article XII, Section G, uses
shift in this sense in providing shift differentials for employees regularly working evening
swing shifts or after-midnight graveyard shifts.
" The District does not argue, and I would not find, that the energy crisis was an
emergency within the meaning of Article XXVI (Management Rights and Responsibilities),
Section A.5, which defines an emergency as "a situation or occurrence of a serious nature
developing suddenly, unexpectedly, resulting in a relatively temporary change in
circumstances and demanding immediate action." The evidence at hearing did not show that
the California energy crisis of 2000-2001 developed suddenly or unexpectedly or that it
demanded immediate action by the District.
20

The first sentence of Article XII, Section A.1, deals with workday, establishing a
workday for full-time employees of eight hours, subject to "the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80 workweek [emphasis added]." That
exception is governed by Article XII, Section B.2, which emphasizes the voluntary nature of
the exception by describing it as something the District may institute only "with the
concurrence of the affected unit employee(s)." Article XII, Section C.l, makes it clear that
Article XII, Section B.2, is controlling in this regard: it establishes a process for modifying
work hours "with the exception of the 10/4 or 9/80 work schedule (B.2)."
The remaining sentences of Article XII, Section A.1, deal with shift. The second
sentence requires "a fixed, regular shift" for each employee ( e.g., the day shift). The third
sentence then authorizes the District to change an employee's "fixed shift" to another shift
(e.g., the swing shift) for "compelling business necessity," with notice and consultation but
without negotiation. The third sentence does not, however, authorize the District to change the
eight-hour "workday" established by the first sentence.
It would be rather extraordinary if the CSEA agreement did allow the District to require
employees generally to extend their workdays from eight hours to ten hours, without
negotiating (and without paying overtime compensation). Under Article XII, Section A.2, the
District is required to negotiate even when an individual employee desires a temporary
reduction of hours. Under Article XII, Section C.2, the District is also required to negotiate
(upon request) the assignment of "variable hours and/or worhveek" to an individual employee
or position. It would be odd for the CSEA agreement to require negotiations for these
relatively minor changes and not to require negotiations for a major change to a ten-hour
workday for employees generally.
21
The first sentence of Article XII, Section A.1, deals with workday, establishing a
workday for full-time employees of eight hours, subject to "the exception contained in this
Agreement pertaining to the voluntary four-day and 9/80 workweek [emphasis added]." That
exception is governed by Article XII, Section B.2, which emphasizes the voluntary nature of
the exception by describing it as something the District may institute only "with the
concurrence of the affected unit employee(s)." Article XII, Section C.1, makes it clear that
Article XII, Section B.2, is controlling in this regard: it establishes a process for modifying
work hours "with the exception of the 10/4 or 9/80 work schedule (B.2)."
The remaining sentences of Article XII, Section A.1, deal with shift. The second
sentence requires "a fixed, regular shift" for each employee (e.g., the day shift). The third
sentence then authorizes the District to change an employee's "fixed shift" to another shift
(e.g., the swing shift) for "compelling business necessity," with notice and consultation but
without negotiation. The third sentence does not, however, authorize the District to change the
eight-hour "workday" established by the first sentence.
It would be rather extraordinary if the CSEA agreement did allow the District to require
employees generally to extend their workdays from eight hours to ten hours, without
negotiating (and without paying overtime compensation). Under Article XII, Section A.2, the
District is required to negotiate even when an individual employee desires a temporary
reduction of hours. Under Article XII, Section C.2, the District is also required to negotiate
(upon request) the assignment of "variable hours and/or workweek" to an individual employee
or position. It would be odd for the CSEA agreement to require negotiations for these
relatively minor changes and not to require negotiations for a major change to a ten-hour
workday for employees generally.
21

It appears that Article XII, Section A.1, was designed to give the District, when faced
with compelling business necessity, some flexibility in the scheduling
of
shifts for specific
employees, not employees generally. Thus the District is required to "ask for volunteers first"
and then to assign "the least senior employee(s)." In the present case, the District neither
asked for volunteers nor considered seniority; instead, it imposed the change on employees
generally. This appears to be an unjustified stretch
of
the District's limited authority under
Article XII, Section A.1.
In its post-hearing brief, the District argues that even
if
it violated the CSEA agreement
it did not commit an unfair practice, because the violation was not "on-going" but was limited
to June and July 2001. The District relies on Grant Joint Union High School District, supra,
PERB Decision No. 196, in which PERB stated that a breach
of
contract "must amount to a
change
of
policy" to be an unfair practice. PERB further stated, however, that a change
of
policy "has, by definition, a generalized effect or continuing impact" on employees. (Ibid.;
emphasis added.) In the present case, the District's contract violation did have a generalized
effect on employees. Furthermore, it is possible that a "compelling business necessity" may
arise again, in which case the District's claim
of
authority under Article XII, Section A.
l,
may
have a continuing impact on employees.
I conclude that the District did unilaterally and unlawfully change a work schedule
policy, in violation
of
EERA section 3543.S(c). Because this conduct also interfered with the
rights
of
employees to be represented, and denied LBCCE its right to represent them, it also
violated
~~-L~,
~
section 3543.S(a) and (b).
REMEDY
EERA section 3541.S(c) gives PERB:
22
It appears that Article XII, Section A.1, was designed to give the District, when faced
with compelling business necessity, some flexibility in the scheduling of shifts for specific
employees, not employees generally. Thus the District is required to "ask for volunteers first"
and then to assign "the least senior employee(s)." In the present case, the District neither
asked for volunteers nor considered seniority; instead, it imposed the change on employees
generally. This appears to be an unjustified stretch of the District's limited authority under
Article XII, Section A.1.
In its post-hearing brief, the District argues that even if it violated the CSEA agreement
it did not commit an unfair practice, because the violation was not "on-going" but was limited
to June and July 2001. The District relies on Grant Joint Union High School District, supra,
PERB Decision No. 196, in which PERB stated that a breach of contract "must amount to a
change of policy" to be an unfair practice. PERB further stated, however, that a change of
policy "has, by definition, a generalized effect or continuing impact" on employees. (Ibid.;
emphasis added.) In the present case, the District's contract violation did have a generalized
effect on employees. Furthermore, it is possible that a "compelling business necessity" may
arise again, in which case the District's claim of authority under Article XII, Section A.1, may
have a continuing impact on employees.
I conclude that the District did unilaterally and unlawfully change a work schedule
policy, in violation of EERA section 3543.5(c). Because this conduct also interfered with the
rights of employees to be represented, and denied LBCCE its right to represent them, it also
violated EERA section 3543.5(a) and (b).
REMEDY
EERA section 3541.5(c) gives PERB:
22

...
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter [EERA].
In the present case, the District has been found to have violated EERA section 3543.5(a), (b)
and (c) by unilaterally changing a work schedule policy. It is therefore appropriate to direct
the District to cease and desist from such conduct.
In California State Employees' Assn. v. Public Employment Relations Bd. (1996)
51
Cal.App.4 th 923, 946 [59 Ca1Rptr.2d 488], the court stated in part:
Restoration
of
the status quo is the normal remedy for a
unilateral change in working conditions or terms
of
employment
without permitting bargaining [unit] members' exclusive
representative an opportunity to meet and confer over the
decision and its effects. (See, e.g. Oakland Unified School Dist.
v.
Public Employment Relations Bd. (1981) 120 Cal.App.3d
1007, 1014-1015 [ 17 5 Cal.Rptr. 105].) This is usually
accomplished by requiring the employer to rescind the unilateral
change and to make employees "whole" from losses suffered as a
result
of
the unlawful unilateral change.
The schedule change has already been rescinded, but it is still appropriate to direct the District
to make employees whole.
In its post-hearing briefs, LBCCE argues in part that the District should be directed to
pay employees overtime compensation. In the circumstances
of
this case, however, I find this
remedy inappropriate. The CSEA agreement, at Article XII, Section E.2, requires overtime
compensation only after "ten (10) hours per day in the case
of
four-day-workweek employees."
Furthermore, at Article XII, Section B.2, the agreement allows the District to institute a 4/10
workweek "with the concurrence
of
the affected unit employee(s)." When surveyed by
LBCCE, the great majority of employees indicated, "I can and will work the 4/10 schedule."
That looks like concurrence by those employees. Also, it appears that employees who could
23
. . . the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter [EERA].
In the present case, the District has been found to have violated EERA section 3543.5(a), (b)
and (c) by unilaterally changing a work schedule policy. It is therefore appropriate to direct
the District to cease and desist from such conduct.
In California State Employees' Assn. V. Public Employment Relations Bd. (1996) 51
Cal.App.4 923, 946 [59 CalRptr.2d 488], the court stated in part:
Restoration of the status quo is the normal remedy for a
unilateral change in working conditions or terms of employment
without permitting bargaining [unit] members' exclusive
representative an opportunity to meet and confer over the
decision and its effects. (See, e.g. Oakland Unified School Dist.
v. Public Employment Relations Bd. (1981) 120 Cal.App.3d
1007, 1014-1015 [175 Cal.Rptr. 105].) This is usually
accomplished by requiring the employer to rescind the unilateral
change and to make employees "whole" from losses suffered as a
result of the unlawful unilateral change.
The schedule change has already been rescinded, but it is still appropriate to direct the District
to make employees whole.
In its post-hearing briefs, LBCCE argues in part that the District should be directed to
pay employees overtime compensation. In the circumstances of this case, however, I find this
remedy inappropriate. The CSEA agreement, at Article XII, Section E.2, requires overtime
compensation only after "ten (10) hours per day in the case of four-day-workweek employees."
Furthermore, at Article XII, Section B.2, the agreement allows the District to institute a 4/10
workweek "with the concurrence of the affected unit employee(s)." When surveyed by
LBCCE, the great majority of employees indicated, "I can and will work the 4/10 schedule."
That looks like concurrence by those employees. Also, it appears that employees who could
23

not or would not work ten-hour days were allowed to take two hours
of
vacation,
compensatory time
off
or unpaid leave after their eight-hour days. 	On this record, I cannot
find that employees who actually worked the 4/10 schedule did so without their "concurrence."
LBCCE also argues that the District should be directed to reinstate any vacation credits
or compensatory time
off
that employees used to avoid working full ten-hour days. This is part
of
the remedy LBCCE also requested in its Level 1 grievance:
All classified employees who would not normally have taken
vacation or leave without pay between June 4 through July 27,
2001, shall be credited back vacation time and/or back pay
if
leave without pay was taken.
I find this remedy appropriate. Employees who used their vacation credits or compensatory
time
off
to reduce their workdays presumably were working the 4/10 schedule without their
"concurrence." They should be made whole by having those credits restored. Furthermore,
employees who took leave without pay, and therefore had their pay docked, should be made
whole with back pay, plus interest at the rate
of
seven percent per annum.
It is also appropriate to direct the District to post a notice incorporating the terms
of
the
order in this case. Posting
of
such a notice, signed by an authorized agent
of
the District, will
provide employees with notice the District has acted in an unlawful manner, is being required
to cease and desist from this activity and take affirmative remedial actions, and will comply
with the order. It effectuates the purposes
of
EERA that employees be informed both
of
the
resolution
of
this controversy and
of
the District's readiness to comply with the ordered
remedy. (Placerville Union School District (1978) PERB Decision No. 69.)
24
not or would not work ten-hour days were allowed to take two hours of vacation,
compensatory time off or unpaid leave after their eight-hour days. On this record, I cannot
find that employees who actually worked the 4/10 schedule did so without their "concurrence."
LBCCE also argues that the District should be directed to reinstate any vacation credits
or compensatory time off that employees used to avoid working full ten-hour days. This is part
of the remedy LBCCE also requested in its Level 1 grievance:
All classified employees who would not normally have taken
vacation or leave without pay between June 4 through July 27,
2001, shall be credited back vacation time and/or back pay if
leave without pay was taken.
I find this remedy appropriate. Employees who used their vacation credits or compensatory
time off to reduce their workdays presumably were working the 4/10 schedule without their
"concurrence." They should be made whole by having those credits restored. Furthermore,
employees who took leave without pay, and therefore had their pay docked, should be made
whole with back pay, plus interest at the rate of seven percent per annum.
It is also appropriate to direct the District to post a notice incorporating the terms of the
order in this case. Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice the District has acted in an unlawful manner, is being required
to cease and desist from this activity and take affirmative remedial actions, and will comply
with the order. It effectuates the purposes of EERA that employees be informed both of the
resolution of this controversy and of the District's readiness to comply with the ordered
remedy. (Placerville Union School District (1978) PERB Decision No. 69.)
24

PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that the Long Beach Community College District (District)
violated the Educational Employment Relations Act (Act), Government Code section
3543.5(a), (b) and (c), by changing a work schedule policy without negotiating with the Long
Beach Classified Employees Association (LBCCE).
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Changing work schedule policy without negotiating with LBCCE.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Restore vacation credits and compensatory time off to those employees
who used them to reduce the ten-hour workdays imposed on them in June and July 2001.
2. 	Pay back pay, with interest at seven percent per annum, to those
employees who took leave without pay to reduce the ten-hour workdays imposed on them in
June and July 2001, and therefore had their pay docked ..
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to classified employees customarily are posted, copies
of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent of the District, indicating that it will comply with the terms of this Order. 	Such posting
shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
25
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that the Long Beach Community College District (District)
violated the Educational Employment Relations Act (Act), Government Code section
3543.5(a), (b) and (c), by changing a work schedule policy without negotiating with the Long
Beach Classified Employees Association (LBCCE).
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1 . 	Changing work schedule policy without negotiating with LBCCE.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1 . 	Restore vacation credits and compensatory time off to those employees
who used them to reduce the ten-hour workdays imposed on them in June and July 2001.
2. 	Pay back pay, with interest at seven percent per annum, to those
employees who took leave without pay to reduce the ten-hour workdays imposed on them in
June and July 2001, and therefore had their pay docked..
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to classified employees customarily are posted, copies
of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent of the District, indicating that it will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
25

4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed
by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on LBCCE.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
,A~	,A~
document is considered "filed" when actually received before the close
of
business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number
of
copies
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
26
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on LBCCE.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
26

Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
27
Thomas
J.
Allen
Administrative Law Judge
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Thomas J. Allen
Administrative Law Judge
27