County of Riverside * * * OVERRULED IN PART by County of San Diego (2020) PERB Decision No. 2721-M (PERB 2176M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COMMITTEE OF INTERNS &
RESIDENTS/SERVICE EMPLOYEES
INTERNATIONAL UNION,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-469-M
PERB Decision No. 2176-M
March 29, 2011
Appearances: 	Schwartz, Steinsapir, Dohrmann & Sommers by Tamra M. Boyd, Attorney, for
Committee
of
Interns & Residents/Service Employees International Union; The Zappia Law
Firm by Edward P. Zappia and Brett M. Ehman, Attorneys, for County
of
Riverside.
Before Dowdin Calvillo, Chair; McKeag and Miner, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the County
of
Riverside (County), and
on
cross-exceptions filed by the Committee
of
Interns & Residents/Service Employees
International Union (CIR/SEIU), to the proposed decision
of
an administrative law judge
(ALJ). The complaint issued by PERB's Office
of
the General Counsel alleged that the
County violated the Meyers-Milias-Brown Act (MMBA) 1 when it denied CIR/SEIU's petition
to register as an employee organization under the County's Employee Relations Resolution
(ERR) and be recognized as the exclusive representative
of
resident physicians employed at the
Riverside County Regional Medical Center. The ALJ ruled that the County unreasonably
refused to register CIR/SEIU as an employee organization.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
* * * OVERRULED IN PART by County of San Diego (2020) PERB Decision No. 2721-M * * *

The Board has reviewed the proposed decision and the record in light
of
the County's
exceptions and CIR/SEIU's cross-exceptions, the responses thereto, and the relevant law.2
Based on this review, the Board reverses the proposed decision for the reasons discussed
below.
FACTUAL BACKGROUND
The parties, through their respective counsel
of
record, stipulated that the following
facts are true and correct:3
1.	
The Charging Party, the Committee
of
Interns and Residents/Service Employees
International Union (CIR/SEIU), filed the unfair practice charge that is the subject
of
this
hearing against Respondent County
of
Riverside (County) on July 14, 2008. On
September 30, 2008, PERB issued a complaint in response to CIR/SEIU's unfair practice
charge.
2.	
CIR/SEIU is an employee organization under Government Code section 3501(a)
and Riverside County Employee Relations Resolution, Section 3(h).
3.	
The term "resident physician," as used herein, refers to an individual who has
graduated from medical school and who is employed through a residency program at a hospital
or other medical facility, in order to obtain the experience and training required to become a
2 The County requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves
of
that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, the County's request for oral argument is denied.
3 Attached to the County's post-hearing brief were documents from a superior court
action between the parties. Because it was not a joint amendment to the stipulated facts, the
ALJ did not consider the documents in his proposed decision. Accordingly, the Board will not
consider the documents on appeal.

fully-licensed physician. Residency programs typically range from three to seven years,
depending on the particular field
of
medicine.
4.	
The County is a subdivision
of
the State
of
California, established pursuant to
the Constitution
of
the State
of
California and subject to suit in its name. The County is
governed by the Meyers-Milias-Brown Act (MMBA), Government Code section 3500
et
seq.,
which regulates labor relations between public entities such as the County, the employees
of
such entities, and the labor organizations that seek to represent such employees. Pursuant to its
rulemaking authority under Government Code section 3507(a), the County's Board
of
Supervisors in 1999 passed the Riverside County Employee Relations Resolution, Resolution
No. 99-379 (Resolution).
5.	
The County employs resident physicians at the Riverside County Regional
Medical Center. The County's resident physicians are not currently covered by any existing
memorandum
of
understanding (MOU) and, to the parties' knowledge, have never been
covered by an MOU. To the parties' knowledge, no employee organization other than
CIR/SEIU has ever sought recognition from the County as the bargaining representative
of
the
County's resident physicians.
6.	
On December 17, 2007, CIR/SEIU presented the County with a letter
requesting, pursuant to the County's Employee Relations Resolution, (1) registration with the
County as an employee organization4 and (2) majority recognition as the authorized bargaining
representative
of
the County's resident physicians. Attached as exhibits to CIR/SEIU's
December 17, 2007 letter were the following documents:
4 ERR Section 3(q) defines "registered employee organization" as "an employee
organization which has been acknowledged by the County as an employee organization that
represents employees of the County." Under ERR Section 9, only a registered employee
organization may file a petition to become the majority or exclusive representative of a County
bargaining unit.

a.	
A petition signed by
35
resident physicians then employed by the County
which stated, in part: "We the undersigned interns, residents and fellows
employed by (Riverside County Regional Medical Center) designate the
Committee
of
Interns and Residents/SEID, as our exclusive bargaining
representative for the purposes
of
negotiating wages, benefits and other
terms and conditions
of
employment."
b.	
A copy
of
CIR/SEIU's Constitution and Bylaws.
7.	
On December 17, 2007, the County employed approximately 57
resident physicians.
8.	
By letter dated December 19, 2007, the County responded to CIR/SEIU's letter,
stating that it would not register CIR/SEIU as an employee organization.
9.	
On January 10, 2008, CIR/SEIU's counsel wrote the County to request
clarification
of
the County's position.
10. 	By letter dated January 14, 2008, the County responded to CIR/SEIU's counsel
by reiterating its refusal to register CIR/SEIU as an employee organization.
11. 	Thereafter, CIR/SEIU requested a meeting with the County to discuss
CIR/SEIU' s request for registration and its desire to represent the County's resident
physicians. This meeting occurred on February 5, 2008 and was attended by Arny Hall and
Jazmin Ochoa
of
CIR/SEIU, one
of
the resident physicians employed by the County,
CIR/SEIU's counsel, Torn Prescott, Human Resources Division Manager for the County's
Employee Relations Division, and another employee
of
the County. At this meeting, Mr.
Prescott indicated that CIR/SEIU was not eligible for registration as an employee organization
under the Resolution because CIR/SEIU had not shown that it had members in an existing
4

bargaining unit. In addition, the parties stipulate that the following persons,
if
called as
witnesses, would testify as follows about this meeting:
a.	
Tom Prescott would testify that he advised CIR/SEIU's representatives
that CIR/SEIU could satisfy the County's registration requirements by
obtaining authorization cards from at least two County employees in one
or more
of
the bargaining units already recognized by the County.
b.	
Amy Hall, West Coast Director
of
CIR/SEIU, would testify that Mr.
Prescott indicated that CIR/SEIU could satisfy the County's registration
requirements by obtaining authorization cards from at least two County
employees represented by another employee organization already
registered with the County, such as SEIU Local 721, which represents
other County employees employed at the Riverside County Regional
Medical Center.
12. 	On May 30, 2008, CIR/SEIU filed a petition for writ
of
mandate against the
County in Riverside County Superior Court, challenging the County's refusal to register
CIR/SEIU as an employee organization pursuant to the Resolution and the MMBA. 	On
September 12, 2008, the Court denied CIR/SEIU's petition for writ
of
mandate on the ground
that PERB has exclusive jurisdiction over the dispute.
DISCUSSION
The complaint alleged that the County denied CIR/SEIU' s request for registration on
three separate occasions: the December 19, 2007 letter, the January 14, 2008 letter, and during
the February 5, 2008 meeting. 	In its post-hearing brief, the County argued that the charge was
untimely because it was filed on July 14, 2008, more than six months after the County's first
denial ofregistration. The ALJ ruled that the charge was timely because the County's
5

continued refusal to register CIR/SEIU within the statute of limitations period constituted a
continuing violation. For the following reasons, we disagree and hold that the charge must be
dismissed as untimely.
PERB is prohibited 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.
(Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Ed.
(2005) 35 Cal.4th 1072.) 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.)5 A charging party bears the burden of
demonstrating that the charge is timely filed. 	(Long Beach Community College District (2009)
PERB Decision No. 2002.)
1. 	Continuing Violation
Under the continuing violation doctrine, a violation within the statute of limitations
period may revive an earlier violation of the same type that occurred outside of the limitations
period. (Compton Community College District (1991) PERB Decision No. 915.) For the
doctrine to apply, the violation within the limitations period must constitute an independent
unfair practice without reference to the prior violation. (El Dorado Union High School District
(1984) PERB Decision No. 382.)
A continuing violation is not found when the respondent's action during the limitations
period merely confirms or reiterates the position it took and communicated to the charging
party outside of the limitations period. ( UCLA Labor Relations Division (1989) PERB
Decision No. 735-H.) For example, in Fresno County Office of Education (1993) PERB
5 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
6

Decision No. 978, the Board found no continuing violation when the only act by the employer
within the limitations period was its continued insistence that it would only recognize one site
representative, a position it had communicated to the exclusive representative more than six
months before the charge was filed. 	Similarly, in Compton Unified School District (2009)
PERB Decision No. 2015, the Board held that the school district's maintenance of its position
that the charging parties were exempt employees did not constitute a continuing violation when
the employees knew at least four years before they filed the charge that the district deemed
them exempt employees.
In a case similar to this one, UCLA Labor Relations Division, supra, PERB Decision
No. 735-H, an exclusive representative filed a grievance challenging a unit member's
termination. During the grievance process, the employee retained private counsel, who then
filed an identical grievance on the employee's behalf. The university returned the second
grievance to the employee's counsel on November 3, 1987. The university accepted the
exclusive representative's withdrawal of the original grievance on November 30, 1987. On
December 21, 1987, the employee's counsel sent a letter to the university objecting to its
actions on the grievances; the university defended its actions by letter dated January 8, 1988.
The Board held that the charge, filed on July 8, 1988, was untimely because the employee
knew in November, more than six months before the charge was filed, that the university had
refused to process his grievances. In so holding, the Board found that the university's
January 8 letter did not constitute an independent unfair practice because it merely reiterated
the position the university took in November 1987.
Here, the County informed CIR/SEIU by letter dated December 19, 2007 that it would
not register CIR/SEIU as an employee organization because, in the County's view, CIR/SEIU
7

had not satisfied the requirements for registration in ERR Section 9. The stipulated facts state,
in relevant part:
9.	
On January 10, 2008, CIR/SEIU's counsel wrote the
County to request clarification
of
the County's position.
10.	
By letter dated January 14, 2008, the County responded to
CIR/SEIU's counsel by reiterating its refusal to register
CIR/SEIU as an employee organization.
On February 5, 2008, CIR/SEIU and the County met to discuss the County's refusal to register
CIR/SEIU. During the meeting, the County restated its position that CIR/SEIU had not
complied with the requirements
of
ERR Section 9.
The record establishes that between December 19, 2007 and February 5, 2008, the
County consistently maintained that CIR/SEIU' s request for registration failed to comply with
ERR Section
9.
	Therefore, the County's January 14, 2008 letter and statements by its
representative during the February 5, 2008 meeting were merely reiterations
of
the position the
County took on December 19, 2007. Consequently, we find no continuing violation in this
case. 6
CIR/SEIU nonetheless argues that the December 19, 2007 letter "was far too vague to
put CIR/SEIU on notice that an unfair practice had occurred" because it "provided only a
cursory explanation
of
its rationale for refusing to register CIR/SEID." In support
of
this
argument, CIR/SEID cites The Regents
of
the University a/California (1983) PERB Decision
No. 359-H (vacated on other grounds), in which the Board held that rumors and tentative
discussions about a change in the university's policy for reemploying lecturers were
This finding is consistent with PERB case law holding that, once the limitations
period begins to run, a charging party "cannot cause it to begin anew by making the same
request over and over again" because "such a result would eviscerate the purpose
of the
statute of limitations." ( California State Employees Association, Local 1000, SEIU, AFL-CIO,
CLC (Sutton) (2003) PERB Decision No. 1553-S.)
8

insufficient to give the exclusive representative notice that the university had actually changed
the policy. Here, even though the December 19, 2007 letter did not explain the County's
rationale for denying CIR/SEIU's registration request in great detail, it nonetheless clearly
stated that the request was denied because it failed to comply with ERR Section
9.
Consequently, CIR/SEIU knew
of
the conduct underlying the charge when it received the
December 19, 2007 letter, even
if
it did not learn the County's exact reasons for the denial
until later. (See Empire Union School District (2004) PERB Decision No. 1650 [the charging
party's belated discovery
of
the legal significance
of
the underlying conduct does not excuse
an otherwise untimely filing].)
CIR/SEIU also contends that the County's reiterations
of
its position constitute a
continuing violation under National Labor Relations Board (NLRB) case law. The NLRB
decisions cited by CIR/SEIU do not support its argument, however, because all involve an
independent violation by the employer within the statute
of
limitations period. For example, in
Goodyear Tire & Rubber
Co.
(1972) 195 NLRB 767, the NLRB held that employees at the
employer's newly opened warehouse were members
of
the existing bargaining unit and
therefore the employer's refusal to bargain with the certified union as the representative
of
the
warehouse employees, both before and during the limitations period, was an unfair labor
practice. In HLH Products (1967) 164 NLRB 325, also cited by CIR/SEIU, the NLRB refused
to rely on the continuing nature
of
the employer's refusal to recognize and bargain with the
union, as had the ALJ, because it found the employer had instituted a discriminatory recall
policy during the limitations period that constituted an independent refusal to bargain. 	Thus,
as the Board recognized in San Dieguito Union High School District (1982) PERB Decision
No. 194, an employer's refusal to bargain may constitute a continuing violation even
if
the
refusals before and during the limitations period were based on the same rationale when, as in
9

the cases cited by CIR/SEIU as well as under long-established PERB case law, the employer's
refusal during the limitations period constitutes a violation without reference to the refusal
outside
of
the limitations period. As found above, the County's reiterations
of
its position on
January 14 and February 5, 2008 did not constitute an independent unfair practice and
therefore the NLRB decisions cited by CIR/SEIU are inapposite.
2.
	Equitable Tolling
CIR/SEIU also contends in its response to the County's exceptions that the statute
of
limitations was equitably tolled while it pursued a remedy in superior court. According to the
stipulated facts:
On May 30, 2008, CIR/SEIU filed a petition for writ
of
mandate
against the County in Riverside County Superior Court,
challenging the County's refusal to register CIR/SEIU as an
employee organization pursuant to the Resolution and the
MMBA. On September 12, 2008, the Court denied CIR/SEIU's
petition for writ
of
mandate on the ground that PERB has
exclusive jurisdiction over the dispute.
CIR/SEIU argues on appeal that the statute
of
limitations was tolled from May 30 through
September 12, 2008, thereby making its charge timely.
The doctrine
of
equitable tolling applies in cases arising under the MMBA. (Solano
County Fair Association (2009) PERB Decision No. 2035-M.) Under this doctrine,
"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."
(Long Beach Community College District, supra, PERB Decision No. 2002.)

The doctrine of equitable tolling does not apply any time a charging party pursues an
alternative remedy; rather, the doctrine applies only when the charging party has used mutually
negotiated dispute resolution procedures contained in a written agreement. (See City of
Alhambra (2009) PERB Decision No. 2036-M [no equitable tolling for Skell/ due process
proceedings]; Trustees of the Cal(fornia State University (San Jose) (2009) PERB Decision
No. 2032-H [no equitable tolling for State Personnel Board proceedings]; State of California
(Department of Personnel Administration) (2009) PERB Decision No. 2013-S [no equitable
tolling for impasse mediation required by the Ralph C. Dills Act].) The superior court action
certainly was not a mutually negotiated procedure for resolving disputes between CIR/SEIU
and the County. Thus, equitable tolling does not apply in this case.
In sum, CIR/SEIU first learned of the conduct underlying this unfair practice charge on
December 19, 2007, when the County denied CIR/SEIU's request for registration as an
employee organization under the County's ERR. CIR/SEIU filed this charge on July 14, 2008,
almost seven months after the denial. Because neither the continuing violation doctrine nor
equitable tolling apply in this case, CIR/SEIU' s charge was untimely and must be dismissed.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-469-M are
hereby DISMISSED.
Members McKeag and Miner joined in this Decision.
7 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
11