Lucia Mar Unified School District (PERB 0579E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WAYNE 	KAY HILL,
Charging 	Party,
v.
LUCIA MAR UNIFIED 	SCHOOL DISTRICT,
Respondent.
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Case 	No. 	LA-CE-2314
PERB 	Decision No. 	579
June 	27, 	1986
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Appearance; 	Wayne Kay Hill, 	on his own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment Relations 	Board
(PERB) 	on appeal 	by Wayne 	Kay Hill 	of 	a 	regional 	attorney's
dismissal, 	attached hereto, 	of Hill's charge alleging that the
Lucia 	Mar 	Unified 	School 	District 	violated 	section 	3543.5(a) 	of
the 	Educational 	Employment Relations Act 	(EERA) 	(Gov. 	Code 	sec.
3540 	et 	seq.). 	The 	regional 	attorney dismissed 	the charge on
the 	ground 	that 	it had 	not been timely 	filed.
On appeal, 	Hill 	acknowledges 	the untimely 	filing, 	but
asserts 	that he was 	"led 	to believe" 	that his phone 	contact with
the 	regional 	attorney, 	which 	arguably 	fell 	within 	the 	six-month
limitation 	period 	provided 	by 	statute,1' 	would 	constitute 	a
timely filing. 	The appeal, 	however, 	lacks specificity in that
1EERA 	section 3541.5(a).
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it 	fails 	to describe how Hill 	was 	purportedly misled by 	the
regional 	attorney. 	We 	find Hill's 	general 	and unsupported
assertion 	that he was 	misled 	to be 	insufficient 	to 	indicate 	any
irregularity 	in the processing of his 	charge. 	We, 	therefore,
adopt 	the 	regional 	attorney's 	finding 	that 	the 	charge 	was
untimely 	filed.
ORDER
The 	unfair practice charge 	in Case No. 	LA-CE-2314 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD.
2Hill 	also claims 	that he was 	not aware 	that, 	in order 	to
be 	timely 	filed, 	a 	charge must be 	received 	in the 	appropriate
regional 	office prior 	to 	the 	expiration of 	the 	six-month
limitations 	period 	(or 	sent by U.S. 	certified mail 	and
postmarked not 	later 	than the 	last day 	for 	filing). 	PERB
Regulations 	are 	codified 	at 	California Administrative 	Code,
title 	8, 	section 31001 	et 	seq. 	Specific 	inquiries 	concerning
procedures 	for 	filing 	unfair practice 	charges 	may be 	directed
to 	the 	regional 	offices. 	There 	is 	no 	indication that 	such
inquiries 	were 	made 	in this 	case or 	that 	Hill 	received
erroneous 	information 	concerning 	filing 	requirements.
22

STATE CF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(2)3) 736-3127
February 28, 	1986
Wayne Kay 	Hill
Re: 	LA-CE-2314, Wayne Kay Hill v. Lucia Mar
Unified 	School District
DISMISSAL OF 	UNFAIR PRACTICE CHARGE
Dear Mr. Hill:
The above-referenced charge 	filed 	on January 	21, 	1986 	alleges
that from September 	28, 	1984 	through June 1985 	the Lucia Mar
Unified 	School District 	unlawfully 	withheld 	money 	from 	the
paycheck 	of Wayne 	Kay Hill 	for 	agency 	fees paid 	to his
exclusive representative, 	the California School Employees
Association 	(CSEA) . 	This conduct 	is alleged to violate
Government Code section 3543.5 (a) 	of 	the Educational Employment
Relations 	Act 	(EERA).
Roger 	Smith 	indicated 	to you 	in his 	attached 	letter 	dated
February 19, 	1986 	that certain allegations contained 	in the
charge did 	not 	state a prima 	facie 	case. 	You were advised 	that
if 	there were 	any 	factual 	inaccuracies or additional 	facts
which would correct the deficiencies 	explained 	in 	that 	letter,
you 	should amend 	the charge 	accordingly. 	You were 	further
advised 	that 	unless you amended 	these 	allegations 	to 	state 	a
prima 	facie case, 	or withdrew them prior 	to February 26, 	1986,
they would 	be 	dismissed.
We 	have not 	received either 	a 	request 	for 	withdrawal or 	an
amended 	charge 	and 	are 	therefore dismissing 	those 	allegations
which 	fail 	to state 	a prima 	facie 	based on 	the 	facts 	and
reasons contained 	in Mr. 	Smith's February 19, 	1986 	letter.
Pursuant 	to Public Employment 	Relations Board 	regulation
section 32635 	(California Administrative Code, 	title 8, 	part
III), 	you may appeal the refusal to issue a complaint
(dismissal) 	to the Board 	itself.
··======

February 28, 	1986
DISMISSAL OF 	UPC
LA-CE-2314
Page 	2
Right to Appeal
You may obtain a 	review of 	this dismissal of 	the charge by
filing 	an 	appeal 	to the Board 	itself within twenty 	(20)
calendar 	days 	after 	service of this dismissal 	(section
32635(a). 	To be timely filed, the original and five 	(5) 	copies
of 	such 	appeal must 	be 	actually 	received 	by 	the Board 	itself
before the close of business 	(5:00 p.m.) 	on March 20, 	1986, 	or
sent 	by telegraph or certified United States mail postmarked
not later than March 20, 	1986 	(section 32135). 	The Board's
address is:
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 	95814
If you file 	a timely appeal of the 	refusal, 	any other party may
file with the Board an original and five 	(5) 	copies of a
statement 	in opposition within twenty 	(20) 	calendar days
following 	the date of 	service of the appeal 	(section 32635(b)).
Service
All documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all parties to the proceeding, 	and a 	"proof of
service" 	must accompany each copy of a document served upon a
party or 	filed with the Board 	itself. 	(See section 32140 for
the 	required contents 	and a 	sample 	form.) 	The documents will
be 	considered 	properly 	"served" 	when personally delivered or
deposited 	in 	the 	first-class 	mail postage paid 	and properly
addressed.
Extension 	of 	Time
A 	request 	for 	an extension of time 	in which to file a document
with the Board 	itself must 	be 	in writing 	and 	filed with the
Board 	at 	the previously noted 	address. 	A request 	for 	an
extension must be 	filed at 	least three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the document.
The 	request 	must 	indicate good cause 	for 	the position of 	each
other 	party 	regarding 	the 	extension 	and 	shall 	be 	accompanied 	by
proof of 	service of 	the 	request upon each party 	(section 	32132).

February 28, 	1986
DISMISSAL OF UPC
LA-CE-2314
Page 3
Final Date
If no appeal 	is filed within the 	specified time limits, 	the
dismissal will become 	final when the 	time limits have expired,
Very 	truly yours,
JEFFREY SLOAN
General Counsel
Barbara T. 	Stuart
Regional 	Attorney
BTS:eb
Attachment
cc: 	Robert Hoagland

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BIVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
February 	19, 	1986
Wayne 	Kay 	Hill
Re: 	LA-CE-2314, 	Wayne Kay Hill v. Lucia Mar Unified
School 	District
Dear Mr. Hill:
The 	above-referenced 	charge 	filed on January 	21, 	1986 	alleges
that from September 	28, 	1984 	through June 	1985 	the Lucia Mar
Unified 	School District 	unlawfully 	withheld 	money 	from the
paycheck 	of Wayne Kay Hill 	for 	agency 	fees paid 	to his
exclusive representative, 	the California School Employees
Association 	(CSEA). 	This conduct is alleged to violate
Government Code 	section 3543.5(a) 	of 	the Educational Employment
Relations 	Act 	(EERA).
Article XIII, 	section 3 of the 7/1/84 - 	6/30/87 	agreement
between CSEA 	and 	the District reads:
The 	District will deduct an amount equal 	to
CSEA dues 	from 	the 	salary warrant of 	any
employee who does not 	request 	that such
deduction not be made between September 	1 -
September 15, 	1984. 	. . . 	It 	is understood
and 	agreed 	that each unit member will be
notified of his/her 	options.
On August 8, 	1984, 	the District's supervisors distributed to
the 	bargaining 	unit 	employees working 	during 	the 	summer 	written
notification 	that 	they must 	request between September 	1 and 	15,
1984 	that agency 	fees not be deducted. 	Mr. 	Hill claims he did
not 	receive 	this 	notification 	from his 	supervisor. 	Having
received no communication from Mr. 	Hill, 	the District deducted
agency 	fees 	from his 	September 	1984 	and 	subsequent paychecks.
Mr. 	Hill 	filed a grievance regarding 	the District's 	conduct 	in
March 	1985 	pursuant 	to 	the negotiated contract. 	The basis for
the 	grievance was 	that 	the 	District 	failed 	to notify him that
the 	contract 	required 	each employee 	requesting 	the elimination
of 	agency 	fee deductions 	to submit 	a 	statement during 	the
two-week period of 	time 	in September 	1984. 	The District denied
the grievance 	in April 1985 and Mr. 	Hill 	then filed a public

February 19, 	1986
LA-CE-2314
Page 2
entity 	claim which 	the 	District's 	Board 	of 	Trustees 	denied on
July 17, 	1985. 	Mr. Hill left the employ of the District 	in
June 1985.
In January 	1986 Mr. 	Hill's 	attorney 	advised him of 	the 	role of
the Public Employment Relations Board 	(PERB) 	in resolving
employee-employer 	disputes. 	Mr. 	Hill 	immediately filed the
instant charge.
The merits of 	this case will not be 	addressed because 	the
charge 	is barred 	by the EERA's 	six-month statute of
limitations. 	Government Code section 3541.5(a) 	provides 	in
pertinent part:
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, 	. 	. 	.
In San Dieguito Union High School District 	(1982) 	PERB Decision
No. 	194, 	PERB held that, 	to state a prima facie violation, 	the
charging 	party must allege 	and 	ultimately 	establish 	that 	the
employer's conduct either 	occurred 	or was discovered within 	the
six-month 	period 	immediately preceding 	the 	filing 	cf 	the 	charge
with PERB. 	This 	requirement 	cannot be 	excused 	by 	the 	fact 	that
the 	charging 	party did 	not 	know of possible 	legal 	remedies
through PERB 	until after 	the six-month period elapsed. 	In 	the
instant case, 	the September 	1984 withholding of wages
constituted Mr. 	Hill's 	first knowledge of 	the alleged unfair
practice. 	This charge was filed on January 21, 	1986, 	16 months,
after 	the 	alleged 	unfair practice 	occurred.
Two exceptions 	to the 	six month 	filing 	requirement do exist.
These 	are 	the 	doctrines of continuing violations 	and 	equitable
tolling. 	However, 	even applying 	these doctrines 	the 	instant
charge 	is 	not 	timely.
In San Dieguito Union High School District, 	supra, 	the Board
stated 	that 	certain employer 	conduct may constitute 	a
"continuing 	violation" where 	it 	is 	reimplemented or 	revived
within 	the 	six-month period. 	It could 	be 	found 	that 	the
employer's 	conduct 	in 	this case did constitute 	a continuing
violation. 	While 	the Board has decided no cases on point, 	the

February 19, 	1986
LA-CE-2314
Page 3
National 	Labor 	Relations Board 	has 	found 	that an employer's
unlawful monthly withholding of union dues 	is 	a continuing
violation. 	Norfolk, 	Portsmouth Wholesale Beer Distributors
Association 	(1972) 	196 NLRB 1150 	[80 LRRM 1235]. 	The instant
case 	involving 	the District's 	alleged unlawful monthly
withholding of 	agency 	fees 	arguably was 	also a continuing
violation until Mr. 	Hill's departure 	from the District's 	employ
in June 1985.
PERB 	recognizes 	the 	doctrine of 	equitable 	tolling 	as described
in the case of Elkins v. 	Derby 	(1974) 	12 Cal.3d 410. 	Tolling
is permitted when 	a party pursues 	alternative administrative
remedies, 	such as a grievance, 	which provide the respondent
with 	notice 	that 	it should preserve 	relevant evidence. 	Los
Angeles Unified School District 	(1982) 	PERB Decision No. 	237.
Hill's public 	entity 	claim arguably 	tolled 	the 	statute 	of
limitations until July 17, 	1985. 	However, 	even so, more than
six months elapsed between 	that date 	and 	the 	filing of 	the
instant charge. 	Granting 	the public 	entity claim tolling
status would mean 	that 	the charge had 	to be 	submitted 	by
January 17, 	1986 	in order to be deemed timely.
For 	the above reasons, 	it 	is concluded that the unfair practice
charge was 	not timely 	filed 	and must 	therefore be dismissed.
If you 	feel 	that 	there 	are 	facts which would 	correct 	the
deficiencies 	explain above, 	please amend 	the charge
accordingly. 	The 	amended 	charge 	should 	be prepared on a
standard 	PERB 	unfair 	practice 	charge 	form clearly 	labeled 	First
Amended Charge, 	contains 	all the 	facts 	and allegations you wish
to make, 	and be 	signed under penalty of perjury by 	the charging
party. 	The 	amended charge must be 	served on the 	respondent and
the original proof of 	service must be 	filed with PERB. 	If 	I do
not 	receive an amended charge or 	withdrawal 	from you on or
before February 26, 	1986, 	I 	shall dismiss your charge. 	If you
have any questions on how to proceed, 	please call me at 	(213)
736-3127.
Sincerely yours,
Roger 	Smith
Labor 	Relations 	Specialist
RS:eb