California Association of Professional Scientists (Torba) (PERB 1408S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LIFORNIA
OF THE
RELATIONS BOAR
FLORENCE ELAINE TORBA,
Charging Party,
v.
CALIFORNIA ASSOCIATION OF
PROFESSIONAL SCIENTISTS,
Respondent.
Case No. SA-CO-229-S
PERB Decision No. 	1 4 0 8 - S
S e p t e m b e r 	2 7 , 	2000
Appearance: 	Florence Elaine Torba, on her own behalf.
Before Dyer, Amador and Baker, Members.
DECISION
DYER, Member: This case comes before the Public Employment Relations
Board (Board) on appeal from a Board agent's dismissal (attached) of Florence Elaine
Torba's (Torba) unfair practice charge. 	Torba's charge alleges that the California
Association of Professional Scientists breached its duty of fair representation, in
violation of section 3519.5(c) of the Ralph C. Dills Act (Dills Act),1 by failing to
represent her when she was involuntarily transferred in July, 1998.
1 The Dills Act is codified at Government Code section 3512 et seq. Section
3519.5 provides, in pertinent part:
It shall be unlawful for an employee organization to:

2
The Board has reviewed the entire record in this case, including the unfair
practice charge, the warning and dismissal letters and Torba's appeal. 	The Board finds
the warning and dismissal letters to be free from prejudicial error and adopts them as
the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SA-CO-229-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
(c) Refuse or fail to meet and confer in good faith with a
state agency employer of any of the employees of which it
is the recognized employee organization.
2

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i
STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LIFORNIA
OF THE
RELATIONS BOAR
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916)327-8386
Fax: (916) 327-6377
LIFORNIA
OF THE
RELATIONS BOAR
May 25, 2000
Florence Elaine Torba
Re: Florence Elaine Torba v. California Association of Professional Scientists
Unfair Practice Charge No. SA-CO-229-S
DISMISSAL LETTER
Dear Ms. Torba:
You filed the above-referenced unfair practice charge with the Public Employment Relations
Board (PERB or Board) on April 10, 2000. The charge alleges a violation of the duty of fair
representation by the California Association of Professional Scientists (CAPS or Union).
I indicated to you in my attached letter dated April 19, 2000, that the above-referenced 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. 	You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to April 26, 2000, the charge would be dismissed.
You were granted an extension of time and filed an amended charge on May 1, 2000. In that
amended charge, you state that you did not have sufficient knowledge of contract provisions
with regard to your transfer until "I found the 1992-1993 contract summary on October 6,
1999." 	It was only at that time that you had sufficient information for challenging the Union's
handling of your complaints regarding your involuntary transfer in July 1998. 	Based on your
reading of the contract summary, you disagree with reasons given by Union representative,
Matt Austin to you in September 1998 to the effect that any grievance over the matter would
be "frivolous."
On or about October 6, 1999, you sent correspondence to CAPS president Dan Aquirre. On
November 19, 1999, CAPS representative Matt Austin sent you a letter in response to your
letter of October 6. 	In that letter, Mr. Austin confirmed the position he had taken a year
earlier, stating in part:
Your reassignment from the Food and Drug Lab to the Sanitation
and Radiation Lab is such a typical exercise of management
prerogative that filing of a grievance on the basis of some
imagined contractual prohibition is without merit. 	I believe we
discussed this in some detail, and on several occasions.

f
SA-CO-229-S
May 25, 2000
Page 2
As stated in my prior letter of April 19, 2000, it appears that you are alleging that CAPS
violated the duty of fair representation when they did not file a complaint or grievance on your
behalf in the summer and/or fall 1998. 	As discussed in my prior letter, the alleged violation
falls significantly outside the six months statutory limit found in Government Code section
3514.5(a). 	Recent discovery of the contractual summary does not toll the statute.
Accordingly, your charge must be dismissed.
Right to Appeal
Pursuant to PERB Regulations1, 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
1 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies of the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

SA-CO-229-S
May 25, 2000
Page 3
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 Regulation 32140 for the required contents and a
sample form.) 	The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. 	A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
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 and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By
Bernard McMonigle
Regional Attorney
Attachment
cc: Dennis Moss, Counsel
BMC:cke

-- 	-
STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LIFORNIA
OF THE
RELATIONS BOAR
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
LIFORNIA
OF THE
RELATIONS BOAR
April 19, 2000
Florence Elaine Torba
Re: Florence Elaine Torba v. California Association of Professional Scientists
Unfair Practice Charge No. SA-CO-229-S
WARNING LETTER
Dear Ms. Torba:
You filed the above-referenced unfair practice charge with the Public Employment Relations
Board (PERB or Board) on April 10, 2000. 	The charge alleges a violation of the duty of fair
representation by the California Association of Professional Scientists (CAPS or Union). 	I
called you by telephone to discuss this matter on April 18 and 19, 2000. However, there was
no answer.
According to your charge, you were involuntarily transferred in July 1998 and sought help
from the Union at that time. The most recent event described in your charge is that on
September 29, 1998, you talked to Matt Austin of CAPS about filing a complaint. At that
time, Mr. Austin referred to your complaint on the transfer as frivolous.
Government Code section 3514.5(a) states in relevant part that an employee shall have the
right to file an unfair practice charge. However, PERB may not "issue a complaint in respect
of any charge based on an alleged unfair practice occurring more than six months prior to the
filing of the charge." In your charge, filed on April 10, 2000, it appears that you are alleging a
violation that occurred in the summer and/or fall of 1998, which falls significantly outside the
six months statutory limit. Accordingly, your charge must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts which would correct the
deficiencies explained above, please amend the charge. 	The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by the charging party. 	The amended charge must have the case number written on the

SA-CO-229-S
Warning Letter
Page 2
top right hand corner of the charge form. 	The amended charge must be served on the
respondent's representative and the original proof of service must be filed with PERB. 	If I do
not receive an amended charge or withdrawal from you before April 26, 2000,1 shall dismiss
your charge. 	If you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC:cke