California School Employees Association, Chapter 245 (Waymire) (PERB 1448E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL WAYMIRE,
Charging Party, Case No. SF-CO-580-E

Vv. PERB Decision No. 1448

CALIFORNIA SCHOOL EMPLOYEES June 25, 2001

ASSOCIATION, CHAPTER 245,

Respondent.

Appearances: Michael Waymire, on his own behalf; California School Employees Association
by Sonja Johnson, Attorney, for California School Employees Association, Chapter 245.

Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Michael Waymire (Waymire) of a Board agent's dismissal (attached) of his unfair
practice charge.
The charge alleged that the California School Employees Association, Chapter 245
(CSEA) violated section 3543.6 of the Educational Employment Relations Act (EERA)’ by

failing to represent Waymuire properly.

' EERA is codified at Government Code section 3540 et seq. Section 3543.6 states:
It shall be unlawful for an employee organization to:

(a) Cause or attempt to cause a public school employer to violate
Section 3543.5.

(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or

After reviewing the entire record in this case, including the original and amended unfair
practice charge, the dismissal and warning letters, Waymire's appeal and CSEA's response, the
Board finds the dismissal letter to be free from prejudicial error and adopts it as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CO-580-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
otherwise to interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter.
( c) Refuse or fail to meet and negotiate in good faith with a public
school employer of any of the employees
of
which it is the exclusive
representative.
(d) Refuse to participate in good faith in the impasse procedure set forth
in Article 9 (commencing with Section 3548).
2

STATE
OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento
Regional
Office
I 031 18th Street
Sacramento, CA
95814-4174
Telephone: (916)
327-8386
Fax: (916) 327-6377
April 27, 2001
Michael Waymire
2095 Highland Street
Seaside, California 93955
Re: 	Michael Waymire
v.
California School Employees Association, Chapter 245
Unfair Practice Charge No. SF-CO-580-E
DISMISSAL LETTER
Dear Mr. Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 19, 2000. You amended this charge on February 7, 2000.
You allege that the California School Employees Association, Chapter 245 (CSEA) violated the
Educational Employment Relations Act (EERA)1 by failing to properly represent you. 	We
discussed this charge on January
31
and on March 7, 2001.
I indicated to you in my attached letter dated March 9, 2001, 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 March 16, 2001, the charge would be dismissed. 	You requested and
were granted an extension
of
time to amend your charge.
On March 14, 2001, this office also received a document from you which was titled "PETITION
FOR COURT ORDERED BINDING ARBITRATION". Because you referenced this unfair
practice charge on that document, it was referred to me. In that document you request a "court
order to proceed to binding arbitration ... " However, PERB is not authorized to comply with your
request for such an order. PERB is empowered to remedy unfair practice charges where a
violation is found.
I received your amended charge on March 28, 2001. However, there were no facts which cured
the deficiency which I described in my letter
of
March 9 th . The actions taken by CSEA, which
you allege were discriminatory and violate your right to fair representation, occurred outside the
six month statutory limitations period. These actions include the initial denial, in 1998, of your
request to proceed to arbitration on an issue involving Education Code section 88204. 	The
renewal of that request in August 2000, does not make the CSEA refusal to pursue that matter a
timely allegation. 	As set forth in my letter of March 9t\ the EERA prohibits PERB from issuing a
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-580-E
April 27, 2001
Page 2
complaint "based on an alleged unfair practice occuring more than six months prior to the filing
of the charge". Because your charge is untimely, it must be dismissed.
In your amended charge, you state that, in my letter of March 9 1\ 	I incorrectly stated that you had
requested that PERB reopen your former unfair practice charge, SF-CO-522-E. Please be aware
that the error was inadvertent and I apologize for any confusion which may have resulted.
In your amended charge, you have alleged that CSEA and other entities have discriminated
against you based on sex, religion and several other prohibited bases. PERB has no jurisdictionto
assist you in those matters. 	You may wish to contact the California Department of Fair
Employment and Housing.
You have also stated a request to have your case taken to an appropriate civil court outside the
county of Monterey and state of California. PERB cannot provide you with advice or assistance
with that request and can only suggest that you seek the assistance of a qualified attorney.
Right to Appeal
Pursuant to PERB Regulations2, 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
~ PERB's Regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

SF-CO-580-E
April 27, 2001
Page 3
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
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
~
	~	
A	
1J	
n
·0.J('_	
\\{/~~
Bernard McMonigle
Regional Attorney
Attachment
cc: 	Sonja Johnson
BMC

STATE OF CALIFORNIA 	GRAY
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento
Regional
Office
1031 18th Street
Sacramento,
CA
95814-4174
Telephone: (916)
327-8386
Fax:
(916) 327-6377
March
9,
2001
Michael Waymire
2095 Highland Street
Seaside, California 	93955
Re: 	Michael Waymire v. California School Employees Association, Chapter 245
Unfair Practice Charge No. SF-CO-580-E
WARNING LETTER
Dear Mr.Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 19, 2000. 	You amended this charge on February 7,
2000. You allege that the California School Employees Association, Chapter 245 (CSEA)
violated the Educational Employment Relations Act (EERA)1
by failing to properly represent
you. 	We discussed this charge on January
31
and on March 7, 2001.2
In your charge you have alleged that CSEA failed to represent you with regard to several
grievances that you filed against your employer, the Monterey Community College District in
1996 and 1997. The grievances regarded eight alleged violations
of
the collective bargaining
agreement. You also allege that in 1996 and 1997 CSEA representatives took reprisals against
you by creating an intimidating and hostile work environment.
In 1998 you requested that CSEA pursue one
of
your grievances, over unpaid holiday pay
under Education Code 88203 and 88204, to arbitration. 	CSEA did not do so. 	You renewed
that request in August
of
2000 and CSEA did not respond.
EERA section 3541.5(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 charging party bears the burden
of
demonstrating that
1 EERA is codified at Government Code section 3540 et seq. The text
of
the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 You have also requested that PERB reopen and reconsider Unfair Practice Charge SF-
CO-522 because of possible bad faith by your attorney. 	That case was dismissed by a PERB
regional attorney in May of 1997. 	I am unable to reopen the charge. 	Any appeal of that
dismissal, as well as request to excuse a late filing, must be addressed to the Board itself under
PERB regulation 32300.

SF-CO-580-E
March
9,
2001
Page 2
the charge
is
timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
As we have discussed, the actions taken by CSEA, which you allege violated your right to fair
representation and were discriminatory, occurred outside the six month statutory limitations
period. 	These actions include the original failure
of
CSEA to pursue your grievance on
holiday pay to arbitration. 	Renewal
of
the request in August
of
2000, does not make the
CSEA's refusal
to
pursue the matter to arbitration timely. 	Because the charge is untimely, it
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
top right hand comer
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 March 16, 2001, I shall dismiss
your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
DJlBernard McMonigle
Regional Attorney
BMC