California State Employees Association (Calloway) (PERB 0497H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARY L. 	CALLOWAY,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Respondent.
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) 	Case No. 	S-CO-3-H
PERB Decision No. 	497-H
March 14, 	1985
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Appearances: 	Mary L. 	Calloway, 	on her own behalf; 	Howard
Schwartz, 	Attorney for 	California 	State 	Employees1 Association,
Before Hesse, Chairperson; Jaeger, 	Morgenstern and Burt,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
on 	appeal 	by 	charging party of 	the 	Board 	agent's 	dismissal,
attached 	hereto, 	of her 	charge 	alleging 	that 	the California
State 	Employees' 	Association 	violated 	the Higher 	Education
Employer-Employee Relations Act 	(Gov. 	Code sec. 	3560 et seq.).
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
error, 	adopt 	it as 	the Decision of 	the Board 	itself.
ORDER
The unfair 	practice 	charge 	in Case No. 	SF-CO-3-H 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD
__)

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
October 26, 1984
Mary 	Calloway
Chico, 	CA 	95926
Howard 	Schwartz, 	Esq.
CSEA
1108 	"0" 	Street
Sacramento, 	CA 	95814
Re: 	Calloway v. 	California state Employees Association; 	Charge
No. S-C0-3-H
Dear Parties:
The 	above-referenced 	charge 	alleges 	that 	the 	California 	State
Employees Association 	(CSEA) 	failed and/or 	refused 	to process
your 	grievance 	and 	other 	employment 	related 	complaints 	due 	to
unfair, invidious, arbitrary, capricious, and/or discriminatory
reasons. 	This conduct 	is alleged to violate section 3578 of
the Higher Education Employer-Employee Relations Act 	(HEERA).
I 	indicated 	to charging party 	in my letter 	dated October 	11,
1984 that 	the above-referenced charge did not 	state a prima
facie case and 	that 	unless 	she amended 	the charge 	to state a
prima facie case or withdrew it prior to October 19, 	1984 it
would be dismissed. 	More specifically, 	I 	informed her 	that 	if
there were any factual 	inaccuracies 	in the letter or additional
facts which would 	correct 	the deficiencies explained 	in that
letter, 	she should amend the charge accordingly.
I 	have not 	received either 	a 	request for withdrawal 	or 	an
amended 	charge and 	am therefore 	dismissing this 	charge based 	on
the facts and 	reasons 	stated in my October 	11, 	1984 	letter
which 	is attached as Exhibit 	1.
Pursuant 	to Public 	Employment Relations 	Board 	regulation
section 32635 	(California Administrative Code, 	title 8, 	part
III), 	the charging party may appeal the refusal to issue a
complaint 	(dismissal) 	to the Board itself.
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
November 15, 	1984, 	or sent by telegraph or certified United
•,

States mail postmarked not 	later 	than November 	15, 	1984
(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 	to issue a
complaint, 	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 the document 	filed with the Board
itself 	(see 	section 	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.
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 	(section 32132).
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,
DENNIS M. 	SULLIVAN
General 	Counsel
By Jorge A. Leon
Staff 	Attorney

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 	95814
(916) 322-3088
October 11, 	1984
Mary 	Calloway
Re: 	Calloway v. 	CSEA, 	S-CO-3-H
Dear Ms. Calloway:
The 	charge you have 	filed 	against CSEA 	alleges 	that California
School Employees Association 	failed 	ana/or 	refused 	to process
your 	grievance 	and 	other 	employment 	related complaints 	due 	to
unfair, 	invidious, arbitrary, capricious, and/or discriminatory
reasons. 	My 	investigation revealed 	the 	following 	facts.
During 	the period 	1973-1980, 	you were 	employed by California
State University, 	Chico Associated Students 	(A.S.) 	as a window
cashier 	and 	as 	em 	intermediate account 	clerk. 	During 	this
period, 	your 	duties 	became progressively 	more complex and
numerous. 	You became dissatisfied with 	the 	large volume of
work 	required by your 	employer. 	You desired 	advancement but
came 	to 	the opinion that A.S. 	hired ana promoted on 	the basis
of 	favoritism or 	friendship. 	A performance evaluation done 	by
your 	then supervisor, 	Mrs. 	Friedman, 	rated you 	"very low," and
you were 	dissatisfied 	with 	it.
In September 	1980, 	you resigned your position with A.S. 	"due to
stress, 	continued 	longstanding 	accounts 	receivable problems
beyond 	[your] 	control 	and discrimination" 	and 	took 	a parallel
job with CSU, 	Chico. 	The 	job change resulted in a 	loss of
seven years 	seniority, 	loss of accumulated 	sick 	leave and an
unused personal 	holiday.
A 	job audit 	report 	issued on 	September 	16, 	1980 	concluded 	that
your position was 	correctly classified. 	However, 	you noted
that 	the 	audit did 	not 	include 	all 	the 	duties which your
supervisor 	required you 	to perform. 	You 	initiated 	a contact 	in
September 	1980 	with 	CSEA Job Representative Chuck 	Oliver 	to
discuss 	a possible 	grievance 	regarding 	the 	audit. 	No grievance
resulted 	from 	this 	meeting.
In 	June 	1981, 	you 	filed 	a claim with FEBC after 	unsuccessfully
requesting 	unspecified 	CSEA 	representatives 	to 	assist you 	in
pursuing 	a 	complaint 	against 	your 	employer 	tor 	discrimination
c,,,,,,,"'·'.. ~ ,··...~.- ::-,,-·-- ~

on 	the 	basic 	of sex and 	race. 	In 	February 1982, you 	received
and 	filed 	a 	"Request 	for 	Services," 	seeking 	legal
representation assistance 	from CSEA. 	In March 1982, 	you met
with Chuck Oliver 	again 	to discuss 	the 	audit, 	the 	job
evaluation, 	and 	the 	lost 	seniority and personal holiday.
Oliver 	told you 	that 	these 	were probably 	not 	transferable. 	He
stated he 	would not bo able 	to help with 	respect 	to 	the
discrimination 	allegation 	"since 	the 	investigation 	is
underway." 	This 	apparently 	is 	a 	reference 	to the pending FEPC
investigation. 	In June 	1932, 	you were 	informed by Mrs. 	Hall
that 	SPB had 	concluded 	that 	your 	job had 	been properly
classified. 	Again, 	you noted discrepancies between 	their
findings and your actual duties.
Mary 	Calloway
October 11, 	1934
Page 2
In 	June 1982, you 	requested 	assistance 	from Oliver 	in 	the
working out-of-class 	matter. 	Oliver 	responded 	that 	there 	was
nothing he could do. 	Also 	in June 	1982, 	the 	FEPC 	investigation
came 	to a 	conclusion; 	that 	agency having 	found 	insufficient
evidence of discrimination. 	You then 	took 	the matter 	to the
EEOC. 	That 	agency 	reviewed 	the 	matter 	and 	determined 	to accept
FEPC's 	statement of the matter, 	i.e., 	that 	there was
insufficient 	evidence 	of discrimination.
In 	September 	1932, 	you contacted CSEA field representative
Sherry Hunt. 	She 	assisted you 	in putting 	together 	an
out-of-class 	claim to be 	filed with the 	State 	Board of
Control. 	She advised you 	at 	that 	point 	that 	the 	Board of
Control may 	not 	accept 	the 	case 	and 	that 	the matter may have 	to
be 	taken to 	small claims 	court. 	During that 	same month, 	you
"learned" 	that 	the discrimination 	complaint and 	the
out-of-class 	claim 	should 	be 	pursued 	separately 	and 	that 	the
discrimination 	complaint 	should have been 	first presented 	to
the 	SPB. 	You 	asked CSEA to act on your 	request 	for
representation. 	In December 	1982, 	CSEA Attorney
Bradley G. 	Booth 	sent you 	a 	letter denying your 	request 	for
representation 	on 	the basis 	that 	the 	evidence of 	discrimination
was 	very weak and 	on the 	further basis 	that FEPC's
investigation had 	resulted 	in 	a 	finding 	of 	insufficient
evidence of discrimination. 	Mr. 	Booth's 	letter of December
1932 	advised you 	that 	you 	could 	appeal his 	determination by
writing a 	letter 	to Gary Reynolds, 	executive 	secretary,
Representation Appeals 	Panel.
In 	February 1983, you 	returned 	the 	signed 	out-of-class 	claim to
Sherry Hunt, 	which she? 	had given to you in November 	1982.
Apparently, 	miscommunications 	led 	you 	to believe 	that 	CSEA had

Mary 	Calloway
October 11, 	1984
Page 3
filed 	the 	claim on your behalf 	in December 	1932. 	The matter
was 	assigned 	in April 	1933 to Al 	Riolo, 	CSEA representative.
In May 1983, 	yon 	learned 	from Mr. 	Riolo that 	the Board of
Control 	had 	denied 	or 	would 	deny your 	out-of-class 	claim
because 	the Associated 	Students was 	a private 	firm, 	and not 	a
government 	employer. 	You asked him why CSEA had 	not 	filed the
claim in court 	since 	everyone knew A.S. was a private 	entity.
Riolo 	responded 	that 	that 	had been 	the 	only alternative.
A Board of 	Control hearing 	on your 	claim was 	set 	for 	June
1983. 	You 	advised 	the Board 	that you would attend. 	Riolo
called and 	said he would go 	to the hearing 	with you. 	However,
on 	the 	day before 	the 	scheduled hearing, 	a Board of Control
representative called 	to reschedule the hearing 	in July. 	In
July, 	you 	received 	another 	call 	from the 	Board 	saying 	that 	the
hearing had 	been 	cancelled 	altogether 	as 	your 	claim had been
denied.
In July 1983, 	you 	set out 	to seek a private 	lawyer 	to help you
with 	the discrimination 	claim 	and 	the out-of-class 	claim. 	You
were unable 	to engage 	the 	services 	of any private 	attorney
because they 	charged 	too much money. 	One 	attorney you
contacted, 	David 	Seales, 	unsuccessfully tried 	to get 	CSEA to
pay his 	fees 	to 	represent you.
Sometime before December 	1933, 	you 	filed an in propia persona
claim of discrimination 	in the 	federal district 	court. 	In
February 1984, 	you went 	to CSEA's 	office 	to seek 	legal
assistance 	in 	the 	federal 	court matter. 	You spoke 	to
Steven Bassoff. 	Upon 	learning 	that 	CSEA Attorney 	Booth had
already denied 	legal 	assistance, 	Bassoff 	advised you 	that you
would have 	to appeal 	Booth's denial 	to his 	supervisor. 	You
requested 	that you be allowed 	to 	speak with 	the 	supervisor.
That 	request 	was 	denied. 	The 	charge herein was 	filed on
July 30, 1984.
proble--------Statute of 	limitations: 	There 	is a statute of 	limitations
m with your 	charge. 	To 	state a prima 	facie violation,
you 	must 	allege 	and 	ultimately 	establish 	that 	the 	alleged
unfair practice 	either 	occurred or 	was discovered within 	the
six-month 	period 	immediately preceding 	the 	filing 	of 	the 	charge
with PERB. 	HEERA section 3563.2(a); 	Danzansky-Goldbgrg
Memorial Chapels, 	Inc. 	(1982) 	264 NLRB 11.2 [ll2 LRRM 1103];. . . Co.(1982)285 NLRB No. 206 [112 LRRM 1080];
A.F.C. Industries, 	Inc. (Amcar Division) (1978) 234 NLRB 1063

[98 LRRM 1287], 	e n f d as modified 	(3 Cir. 	1979) 	595 F.2d 1344
[100 LRRM 	3074]. 	The 	national 	labor 	Relations 	Board 	cases
cited here hold 	that 	the 	six-month period 	commences 	on 	the date
the 	conduct 	constituting 	the unfair practice 	is discovered. 	It
does not 	run 	from 	the 	discovery of 	the 	legal 	significance of
that conduct.
Mary 	Ca11oway
October 11, 	1984
Page 	4
In 	some decisions 	interpreting 	the 	National 	Labor Relations
Act, 	it has been held that a charge concerning allegedly
unlawful 	conduct which occurred, 	and was Known 	to charging
party, 	more 	than 	six months before 	the 	charge was 	filed was not
time barred 	a--------s 	long 	as the 	conduct 	recurred within 	the
six-months preceding 	filing. 	San Dieguito Union High 	School
District 	(2/25/82) 	PERB 	Decision 	No. 	194. 	In that case, 	a
school district 	unilaterally 	implemented 	a policy 	requiring
teachers 	to sign out every time, they left 	the campus. 	This
policy was 	implemented during 	the 	fall of 	1977. 	A charge of
unfair 	practice 	was 	not 	filed by 	the 	union 	until 	May 	1979 	—
two years 	later. 	The district argued 	that 	the union's charge
exceeded 	the 	statutory limitation of 	six months. 	The union
argued 	that 	the 	time bar 	should not 	apply because a new
violation 	occurred 	each day 	that 	the district 	enforced 	its
policy and, 	therefore, 	it was a continuing violation. 	PERB
disagreed. 	Although 	PERB adopted 	the 	"continuing 	violation"
concept, 	upon reviewing the federal cases, 	it held that this
case 	did not 	present 	a continuing 	violation. 	Examples of
instances 	that have been held 	to be a 	continuing violation 	are
an 	employer's 	monthly withholding 	of union 	dues 	(Beer
Distributors 	(1972) 	196 NLRB 165) 	and discriminatory refusals
to hire 	(NLRB v. 	Textile Machine Works, 	Inc. 	(3d Cir. 	1954) 	214
F.2d 929). 	However, 	the refusal to rehire a discriminatorily
discharged 	employee 	is 	not 	a continuing 	violation 	(San
Dieguito, supra, p. 9 ) .
CSEA first 	denied your 	request 	for 	representation 	in writing 	on
December 	20, 	1982 	in a letter 	signed by Bradley Booth. 	You
filed your unfair practice charge on July 	30, 	1984, 	almost 	two
years after 	the 	alleged 	occurrence 	of 	the unfair practice.
Although you 	renewed 	your 	request 	for 	representation 	in
July 1983, through 	Attorney Seales, and 	in 	February 1984, those
actions 	do not 	start 	a new 	six-month 	statute 	of 	limitations
running. 	It 	was 	way back 	in December 	1982 that you 	first
learned 	of 	the 	union's 	refusal 	to provide 	representation 	in 	the
discrimination matter. 	The 	facts of your 	case more closely
resemble 	those 	cases 	where 	a continuing 	violation was not 	found
to exist.

Mary 	Calloway
October 	11, 	1934
Page 	5
PERB, 	in 	some 	instances, 	has 	ruled 	that 	the pursuit by 	the
charging 	party 	of 	an 	alternate 	remedy 	"equitably 	tolls" 	the
statute 	of 	limitations. 	San 	Dieguito Union 	High 	School
District, 	supra; 	Los 	Angeles 	Unified 	School 	District(9/20/82)
PERB 	Decision 	No. 	237; 	Regents 	of 	the University of California
(Berkeley) 	( 9/27/83 ) 	PERB 	Decision 	"No. 	353-H. 	The test is
whether 	charging 	party has 	pursued 	a 	remedy 	"reasonably 	and 	in
good 	faith." 	PERB 	stated 	in 	San 	Dieguito 	Union High 	School
District, 	supra.
The 	alternate 	chosen 	must 	represent 	a
practical 	effort 	to 	resolve 	[the] 	dispute
expeditiously. 	San 	Dieguito Union 	High
School District, 	supra.
It 	could 	be 	argued 	that 	equitable 	tolling 	may 	apply 	to 	your
case 	in 	that you 	filed a 	federal 	court 	suit 	and 	the 	Board of
Control claim was pending; 	however, 	the 	federal 	suit was not
filed 	until 	near 	December 	1983 	while 	CSEA 	informed you 	that
they would 	not 	represent 	you 	in December 	1982.
Failure 	to 	State 	a 	Prima 	Facie 	Case
Assuming, 	arguendo, 	that 	there were 	no 	statute of 	limitations
bar 	on 	this 	charge, 	you have 	still 	failed 	to make 	out 	a prima
facie 	case 	of 	a 	violation 	of 	Government 	Code 	section 	3578,
which 	is 	the 	provision 	addressing 	an 	employee's 	right 	to be
represented 	fairly 	and 	impartially.
The 	National 	Labor 	Relations 	Board 	has 	pointed 	out 	that 	the
relationship between 	a 	union 	representative 	and 	an 	employee 	is
not 	that 	of 	attorney 	and 	client. 	Beverly 	Manor 	Convalescent
Center, 	229 	NLRB 	629, 	95 	LRRM 	(1977).
The 	union's 	stated 	reasons 	for 	refusing 	to 	represent 	you 	seem
to 	be based 	upon 	a 	reasoned 	assessment 	of 	the 	factual 	evidence
available 	to 	support 	either 	the 	out-of-class 	claim or 	the
discrimination 	claim. 	The 	out-of-class 	claim 	is 	weakened by
the 	several 	findings 	already 	against 	you, 	as 	is 	equally 	true of
the 	discrimination 	claim. 	CSEA's 	claim 	thus 	appears 	to be
based 	upon 	rational, 	objective, 	and practical 	considerations.
I 	have 	been 	unable 	to 	uncover 	any 	evidence 	of 	discriminatory,
arbitrary 	or 	bad 	faith 	motive. 	The 	voluminous 	documents 	you
have 	submitted 	in 	support 	of 	the 	charge 	do 	not 	contain 	any
evidence 	of 	such 	wrongful 	motivation. 	V7ithout 	such 	evidence,
according 	to 	PERB precedent, 	there 	is 	no prima 	facie 	case. 	See

Theresa M. Dyer v. California 	School Employees Association. on	on
(9/23/83) PERB Decision No. 	342; 	Reed 	District 	Teachers
Association, 	CTA/NEA 	(Reyes) 	(8/l5/83) 	PERB 	Decision 	No. 	332.
Thus, 	there 	is no evidence 	that 	CSEA acted 	in 	a discriminatory,
arbitrary manner or 	in bad 	faith 	sufficient 	to make out 	a
violation of 	its 	duty of 	fair 	representation.
Mary 	Calloway
October 11, 	1984
Page 6
1?. you feel that there are any factual inaccuracies;, in thin
letter 	or 	any additional 	facts 	which would correct 	the
deficiencies 	explained 	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, 	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 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 before
October 19, 1984, 	I 	shall dismiss your charge. 	If you have any
questions on how to proceed, 	please call me at 	(916) 	323-7990.
Sincerely yours,
Jorge Leon
Staff Attorney