Association of California State Attorneys (Winston) (PERB 0931S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELCIE WINSTON, 	JR.,
Charging 	Party,
v.
ASSOCIATION 	OF 	CALIFORNIA 	STATE
ATTORNEYS,
Respondent.
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) 	Case No 	LA-CO-45- S
PERB Decision No. 	931-S
May 	14, 1992
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Appearance: 	Elcie Winston, 	Jr., 	on his own behalf.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by 	Elcie
Winston, 	Jr. 	(Winston) 	of the Board agent's dismissal, 	attached
hereto, 	of his 	charge that the Association of California 	State
Attorneys 	violated 	section 	3519.5 	of 	the Ralph C. 	Dills Act
(Dills Act) 	by breaching its 	duty of 	fair representation. 	We
have reviewed the dismissal, 	and 	finding 	it to be 	free of
prejudicial 	error, 	adopt it as the decision of the Board itself.
In his appeal, 	Winston, 	for the first time, 	raised facts
demonstrating 	the 	employer's 	harassing 	conduct 	toward 	charging
party. 	PERB Regulation section 326352 states, 	in pertinent part:
IThe 	Dills Act 	is 	codified at Government Code 	section 	3512,
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to 	the Government Code.
2 PERB 	Regulations 	are 	codified 	at 	California Code 	of
Regulations, 	title 8, 	section 31001, 	et seq.
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(b) 	Unless good cause is 	shown, 	a charging
party may not present 	on appeal 	new charge
allegations 	or new 	supporting 	evidence.
In accordance with this 	regulation, 	the Board will 	not 	consider
those 	facts 	raised 	for the 	first time on appeal. 	Further, 	these
additional 	factual 	allegations 	cannot 	be 	considered by 	the 	Board
as 	the 	alleged 	conduct 	occurred more than 	six months 	prior to 	the
filing of 	the unfair practice 	charge. 	(Dills Act 	section
3514.5(a).)
With 	regard 	to 	the 	Board 	agent's 	dismissal 	of 	Winston's
unfair practice 	charge as 	untimely, 	Winston asserts 	that the
Board agent 	informed him that 	he 	"had 	one 	year 	to 	file." 	Winston
claims 	he was 	never 	informed that 	the 	time 	limit was 	six months.
In Lucia Mar Unified School 	District 	(1986) 	PERB Decision No.
579, 	a 	Board agent dismissed an unfair practice 	charge on the
ground that 	it had not been timely filed. 	In the appeal, 	the
charging party 	acknowledged 	the 	untimely 	filing, 	but 	asserted
that 	he was 	led to believe 	that his 	telephone 	contact with 	the
Board agent, 	which arguably 	fell within the 	six-month 	limitation
period provided by 	statute, 	would 	constitute a 	timely 	filing.
The 	Board determined 	that 	the 	appeal 	lacked 	specificity 	in 	that
it 	failed 	to 	describe how the 	charging party was 	purportedly
misled 	by the 	Board 	agent. 	The 	Board 	concluded 	that 	the 	charging
party's 	general 	and unsupported 	assertion that 	he was 	misled was
insufficient 	to 	indicate 	any 	irregularity 	in the processing 	of
his 	unfair practice 	charge.
N	2

In the present case, 	Winston 	simply asserts 	that the 	Board
agent told him that he had a year to 	file, 	and that he was 	never
informed that the 	limit was 	six months. 	This 	statement does 	not
indicate whether 	the 	Board agent was 	discussing 	the 	filing 	of 	an
unfair practice 	charge or 	some other action. 	Further, 	section
3514.5(a) 	of 	the Dills Act 	specifically 	states 	that a 	timely
unfair practice 	charge 	must 	be 	based 	on alleged 	conduct 	occurring
within 	six 	months 	prior to 	the 	filing of 	the unfair practice
charge. 	Arguably, 	the Board agent's 	comment does 	not excuse
charging party's 	responsibility 	to 	file 	an unfair practice 	charge
pursuant to the Dills Act and PERB Regulations. 	However, 	even
assuming Winston was 	misinformed by 	the 	Board 	agent 	about 	the
statute of 	limitations 	for 	filing an unfair practice charge, 	the
factual 	allegations 	in the unfair practice 	charge do 	not 	state 	a
prima 	facie violation of 	section 	3519.5 	of 	the Dills Act.
The unfair practice 	charge 	in Case No. 	LA-CO-45-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	join in this 	Decision.
w	
3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 5, 	1992
Elcie Winston Jr.
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
Unfair Practice Charge No. 	LA-CO-45-S
Elcie Winston Jr. 	v. 	Association of California
State Attorneys
Dear Mr. 	Winston:
On November 6, 	1991, 	you 	filed the above-referenced charge
alleging 	that 	the Association of 	California 	State Attorneys 	(ACSA
or Association) 	failed, 	as the exclusive representative, 	to
fairly 	represent 	you 	and 	thus 	violated 	Government 	Code 	section
3519.5 of the Ralph C. 	Dills Act 	(Dills Act).1
I 	indicated to you 	in my 	attached 	letter dated 	February 	18, 	1992
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 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend the
charge accordingly. 	You were 	further advised that unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew it
prior to February 25, 	1992, 	the charge would be dismissed. 	On
February 25, 	1992, 	I granted you an extension until Wednesday,
March 4, 	1992, 	for my receipt of an amended charge. 	After the
close of business on March 4, 	1992, 	I 	left you a message that as
I 	had not received an amended charge, 	I was 	going to 	issue a
dismissal on March 5, 	1992. 	I 	requested that you call me 	first
thing on March 5, 	1992, 	if you had any questions.
I 	have 	not heard 	from you, 	nor received either a 	request 	for
withdrawal or an amended charge. 	I 	am therefore dismissing the
charge based on the 	facts 	and reasons 	contained 	in my
February 	18, 	1992 letter.
1I am treating your case as 	one 	alleging a 	violation of 	the
union's 	duty of 	fair representation 	(DFR) 	in violation of
Government Code section 3519.5(b).
(ii)

Dismissal
LA-CO-45-S
March 5, 	1992
Page 2
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	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 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must be actually received by the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified 	or 	Express 	United 	States 	mail postmarked no 	later 	than
the 	last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
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
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date of 	service of the appeal 	(California Code of
Regs., 	tit. 	8, 	sec. 	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 California Code of Regs., 	tit. 	8,
sec. 	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 	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 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

O 	O
Dismissal
LA-CO-45-S
March 5, 	1992
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,
Sincerely,
JOHN W. 	SPITTLER
General 	Counse. l/
By
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	Ernest F. 	Schulzke, 	Esq., Assoc. of California State
Attorneys 	and Administrative 	Law Judges

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
February 18, 	1992
Elcie Winston Jr.
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-45-S
Elcie Winston Jr. 	v. 	Association of California State
Attorneys
Dear Mr. 	Winston:-
On November 	6, 	1991, 	you 	filed the above-referenced charge
alleging that 	the Association of California State Attorneys 	(ACSA
or Association) 	failed, 	as the exclusive representative, 	to
fairly 	represent 	you 	and 	thus 	violated Government Code 	section
3519.5 of the Ralph C. Dills Act (Dills Act).1
I
Your 	charge 	fails 	to 	state a prima 	facie 	case 	for the reasons
that follow. 	First, 	PERB Regulation 32615(a)(5) 	(California Code
of Regulations, 	title 8, 	section 32615(a)(5) 	requires that a
charge 	contain a 	"clear and concise 	statement of 	the 	facts 	and
conduct 	alleged 	to 	constitute 	an unfair practice."
You 	have generally 	alleged 	that 	the 	exclusive 	representative
denied 	you 	the 	right to 	fair representation in dealing with your
employer, 	and thus violated Dills Act section 3519.5(b). 	You
have 	indicated a 	number of 	areas where you believe the
Association did 	a poor 	job 	in prosecuting 	your grievance 	before
and during 	the 	binding arbitration hearing on or about April 	26,2
1991.
The 	duty 	of 	fair 	representation 	imposed 	on the 	exclusive
representative 	extends 	to grievance 	handling. 	Fremont Teachers
Association 	(King) 	(1980) 	PERB Decision No. 	125; 	United Teachers
1I am 	treating your 	case as 	one 	alleging 	a 	violation of 	the
union's 	duty of 	fair representation 	(DFR) 	in violation of
Government Code 	section 3519.5(b).
2The grievance was 	filed after your employer, 	the Board of
Prison Terms, 	reassigned your headquarters 	in July 	1990 	from your
residence, 	to a prison 240 miles 	from your residence. 	You
believed that 	this 	action was 	made 	for 	the purpose 	of 	harassing
or disciplining you 	in violation of Article XIII, 	section 	14 	of
the 	Collective 	Bargaining Agreement 	(Agreement) 	between the
Association and the 	State of California, 	effective January 	30,
1989 through June 30, 	1991.

Warning 	Letter
LA-CO-45-S
February 18, 	1992
Page 2
of Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258. 	In order
to 	state 	a prima 	facie violation of 	this 	section of 	the 	Dills
Act, 	Charging Party must 	show that 	the Association's 	conduct was
arbitrary, 	discriminatory, 	or in bad faith. 	In United Teachers
of Los Angeles 	(Collins). 	Id., 	the Public Employment Relations
Board(PERB) 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a 	grievance does 	not
constitute a breach of the union's duty.
A union may 	exercise 	its 	discretion to
determine how far to pursue a grievance on
the 	employee's behalf as 	long as 	it does 	not
arbitrarily 	ignore 	a meritorious 	grievance 	or
process 	a grievance 	in a perfunctory fashion.
A union 	is 	also 	not required to process 	an
employee's 	grievance 	if 	the 	chances 	for
success are minimal.
In order to 	state 	a prima 	facie 	case 	of 	arbitrary 	conduct
violating 	the duty of 	fair representation, 	a Charging 	Party:
. 	. 	. must, at a minimum, include an
assertion of 	sufficient 	facts 	from which 	it
becomes 	apparent how or 	in what manner the
exclusive 	representative's 	action or 	inaction
was without a 	rational 	basis 	or devoid 	of
honest 	judgment. 	Reed 	District 	Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
The Association 	also denied a 	number of 	your requests 	or
suggestions. 	You have 	not provided 	a 	clear and 	concise 	statement
showing how, 	or in what manner your representative, 	John Sikora's
actions 	or 	inactions were without a rational basis, 	devoid of
honest 	judgment, 	discriminatory or 	in bad 	faith. 	You have not
cited any union rule, 	contract 	section, 	or any other 	legal
authority which 	your 	representative 	clearly violated.3 Even 	if
3You allege, 	in part, 	that two days prior to the April 	26,
1991 	hearing, 	your representative, 	John Sikora refused to allow

Warning 	Letter
LA-CO-45-S
February 	18, 	1992
Page 3
the Association's 	conduct was 	improper/negligent, 	negligence 	is
not 	enough 	to 	violate 	the duty of 	fair 	representation.4
you 	to 	represent 	yourself, 	or allow your 	own attorney 	to
represent you. 	Article VII, 	section 	12.a. 	gives 	the Association
the 	right 	to 	submit 	the grievance 	to arbitration. 	It does 	not
indicate 	that 	a 	grievant may 	appear 	in pro 	per or with his 	own
counsel. 	Thus, 	Mr. 	Sikora's 	response to your request does 	not
appear 	to 	be 	improper.
Second, 	the 	Dills 	Act does 	not 	allow a 	complaint 	to 	issue
regarding 	a 	charge 	based upon an 	alleged 	unfair practice
occurring 	more 	that 	six 	months 	prior to 	the 	filing of 	the 	charge.
Government Code 	section 3514.5(a). 	It 	is 	the charging party's
burden, 	as part of 	the prima 	facie case, 	to prove the charge was
timely 	filed. 	Furthermore, 	there 	is 	no 	longer any equitable
tolling of 	the 	six months 	limitations 	period. 	The 	Regents 	of the
University of California 	(1990) 	PERB Decision No. 	826-H. 	This
charge was 	filed on November 6, 	1991. 	Therefore, 	we may only
consider 	alleged 	unlawful 	conduct 	of 	the 	union occurring 	after 	on
or about May 6, 	1991. 	Thus, 	all allegations of unlawful conduct
by 	the Association occurring before 	this 	date, 	including 	conduct
at, 	or before, 	an arbitration hearing in or about April 	1991, 	are
untimely and will be dismissed. 	On February 	14, 	1992, 	you
advised me, 	in part, 	that you did not 	receive 	the 	arbitrator's
written decision, 	denying your grievance until July 	1991. 	At
that time, 	you 	learned that the union breached 	its 	duty. 	It 	is
arguable 	that 	you 	knew or 	should 	have 	known of 	the 	union's
alleged unlawful 	conduct at, 	or before, 	the hearing 	in or about
April 	1991. 	The 	statute does 	not begin to 	run 	later on in July
1991 	when you 	received 	the 	arbitrator's 	decision. 	See
International 	Union of Operating Engineers. 	Local 	501 	(Reich)
(1986) 	PERB Decision No 	591-H.
For these reasons, 	as 	I 	indicated to you on February 	18, 	1992,
the 	charge 	as 	presently written does 	not 	state 	a 	prima 	facie
4In 	some 	additional 	information you 	sent 	to 	me dated
February 	2, 	1992, 	you indicated 	in part, 	"How do represent 	(sic)
someone 	if 	you 	refuse to discuss 	the 	complaint with 	them or 	allow
them to 	be 	present when you 	meet 	to 	resolve 	the 	complaint? 	Other
employees were present, 	but not me." 	If you are contending that
you were 	treated by the 	union 	in a disparate manner, 	compared to
other 	employees, 	you must provide 	facts 	to 	show that their
circumstances were 	identical 	to yours, 	and 	facts 	showing who was
involved, 	what happened, 	when it happened, 	and where the
discriminatory 	conduct 	took place.

Warning 	Letter
LA-CO-45-S
February 	18, 	1992
Page 	4
case. 	If 	there are any 	factual 	inaccuracies 	in this 	letter or
any 	additional 	facts 	that 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 must
-be 	signed 	under penalty of perjury by the 	charging party. 	The
amended 	charge must be 	served 	on the 	respondent5 and 	the 	original
proof of 	service must be 	filed with PERB. 	If 	I 	do not receive an
amended charge or withdrawal 	from you before February 25, 	1992, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
5Ernest F. 	Schulzke, 	Esq., 	Association of California State
Attorneys 	and Administrative Law Judges, 	660 J Street, 	Suite 	480,
Sacramento, 	CA 95814.