University of California, Los Angeles (Wack) (PERB 0961H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CASEY WACK,
Charging 	Party,
v.
UNIVERSITY 	OF 	CALIFORNIA,
LOS ANGELES,
Respondent.
Case No. 	LA-CE-307-H
PERB Decision No. 	961-H
November 24, 	1992
Appearances: 	Casey Wack, 	on his own behalf; 	Regents of the
University of California by Claudia Cate, 	University Counsel, 	for
University of California, 	Los Angeles.
Before Hesse, 	Chairperson; 	Camilli and Caffrey, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on an appeal 	filed by
charging party, 	Casey Wack 	(Wack), 	to the Board agent's dismissal
(attached hereto) 	of his unfair practice charge. 	The unfair
practice 	charge 	alleged that 	the University of 	California, 	Los
Angeles 	(University) 	retaliated against Wack in violation of
section 	3571 	of 	the 	Higher 	Education Employer-Employee 	Relations
Act 	(HEERA).1
HEERA	1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for 	the 	higher education
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
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________________ )

Wack filed a timely appeal 	of 	the Board agent's 	dismissal 	of
his unfair practice charge, 	wherein he reasserts 	that his
"wrongful 	layoff" 	occurred within 	six months 	of 	his 	filing of 	the
unfair practice 	charge.
On August 	17, 	1992, 	the University requested permission to
submit a 	late 	filing of a response to Wack's appeal. 	The
University 	submits 	that 	good 	cause 	exists 	to 	justify 	the 	late
filing in this matter. 	The appeal was 	date-stamped 	in the
University's office on July 	17, 	1992, 	but was not docketed or
calendared pursuant 	to 	office procedures.
The 	University also 	asserts 	that Wack's document was 	not
easily 	identifiable 	as 	an appeal. 	Specifically, 	Wack addressed
the 	letter to both the regional 	attorney 	and PERB 	Board Members.
Neither 	the 	cover 	letter 	nor 	the 	amended unfair practice
charge attached to the cover letter include a 	case number, 	an
omission 	that 	supports 	the 	University's 	initial 	conclusion that
Wack had 	filed an amended unfair practice 	charge, 	or possibly
even a new unfair practice 	charge.
The 	Board has 	reviewed the dismissal, 	and 	finding 	it to be
free of prejudicial 	error, 	adopts 	it as 	the decision of the Board
itself 	consistent with the 	following discussion.
employees 	because 	of 	their 	exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
N	
2

DISCUSSION
Pursuant 	to 	PERB Regulation 	section 	32136,2 the 	Board may
excuse a 	late 	filing 	for good 	cause only. 	In previous 	decisions,
the Board has 	excused 	certain 	clerical 	errors where there was 	no
prejudice to 	the opposing party. 	(See Trustees 	of 	the California
State University 	(1989) 	PERB Order No. 	Ad-192-H; 	The Regents 	of
the University of California 	(Davis, 	Los Angeles. 	Santa Barbara
and San Diego) 	(1989) 	PERB Order No. 	Ad-202-H; 	North Orange
County Regional 	Occupational 	Program 	(1990) 	PERB 	Decision
No. 	807; 	and Los Angeles Unified School District 	(1991) 	PERB
Decision No. 	874.)
Due to an inadvertent 	clerical 	error, 	Wack's 	appeal was 	not
processed by 	the 	University 	in 	accordance with 	its 	normal 	office
procedures 	resulting 	in the 	late 	filing of 	the University's
response. 	Further, 	as 	the Board had not ruled on Wack's 	appeal
prior to receiving the University's response, 	there 	is 	no
prejudice 	to Wack 	in accepting 	and 	considering 	the 	University's
response. 	This 	is 	supported by the 	fact that PERB regulations 	do
not provide 	for a reply to a party's 	response to an appeal. 	(See
PERB 	Regulation 	section 	32635.) 	In accordance with PERB
Regulation 	32136, 	the Board 	finds 	that good cause exists 	to
2PERB 	regulations 	are 	codified at California Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32136 provides:
A 	late 	filing may be 	excused 	in 	the
discretion of 	the Board 	for good 	cause 	only.
A 	late 	filing which has 	been excused becomes
a 	timely 	filing under 	these 	regulations.
W	
3

excuse 	the 	late 	filing, 	and accepts 	the University's 	response.
With regard to 	the merits 	of 	the 	Board agent's 	dismissal,
the 	Board affirms 	the Board agent's 	dismissal 	of 	the unfair
practice 	charge 	based on untimeliness. 	HEERA 	section 	3563.2(a)
states 	that PERB 	"shall 	not 	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." 	This 	six month
statue of 	limitations 	begins 	to 	run on the date 	the 	charging
party has 	notice of 	the 	respondent's 	intent 	to 	implement 	an
alleged unfair practice. 	(See Regents 	of 	the University of
California 	(1990) 	PERB Decision No. 	826-H and Los Angeles 	Unified
School District 	(1991) 	PERB Decision No. 	894.) 	In the present
case, 	Wack had notice on May 	9, 	1991 	of the University's 	intent
to 	lay him off on November 9, 	1991. 	However, 	Wack did not 	file
his 	charge until January 21, 	1992, 	which was more than six months
later. 	The unfair practice charge 	is 	barred by the 	six-month
statute of 	limitations. 	Accordingly, 	his appeal 	is denied.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-307-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Caffrey 	joined 	in this 	Decision.
A	4

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
June 25, 	1992
Casey 	Wack
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-307-H, 	Casey Wack v. 	University 	of
California. 	Los Angeles
Dear Mr. 	Wack:
I 	indicated to you in my attached letter dated May 28, 	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 amend the 	charge 	to 	state 	a prima
facie case, 	or withdrew it prior, to June 8, 	1992, 	the charge
would 	be 	dismissed.
On June 8, 	1992, 	you filed an amended charge. 	Nothing in the
amended charge, 	however, 	alters the conclusion in my May 28
letter that you had notice on May 9, 	1991, 	of the University's
intent to 	lay you off. 	There is 	no allegation of a 	later
indication of a wavering of that 	intent. 	The charge 	should
therefore have been filed within six months 	of May 9, 	1991, 	but
it was 	not. 	I 	am therefore dismissing the 	charge, 	based on the
facts 	and 	reasons 	contained 	in my May 	28 	letter.
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	certain 	allegations
contained 	in the charge by 	filing an appeal 	to the 	Board 	itself
within twenty 	(20) 	calendar days 	after 	service of 	this 	dismissal
(California Code of Regulations, 	title 8, 	section 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 Administrative Code, 	title 8, 	section 32135).
Code of Civil 	Procedure 	section 	1013 	shall 	apply. 	The 	Board's
address is:

Dismissal 	Letter
LA-CE-307-H
Page 2
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
Regulations, title 8, 	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 	of 	filed
with the 	Board 	itself. 	(See California Code of Regulations,
title 	8, 	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 	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
Regulations, title 8, 	section 32132).

Dismissal 	Letter
LA-CE-307-H
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 	Counsel
By_Thomarg allaThomas 	J.Allen
Regional Attorney
TJA:lgf
Attachment
cc: 	Claudia Cate

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
PERS
May 28, 	1992
Casey 	Wack
Re: 	WARNING LETTER 	(Statute of Limitations), 	Unfair Practice
Charge No. 	LA-CE-307-H, 	Casey Wack v. 	University of
California. 	Los Angeles
Dear Mr. 	Wack:
In the above-referenced charge, 	you allege 	that the 	University of
California, 	Los Angeles 	(University) 	retaliated against you, 	in
alleged violation of Government Code 	section 3571 	of 	the 	Higher
Education Employer-Employee Relations Act 	(HEERA).
My 	investigation of 	the 	charge reveals 	the 	following 	facts.
In November 	1991, 	the 	University allegedly 	laid you 	off 	from your
employment 	at the White Mountain Research 	Station. 	You 	allege
that 	this was 	in retaliation 	for your previous 	involvement 	in
grievances 	filed 	against 	the 	University.
On May 9, 	1991, 	you had signed 	"under protest" 	a Personnel Action
Form which 	specified that your appointment was 	as 	a 	"casual"
employee 	and would end on November 	9, 	1991. 	It 	appears 	that your
layoff 	in November 	1991 	was 	pursuant 	to the 	appointment 	specified
in 	the 	Personnel Action Form.
The charge was 	filed on January 21, 	1992.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie 	violation of 	the 	HEERA within 	the 	jurisdiction of 	the
Public Employment Relations Board 	(PERB), 	for the reasons 	that
follow.
Government Code 	section 	3563.2(a) 	of 	the 	HEERA 	states 	that PERB
"shall 	not 	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." 	This 	six-month 	statute 	of
limitations 	begins 	to 	run on the date 	the 	charging party has
notice 	of 	the 	respondent's 	intent 	to 	implement 	an 	alleged 	unfair
practice. 	Regents 	of the University of California 	(1990) 	PERB
Decision No. 	826-H. 	See also Los Angeles 	Unified School 	District
(1991) 	PERB Decision No. 	894. 	In the present case, 	it appears
that you had notice on May 	9, 	1991, 	of the University's 	intent to

Warning 	Letter
LA-CE-307-H
May 28, 	1992
Page 	2
lay you off on November 	9, 	1991, 	but you 	filed your charge more
than six months 	after May 	9, 	1991.
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 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 	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
June 8, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. all
THOMAS J. 	ALLEN
Regional 	Attorney