University of California (American Federation of State, County and Municipal Employees) (PERB 1023H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 	3212,
Charging 	Party,
v.
UNIVERSITY OF 	CALIFORNIA,
Respondent.
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) 	Case No. 	SF-CE-381-H
PERB Decision No. 	1023-H
November 	3, 	1993
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Appearance; 	Ernest Haberkern, 	Grievance Representative, 	for
American Federation of State, 	County and Municipal 	Employees,
Local 3212.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the American Federation of
State, 	County and Municipal Employees, 	Local 	3212 	(AFSCME) 	of a
Board agent's dismissal 	(attached) 	of 	its unfair practice 	charge.
The 	charge alleged that Martin Lipow 	(Lipow), 	a projectionist 	for
the University of 	California 	(UC) 	at Berkeley, 	was 	terminated in
retaliation 	for 	filing an appeal 	of 	his 	reclassification as 	an
independent 	contractor. 	The Board agent 	dismissed 	the 	charge 	as
being 	untimely.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case 	and
finds 	the Board agent's 	dismissal 	to be 	free 	of prejudicial 	error
and adopts 	it 	as 	the 	decision of 	the Board 	itself 	consistent 	with
the 	following discussion.
e

DISCUSSION
On appeal, 	AFSCME argues 	that 	the 	limitations period began
to run on March 30, 	1993, 	when the UC chancellor approved Lipow's
reclassification, 	not when he 	received the 	termination letter on
December 7, 	1992.
Section 3541.5(a)(1) 	of 	the Higher Education Employer-
Employee 	Relations Act 	(HEERA)1 sets 	forth 	the 	six-month
statutory 	limitation period 	for unfair practice 	charges. 	The
statutory period begins 	to 	run 	once 	the 	charging party knows,
or should have known, 	of 	the 	conduct underlying the 	charge.
(Regents 	of 	the University of 	California 	(Alderson) 	(1993) 	PERB
Decision No. 	1002-H, 	citing Fairfield-Suisun Unified School
District 	(1985) 	PERB Decision No. 	547 and Healdsburg Union High
School District 	(1984) 	PERB Decision No. 	467.)
In unfair labor practice 	cases, 	PERB only has 	jurisdiction
for the 	limited period of 	six months. 	If a charge 	is 	filed late,
PERB 	completely lacks 	jurisdiction over the matter. 	(The Regents
of 	the University of 	California 	(UC-AFT) 	(1990) 	PERB Decision
No. 	826-H.)
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
HEERA section 3541.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization,
or employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	do 	. . . 	the 	following:
(1) 	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.
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In the 	instant 	case, 	Lipow was 	clearly 	informed on
December 7, 	1992, 	that he was being terminated. 	The chancellor's
subsequent 	approval 	of his 	reclassification does 	not 	serve 	to
delay the beginning of 	the 	limitations period. 	Therefore, 	the
charge, 	which was 	filed on June 11, 	1993, 	was untimely filed.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-381-H is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Caffrey and Garcia 	joined 	in this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
August 12, 	1993
Ernest 	Haberkern
American Federation of 	State, 	County and Municipal 	Employees
545-A 	Lexington Avenue
El 	Cerrito, 	California 	94530
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
American Federation of 	State. 	County and Municipal 	Employees
v. 	Regents 	of 	the University of 	California
Unfair Practice Charge No. 	SF-CE-381-H
Dear Mr. 	Haberkern:
The above-referenced unfair practice 	charge, 	filed on
June 11, 	1993, 	alleges that the Regents of 	the University of
California 	(University) 	terminated Martin Lipow 	in 	retaliation
for his 	filing an appeal 	of 	his 	reclassification. 	This 	conduct
is alleged to violate Government 	Code 	section 3571(a) 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated July 30, 	1993,
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
August 	9, 	1993, 	the 	charge would be dismissed.
On August 9, 	1993, 	an amended charge was 	filed. 	The amended
charge 	contains 	the 	following new allegations. 	On
October 	9, 	1992, 	Martin Lipow was 	informed by Laurie Kossof 	that
he was 	being 	separated 	from University employment. 	Lipow had
been 	separated 	"automatically by what 	he was 	led 	to believe was 	a
computer error" 	on 	three previous 	occasions and when 	informed of
this 	by Kossof 	had appealed her action 	to her 	superiors 	and
prevailed 	in being 	reinstated on each occasion. 	Likewise, 	Lipow
appealed 	the 	October 9 	separation 	to 	Stephen Gong and 	then 	to 	the
Chancellor's Office. 	On December 7, 	1992, 	Lipow received the
letter 	from Kossof, 	noted 	in the original 	charge, 	wherein she
stated, 	ostensibly 	in reply to his 	grievance 	concerning
reclassification, 	that he was no longer an employee 	of 	the
University 	in any 	capacity. 	Lipow then 	filed a 	grievance 	on
December 13, 	1992 	challenging Kossof's December 7, 	1992 	letter,
which 	the 	original 	charge 	notes 	was 	rejected as 	untimely because,
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Dismissal, etc.
SF-CE-381-H
August 12, 	1993
Page 	2
in the University's 	opinion, 	Lipow's 	reclassification to an
independent 	contractor 	in October 	1992 	severed his 	employment
relationship and 	thus 	required him to 	file within a 	30-day 	time
limit. 	The amended charge alleges 	that University 	factfinder,
Gail Ward, 	failed to explain in her March 8, 	1993 	decision how
circumstances 	had differed 	from the previous 	three 	occasions 	when
Lipow had prevailed 	in getting 	Kossof 	to 	rehire 	him.
It 	is 	concluded that 	these 	facts 	are 	insufficient 	to 	state a
prima 	facie violation of 	retaliation because 	they do not 	serve 	to
establish a 	different 	and 	later date 	for 	calculating 	the 	running
of 	the six-month statute of 	limitations. 	Assuming, 	arguendo,
that 	the 	circumstances 	of 	the previous 	three 	"computer error"
situations 	were 	similar 	to 	the 	circumstances 	of 	Kossof's
December 7, 	1992 	action to terminate Lipow 	-- 	and it 	is doubtful
that 	such facts have been alleged,1 -'- 	Lipow became aware 	of 	the
alleged retaliatory act 	of 	Kossof's 	on December 7, 	1992.
According to the amended charge, 	in the previous 	cases 	it was not
Kossof 	who 	rescinded her decision, 	rather 	it was 	her superiors 	as
a result of 	the appeal process. 	Therefore, 	Kossof's act 	of
retaliation on December 	7, 	1992 	was unequivocally communicated 	to
Lipow at 	that 	time. 	There 	is 	no 	legal 	authority 	for the
proposition 	that 	the date 	on which an employee's 	appeals 	of 	an
adverse 	action are exhausted 	-- 	even assuming he believes 	he
will 	prevail 	-- 	establishes 	the date 	for the running of 	the
statute 	of 	limitations. 	Since 	the 	charge was 	not 	filed within
six months of December 7, 	1992, 	the charge is untimely.
Based 	on 	the 	foregoing 	facts 	and 	reasons 	as well 	as 	those
contained in my July 30, 	1993 	letter, 	I am dismissing 	the 	charge.
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. 	(Cal. 	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
1 For example, 	the amended charge alleges 	that 	Kossof
informed on October 9, 	1992 	that 	he had been 	"automatically
separated." 	However, 	the 	letter of December 7, 	1992 	from Kossof,
"ostensibly 	in 	reply 	to his 	grievance 	concerning 	his
reclassification," 	is not alleged to have been 	"automatic" 	in
nature or to have suggested any 	"computer error. "

Dismissal, etc.
SF-CE-381-H
August 12, 	1993
Page 3
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	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 	(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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
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Dismissal, etc.
SF-CE-381-H
August 12, 1993
Page 4
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By DONN GINOZD	AAJ
Regional Attorney
Attachment
cc: 	Dennis Marino
Leslie Van Houten
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
July 30, 	1993
Ernest 	Haberkern
American Federation of 	State, 	County and Municipal 	Employees
545-A 	Lexington 	Avenue
El 	Cerrito, 	California 	94530
Re: 	WARNIN
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G LETTER
American Federation of 	State. 	County and Municipal 	Employees
v. 	Regents 	o---~-f 	the University of Californi- a
Unfair Practice Charge No. 	SF-CE-381-H
Dear Mr. 	Haberkern:
The 	above-referenced unfair practice 	charge, 	filed on
June 11, 	1993, 	alleges 	that the Regents of the University of
California 	(University) 	terminated Martin Lipow 	in 	retaliation
for his 	filing an appeal 	of 	his 	reclassification. 	This 	conduct
is 	alleged to violate Government 	Code 	section 3571(a) 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA).
Investigation of 	the 	charge 	revealed the 	following. 	Martin Lipow
has 	been employed as 	a projectionist 	for 	over twenty years 	by 	the
Pacific 	Film Archive, 	a department within the University's
Berkeley campus. 	Prior to the 	enactment of 	the HEERA, 	Lipow had
been designated as 	a 	casual 	employee under 	the 	terms 	of 	a
collective 	bargaining 	agreement 	between 	the 	International
Alliance 	of 	Theatrical 	and Stage 	Employees 	and Moving 	Picture
Machine Operators, 	Local 	169. 	Following the passage of 	the
HEERA, 	the 	Public Employment 	Relations 	Board 	(PERB) 	established a
bargaining unit 	which 	included Lipow's 	classification. 	Elections
were 	held and 	the 	employees voted 	for no 	representation.
In October 1992, 	Lipow was 	informed by his 	supervisor, 	Stephen
Gong, 	that 	he would no 	longer be 	employed as a 	casual 	employee,
but 	rather as 	an 	independent 	contractor. 	Lipow 	filed an appeal
of this action on November 16, 	1992. 	On December 7, 	1992, 	Lipow
received a 	letter 	from Laurie 	Kossof, 	Personnel 	Analyst 	at 	the
University Art Museum, 	informing him that 	he was 	no 	longer an
employee 	of 	the University 	in any 	capacity.
Based on the 	facts 	stated above, 	the 	charge as presently written,
fails 	to 	state a prima 	facie violation of 	the HEERA for 	the
reasons 	that 	follow.
The 	charge 	is untimely. 	Government 	Code 	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." 	PERB has 	held
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Warning 	Letter
SF-CE-381-H
July 30, 	1993
Page 2
that 	the 	six month period 	commences 	to 	run when 	the 	charging
party knew or 	should have 	known of 	the 	conduct 	giving 	rise 	to 	the
alleged unfair practice. 	(Regents 	of 	the University of
California 	(1983) 	PERB Dec. 	No. 	359-H.) 	The charge was 	filed on
June 	11, 	1993. 	The 	charge alleges 	that 	Lipow received the 	letter
terminating 	his 	employment 	relationship with 	the 	University 	on
December 7, 	1992. 	Therefore, 	the 	charge was not 	filed within six
months 	of 	the 	date 	Lipow knew or 	should have 	known of 	the 	unfair
practice. 	(See U. 	S. 	Postal Service 	(1984) 	271 NLRB 61 	[116 LRRM
1417] 	[employee 	is 	in position to 	file unfair practice 	charge
when notice 	of 	adverse 	employment 	decision 	is 	communicated 	to
him] .)
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 	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 August 9, 	1993, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,	Sincerely,
DONN 	GINOZA
Regional 	Attorney
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