State of California (Department of Corrections) (PERB 1366S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VIVIENNE 	SCHMID 	(GUNTHER SCHMID,
DECEASED),
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SF-CE-207-S
PERB Decision No. 	1366-S
December 	17, 	1999
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Appearances: 	Cessaly D. 	Hutchinson for Vivienne 	Schmid 	(Gunther
Schmid, 	Deceased); 	State of California 	(Department of Personnel
Administration) 	by Wendi L. 	Ross, 	Labor Relations Counsel, 	for
State of 	California 	(Department of 	Corrections).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Vivienne 	Schmid
(Gunther Schmid, 	Deceased) 	(Schmid) 	to a Board agent's dismissal
(attached) 	of 	the unfair practice 	charge. 	The 	charge alleged
that 	the State 	of 	California 	(Department 	of 	Corrections) 	(State)
violated the Ralph C. 	Dills Act 	(Dills Act) 	section 3519(a)1 when
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Dills Act section 3519 	states, 	in part, 	that:
It 	shall 	be unlawful 	for 	the 	state 	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
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
)

it 	permitted 	settlement 	of 	Schmid's 	disability 	case 	just 	prior 	to
a change 	in the 	law that would have 	increased his benefits, 	in
retaliation 	for Schmid's protected 	conduct 	as 	a union 	steward.
applicant 	for 	employment 	or reemployment.
The 	Board agent 	found 	that 	the 	charge 	did not 	state 	a prima
facie 	case because 	of untimeliness.
The Board has 	reviewed the unfair practice 	charge, 	the
warning and dismissal 	letters, 	Schmid's appeal, 	and the State's
response. 	The Board 	finds 	that 	the warning and dismissal 	letters
are 	free 	of prejudicial 	error, 	and adopts 	them as 	the decision of
the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CE-207-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer joined 	in 	this 	Decision.
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
PERS
October 6, 	1999
Cessaly 	Hutchinson
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Gunther 	Schmid 	(Vivienne 	Schmid) 	v. 	State 	of 	California
(Department 	of 	Corrections)
Unfair 	Practice 	Charge No. 	SF-CE-207-S
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed on August 	24,
1999, 	alleges 	that 	the State of 	California 	(Department 	of
Corrections) 	retaliated 	against 	Gunther 	Schmid because 	of 	his
activities 	as 	a 	job 	steward 	for 	the 	California 	State 	Employees
Association 	(Association). 	This 	conduct 	is 	alleged to violate
Government 	Code 	section 3519(a) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
I 	indicated 	to you, 	in my attached 	letter dated 	September 27,
1999, 	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
October 5, 	1999, 	the 	charge would be dismissed.
Charging 	Party 	requested 	that 	certain 	additional 	factual
information be 	noted. 	Gunther 	Schmid 	retired 	shortly after
having 	successfully 	rebutted 	claims 	of 	misconduct 	lodged 	against
him by inmates. 	However, 	this 	fact 	is not 	shown to have 	any
bearing on the 	finding 	in this 	case 	that 	the 	charge was 	not
timely 	filed.
Charging 	Party 	also 	questions 	whether knowledge 	of 	the 	Dills Act
provisions 	can be 	imputed to him 	(Gunther 	Schmid) 	so 	as 	to 	render
the 	charge untimely. 	The dismissal 	of 	the 	charge 	due 	to 	lack of
timeliness 	is 	not 	based on 	imputing knowledge 	of 	the 	Dills Act 	to
Charging 	Party. 	Rather 	it 	is 	based on 	the 	construction of 	the
statute 	of 	limitations provisions 	of 	the 	Dills Act 	that 	results
in 	the 	conclusion that 	a 	charging party's 	lack of 	knowledge 	is
not 	an excuse 	to 	a 	late 	filing.
==========- 	--

Dismissal 	Letter
SF-CE-207-S
October 6, 	1999
Page 2
Based on 	the 	facts 	and reasons 	stated above 	as 	well 	as 	those 	set
forth in the 	September 27, 	1999 	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 Regs., 	tit. 	8,
sec. 	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. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 32135 (a); see also Cal. Code Regs., 	tit. 	8,
sec. 	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 Cal. 	Code Regs., 	tit. 	8, 	sec. 	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. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	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
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
Regs., 	tit. 	8, 	sec. 	32635(b).)

Dismissal 	Letter
SF-CE-207-S
October 6, 	1999
Page 3
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 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
prope'rly 	addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
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. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	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
DONN 	GINOZA
Regional 	Attorney
Attachment
cc: 	Wendi L. 	Ross

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(41 5) 439-6940
September 27, 	1999
Cessaly 	Hutchinson
Re: 	WARNING LETTER
Gunther 	Schmid 	(Vivienne 	Schmid) 	v. 	State of 	California
(Department 	of 	Corrections)
Unfair 	Practice 	Charge No. 	SF-CE-207-S
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed on August 	24,
1999, 	alleges 	that 	the State 	of 	California 	(Department 	of
Corrections) 	retaliated against 	Gunther 	Schmid because 	of 	his
activities 	as 	a 	job 	steward 	for 	the 	California 	State 	Employees
Association 	(Association). 	This 	conduct 	is 	alleged 	to violate
Government 	Code 	section 3519(a) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Gunther
Schmid was 	employed by the 	Department 	of 	Corrections 	in 	1982 	when
he 	retired on disability. 	Vivienne 	Schmid, 	Gunther's 	surviving
wife, 	is 	filing the 	charge 	in her personal 	capacity as 	successor-
in-interest 	to 	her 	deceased 	husband.
The 	charge 	alleges 	that 	the 	State 	Compensation 	Insurance 	Fund
settled Gunther's 	case 	just 	prior 	to 	a 	change 	in 	the 	law 	that
would have 	increased his 	benefits. 	Vivienne 	alleges 	that 	she
believes 	this 	was 	a deliberate 	action, 	taken in retaliation 	for
Gunther's 	activities 	as 	a 	steward 	in the Association.
In 	seeking 	to 	explain why 	she 	waited 	seventeen years 	after 	the
events 	in question 	to 	file 	the 	instant 	unfair practice 	charge,
Vivienne 	Schmid has 	stated 	that 	she 	did not 	learn 	of 	the
existence 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB) 	until
the week before 	she 	filed.
Based on 	the 	facts 	stated above, 	the 	charge 	as presently written
fails 	to 	state 	a prima 	facie violation of 	the Dills 	Act 	for 	the
reasons 	that 	follow.
An unfair practice 	must 	be 	filed with 	PERB within 	six months 	of
its occurrence. 	(Gov. 	Code, 	sec. 	3514.5(a).) 	PERB has held that
the 	six-month period commences 	once 	the 	charging party knows, 	or
should have 	known, 	of 	the conduct underlying the 	charge.
(Fairfield-Suisun Unified 	School 	District 	(1985) 	PERB 	Decision
-_-_-_-_- 	--

Warning 	Letter
SF-CE-207-S
September 27, 	1999
Page 2
No. 	547; 	Regents of 	the University of California 	(1983) 	PERB
Decision No. 	359-H.) 	This 	statute of 	limitations 	is
jurisdictional. 	The 	charging party's 	lack of 	knowledge 	of 	PERB,
the 	statutes 	enforced by PERB, 	or charging party's 	rights 	under
those 	statutes 	does 	not 	excuse 	a 	late 	filing. 	(Orange 	Unified
Education Association 	(Rossman) 	(1999) 	PERB Decision No. 	1307;
California State University, 	San Diego. 	(1989) 	PERB Decision No.
718-H.) 	PERB 	has 	held that 	a 	charging party's 	belated discovery
of 	the 	legal 	significance 	of 	the 	conduct 	underlying 	the 	charge
also 	does 	not 	excuse 	an otherwise untimely 	filing. 	(UCLA Labor
Relations Division 	(1989) 	PERB Decision No. 	735-H.) 	The 	instant
charge was 	not 	filed within 	six months 	of 	the 	date 	Charging 	Party
knew or 	should have 	known of 	the 	conduct 	underlying 	the 	charge
and 	is 	therefore 	untimely.
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 corner 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 October 	5, 	1999, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney