Union of American Physicians and Dentists (Schuman) (PERB 1372S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HAROLD R. 	SCHUMAN,
Charging 	Party,
v.
UNION 	OF 	AMERICAN 	PHYSICIANS
AND 	DENTISTS,
Respondent.
)
)
) 	Case No. 	LA-CO-86-S
PERB Decision No. 	1372-S
February 17, 	2000
)
)
)
)
)
)
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Appearance; 	Harold R. 	Schuman, 	on his 	own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes 	before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on appeal 	from a 	Board agent's 	dismissal
(attached) 	of Harold R. 	Schuman's 	(Schuman) 	unfair practice
charge. 	Schuman's 	charge 	alleges 	that 	the Union of American
Physicians 	and Dentists 	breached 	its 	duty 	of 	fair 	representation,
in violation 	of 	section 	3519.5 	of 	the 	Ralph C. 	Dills Act 	(Dills
A c t ) , 1 by 	deducting union 	dues 	from his 	paycheck after 	he 	became
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519.5 	provides:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
(a) 	Cause 	or attempt 	to 	cause 	the 	state 	to
violate 	Section 	3519.
(b) 	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.

a 	part-time 	retired 	annuitant.
(c) 	Refuse or fail 	to meet and confer in good
faith with a 	state 	agency employer of 	any of
the employees 	of which it 	is 	the 	recognized
employee 	organization.
(d) 	Refuse 	to participate 	in good faith in
the mediation procedure 	set 	forth 	in Section
3518.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	and Schuman's appeal. 	The Board finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-86-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
22

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
October 8, 	1999
Harold R. 	Schuman
Re: 	DISMISSAL 	OF 	CHARGE/REFUSAL TO 	ISSUE 	COMPLAINT
Harold R. 	Schuman v. 	Union of American Physicians 	and
Dentists
Unfair Practice 	Charge No. 	LA-C0-86-S; 	First Amended Charge
Dear Dr. 	Schuman:
The above-referenced unfair practice charge, 	filed June 	29, 	1999,
alleges 	the 	Union of American 	Physicians 	and Dentists 	(UAPD)
breached 	its 	duty of 	fair 	representation by deducting 	union dues
from Charging 	Party's 	paycheck. 	Charging 	Party 	alleges 	this
conduct 	violates 	Government 	Code 	section 	3 517.5 	of 	the 	Ralph C.
Dills Act 	(Dills Act or Act) .
I 	indicated 	to you, 	in my attached letter dated 	September 28,
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. 	I 	later extended
this deadline 	to October 12, 	1999.
On October 5, 	1999, 	I 	received a 	first 	amended charge via
facsimile. 	The 	first 	amended 	charge 	adds 	the 	following 	facts.
Charging 	Party asserts 	his 	membership 	in UAPD 	ended 	in March
1993, 	when he 	ceased working as 	a 	full-time 	Physician. 	Facts
provided 	demonstrate 	UAPD 	deducted 	membership 	dues 	from 	Charging
Party's 	Retired Annuitant 	paycheck 	from 	1993 	through June 	1998.
On August 	10, 	1998, 	Charging Party wrote a letter to UAPD
President, 	Robert L. 	Weinmann, 	requesting a refund on membership
dues 	from 	1993 	to 	1998. 	Mr. 	Weinmann failed to 	respond to 	this
letter. 	After consulting with 	an attorney, 	Charging 	Party 	filed
a claim in Small 	Claims 	Court, 	alleging a violation of 	the duty
of 	fair representation. 	In April 	1999, 	the 	claim was dismissed

Dismissal 	Letter
LA-CO-86-S
Page 2
as 	the 	court 	lacked 	jurisdiction over violations 	of 	the 	duty of
fair representation. 	It 	was 	at 	this 	time 	that 	Charging Party-
learned of 	PERB's 	exclusive 	jurisdiction over 	the 	matter.
Based on 	the 	above-stated 	facts, 	and 	those 	provided 	in 	the
original 	charge, 	the 	charge 	still 	fails 	to 	state 	a prima 	facie
violation of 	the 	duty of 	fair 	representation.
Government 	Code 	section 3514.5(a)(1) 	prohibits 	the 	Board 	from
issuing 	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. 	Charging 	Party alleges 	the UAPD
unlawfully deducted union dues 	from March 	1994 	through June 	1998.
As 	this 	charge was 	filed on June 	29, 	1999, 	more 	than a year after
the 	last 	deduction, 	the 	charge 	is 	untimely and must 	be 	dismissed.
Although not 	specifically stated, 	it 	appears 	Charging 	Party is
alleging 	the 	statute 	of 	limitations 	should be 	tolled, 	as 	he was
pursuing 	the 	claim in another venue. 	However, 	PERB does not
recognizes 	the 	doctrine 	of 	"equitable 	tolling," 	under which a
charging 	party will 	not 	be 	precluded 	from proceeding 	on 	an
untimely 	charge 	if 	he 	or 	she 	has 	pursued an 	alternative 	legal
remedy 	in good 	faith. 	(San Diego Unified 	School 	District 	(1991)
PERB Decision No. 	885.) 	Further, 	UAPD does not 	have any
obligation 	to 	notify an employee 	that 	a 	noncontractual 	remedy
exists, 	and as 	such, 	cannot be 	liable 	for 	failing to 	inform
Charging 	Party of 	PERB's 	jurisdiction prior 	to 	the 	filing 	in
Small 	Claims 	court. 	(University Council, 	AFT 	(Ninq-Ping Chan)
(1994) 	PERB Decision No. 	1062-H.) 	As such, 	the charge 	is time
barred 	and 	must 	be 	dismissed.
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.)

Dismissal 	Letter
LA-CO-86-S
Page 3
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 	(2 0) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code
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 Regs., 	tit. 	8,
sec. 	3214 0 	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. 	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

Dismissal 	Letter
LA-CO-86-S
Page 4
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
By Kristin L. 	Rosi
Regional 	Attorney
Attachment
cc: 	Gary Robinson

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
September 28, 	1999
Harold R. 	Schuman
Re: 	WARNING LETTER
Harold R. 	Schuman v. 	Union of American Physicians 	and
Dentists
Unfair 	Practice 	Charge No. 	LA-C0-86-S
Dear Dr. 	Schuman:
The above-referenced unfair practice charge, 	filed June 	29, 	1999,
alleges 	the 	Union of American 	Physicians 	and Dentists 	(UAPD)
breached 	its 	duty 	of 	fair 	representation by deducting 	union dues
from Charging 	Party's 	paycheck. 	Charging 	Party alleges 	this
conduct 	violates 	Government 	Code 	section 	3517.5 	of 	the 	Ralph C.
Dills Act 	(Dills Act or Act) .
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Charging
Party is 	employed by the 	State 	of 	California, 	Department 	of
Social 	Services 	(State) 	as 	a 	Part-time Retired Annuitant. 	More
specifically, 	Charging 	Party 	retired 	from State 	service 	in
December 	1993, 	and returned 	immediately to work 	as 	a 	Part-time
Annuitant. 	As 	an Physician with the 	State, 	Charging 	Party is
exclusively 	represented by 	the 	UAPD.
In March 	1994, 	Charging 	Party received his 	first 	paycheck as 	a
Retired Annuitant, 	and noticed 	that 	UAPD dues 	had been deducted.
Charging 	Party 	immediately 	telephoned 	the 	UAPD 	office 	and was
informed by UAPD 	representative 	Joe Bader, 	that 	union dues 	were 	a
mandatory deduction 	for union members.
From March 	1994, 	through June 	1998, 	UAPD dues 	were 	deducted 	from
Charging 	Party's paycheck. 	In June 	1998, 	Charging 	Party resigned
his membership with UAPD, 	and 	thus 	dues 	could no 	longer be
deducted.
Based on the 	above 	stated 	facts, 	the 	charge 	as 	presently written
fails 	to 	state 	a prima 	facie violation of 	the Dills Act, 	for the
reasons 	provided 	below.
Government 	Code 	section 	3514.5(a)(1) 	prohibits 	the 	Board 	from
issuing 	a 	complaint 	in respect 	of 	any charge 	based upon 	an

Warning 	Letter
LA-C0-86-S
Page 2
alleged 	unfair 	practice 	occurring 	more 	than 	six months 	prior 	to
the 	filing 	of 	the 	charge. 	Charging 	Party alleges 	the 	UAPD
unlawfully deducted union dues 	from March 	1994 	through June 	1998.
As 	this 	charge was 	filed on June 	29, 	1999, 	more 	than a year after
the 	last 	deduction, 	the 	charge 	is untimely and must 	be 	dismissed.
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,
Kristin L. 	Rosi
Regional 	Attorney