Monterey Peninsula Community College District (PERB 1449E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL WAYMIRE,
Charging Party, Case No. SF-CE-2177-E

V. PERB Decision No. 1449

MONTEREY PENINSULA COMMUNITY June 25, 2001

COLLEGE DISTRICT,

Respondent.

Appearance: Michael Waymire, on his own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Michael Waymire (Waymire) of a Board agent's dismissal (attached) of his unfair
practice charge.

The charge alleged that the Monterey Peninsula Community College District (District)
violated section 3543.5 of the Educational Employment Relations Act (EERA)! by improperly

calculating his holiday pay and other acts of discrimination.

' EERA is codified at Government Code section 3540 et seq. Section 3543.5 states:

It shall be unlawful for a public school 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 employees because
of their exercise of rights guaranteed by this chapter. For

After reviewing the entire record in this case, including the original and amended unfair
practice charge, the dismissal and warning letters, Waymire's appeal and the District's
response, the Board finds the dismissal letter to be free from prejudicial error and adopts it as
the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-2177-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Whitehead joined in this Decision.
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by this
chapter.
(c) Refuse or fail to meet and negotiate in good faith with an exclusive
representative.
(d) Dominate or interfere with the formation or administration of any
employee organization, or contribute financial or other support to it, or in
any way encourage employees to join any organization in preference to
another.
(e) Refuse to participate in good faith in the impasse procedure set forth
in Article 9 (commencing with Section 3548).
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 27, 2001
Michael Waymire
Re: 	Michael Waymire v. Monterey Peninsula Community College District
Unfair Practice Charge No. SF-CE-2177-E
DISMISSAL LETTER
Dear Mr. Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 19, 2000. You allege that the Monterey Peninsula
Community College District (District) violated the Educational Employment Relations Act
(EERA)' by improperly calculating your holiday pay and other acts of discrimination. We
discussed your charge on January 31, 2001.
I indicated to you in my attached letter dated March 9, 2001, 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 March 16, 2001, the charge would be dismissed. You
requested and were granted an extension of time to amend your charge.
I received your amended charge on March 28, 2001. However, there were no facts which
cured the deficiency which I described in my letter of March 9". The actions taken by the
District, which you allege were discriminatory and violate your rights under EERA, occurred
outside the six month statutory limitations period. As set forth in my letter of March 9, the
EERA prohibits PERB from issuing a complaint "based on an alleged unfair practice occurring
more than six months prior to the filing of the charge". (Gov. Code section 3541.5(a)(1)).
Because your charge is untimely, it must be dismissed.
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
You have also alleged discrimination based on sex, religion and several other
prohibited bases. This agency has no jurisdiction to assist you in those matters. The
appropriate state agency which addresses such an allegation is the California Department of
Fair Employment and Housing.

SF-CE-2177-E
April 27, 2001
Page 2
In your amended charge, you state that, in my letter of March 9" (regarding SF-CO-580-E), I
incorrectly stated that you had requested that PERB reopen your former unfair practice charge,
SF-CO-522-E. Please be aware that the error was inadvertent and I apologize for any
confusion which may have resulted.
You have also stated a request to have your case taken to a civil court outside the county of
Monterey and state of California. PERB cannot provide you with advice or assistance with
that request and can only suggest that you seek the assistance of a qualified attorney.
Right to Appeal
Pursuant to PERB 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. (Regulation 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.
Regulations 32135(a) and 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 32635(b).)
Service
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2177-E
April 27, 2001
Page 3
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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 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. (Regulation 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
By
Bernard McMonigle
Regional Attorney
Attachment
cc: Daniel A. Osher
BMC

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
March 9, 2001
Michael Waymire
Re: 	Michael Waymire v. Monterey Peninsula Community College District
Unfair Practice Charge No. SF-CE-2177-E
WARNING LETTER
Dear Mr. Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 19, 2000. You allege that the Monterey Peninsula
Community College District (District) violated the Educational Employment Relations Act
(EERA)' by improperly calculating your holiday pay and other acts of discrimination. We
discussed your charge on January 31, 2001.
You allege that in 1993 the District engaged in prohibited business practices to provide
overtime free work schedule for a union officer. You also allege that from 1996 to 1998
District officials engaged in various acts of reprisal against you including denial of a transfer
request, assigning you an improper work schedule, failing to properly accommodate a
disability and giving union representatives unauthorized access to your personnel file.
Your charge also states that in 1996 you filed grievances regarding eight contract violations.
Between 1996 and 1998 you received settlement offers which you rejected. In July of 1998
negotiations over your grievances were postponed at the request of your doctor. On August 8,
2000 your doctor wrote to the District and stated that you could continue negotiations.
Based on the above information it appears that PERB lacks jurisdiction over your charge
because it is untimely.
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
You have also alleged discrimination based on sex. This agency has no jurisdiction
over sexual discrimination allegations. The appropriate state agency to address such an
allegation is the California Department of Fair Employment and Housing.

SF-CE-2177-E
March 9, 2001
Page 2
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden of demonstrating that
the charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No.
1024; State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
You have requested that the statutory limitation period be waived based on the District and
your union operating outside the grievance rules between 9/96 and 1/98, the District taking 6
months to make a settlement offer to you in 1998, and what you consider poor legal
representation by your attornies. However, I am aware of no legal authority or case law to
support such waiver of the statutory time limitation. Accordingly, your charge 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 March 16, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC