Palm Springs Unified School District (PERB 0888E)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HARRY 	CHRISTOPHER 	FIEGER,
Charging 	Party,
v.
PALM 	SPRINGS 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3042
PERB Decision No. 888
June 18, 	1991
Appearance: 	Harry Christopher Fieger, 	on his 	own behalf.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
. 	DECISION AND ORDER
CARLYLE, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by Harry Christopher Fieger of
a Board agent's dismissal, 	attached hereto, 	of his 	charge that
the 	Palm 	Springs 	Unified 	School 	District 	violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA).1
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
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 purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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We have reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt it as 	the decision of the Board 	itself,
The 	original 	and amended unfair practice 	charges 	in Case
No. 	LA-CE-3042 	are hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3S30 Wilshire Boulevard. Suite 650
lot Angeles. CA 90010-2334
(213) 736-3127
March 22, 	1991
R. 	A. 	Bender, 	Esq.
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-3042, 	Harry Christopher Fieger v. 	Palm
Springs 	Unified 	School 	District
Dear Mr. 	Bender:
I 	indicated to you 	in my attached 	letter dated March 	1, 	1991,
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
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew 	it
prior to March 	15, 	1991, 	the charge would be dismissed. 	I 	later
extended 	that 	deadline.
On March 20, 	1991, 	I 	received from Charging Party Fieger a First
Amended Charge. 	The 	amended 	charge 	emphasizes 	that 	the 	reason
the 	District 	gave 	for 	not 	promoting Charging 	Party was 	that 	he
had 	taped 	conversations 	with 	his 	supervisor without 	the
supervisor's 	knowledge or 	consent. 	The 	District 	told Charging
Party 	that 	such taping was 	illegal, 	and 	the 	Union 	told 	him 	the
same. 	All 	this 	took place on or before March 20, 	1990. 	On
October 25, 	1990, 	Charging Party 	saw a newspaper article that 	led
him 	to 	believe 	that 	such 	taping was 	actually 	legal.1 Charging
1The article may actually be 	somewhat misleading. 	It
attributes 	to 	a 	California 	Highway 	Patrol 	officer 	a 	statement
that 	"it 	is 	legal 	to tape 	record 	a 	conversation as 	long 	as 	one
person 	in the 	conversation 	knows 	it 	is 	being 	taped." 	Penal 	Code
section 632, 	however, 	makes 	it illegal 	to record a confidential
communication 	"without the 	consent of 	all parties" 	(emphasis
added). 	Courts have held that this 	means 	that 	even a party to a
confidential 	communication 	cannot 	record 	it without 	the 	knowledge
and consent of the other parties. 	See, 	e.g., 	Forest E. 	Olson.
Inc. 	v. 	Superior Court 	(1976) 	63 Cal.App.3d 	188 	[133 Cal.Rptr.
573]. 	Penal Code 	section 	633 	exempts 	California Highway Patrol
officers 	from 	section 	632.
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Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CE-3042
March 22, 	1991
Page 	2
Party 	filed 	charges 	against 	both 	the 	District 	and 	the 	Union 	on
November 21, 	1990.
Based on the 	facts 	stated above, 	the 	amended charge 	still does
not 	state a prima 	facie violation of 	the 	EERA within PERB's
jurisdiction, 	for the reasons that 	follow.
As 	noted in my March 	1 	letter, 	unfair practice charges 	are
subject to a 	six-month jurisdictional 	limitation. 	The 	six-month
period commences when a 	charging party discovers 	the 	conduct
constituting the unfair practice, 	not when he or 	she discovers
the 	legal 	significance of that 	conduct. 	California 	State
Employees' Association (1985) 	PERB Decision 546-S; 	Fairfield-
Suisun Unified School District 	(1985) 	PERB Decision No. 	547. 	If
it were otherwise, 	the limitation period could be 	endlessly
extended, 	so long as a charging party 	failed to consult an
attorney or otherwise remained 	ignorant 	of 	the 	law.
This principle applies to the present charge. 	By March 20, 	1990,
over eight months before the charge was 	filed, 	Charging Party was
apparently aware of all 	the actual 	conduct 	alleged to 	constitute
an unfair practice. 	The 	only thing alleged to have happened
after March 20, 	1990, 	is that Charging Party saw a newspaper
article which he believed gave him new 	information about 	the 	law.
Such 	legal 	information is 	insufficient 	to recommence the running
of the six-month limitation period. 	Cf. . 	International Union of
Operating Engineers. 	Local 501 	(1986) 	PERB Decision No. 	591-H.
The charge as 	amended is thus 	still 	outside PERB's 	jurisdiction.
I 	am therefore dismissing the 	charge 	based on the 	facts 	and
reasons 	contained in this 	letter and 	in my March 	1 	letter.
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 	(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

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CE-3042
March 22, 	1991
Page 3
Administrative Code, 	title 8, 	section 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 	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 or 	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 	and 	Refusal
to 	Issue Complaint
LA-CE-3042
March 22, 	1991
Page 4
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 Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Harry Christopher Fieger
Ronald C. 	Ruud

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
March 	1, 	1991
R. A. 	Bender, Esq.
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3042,
Harry Christopher Fieger v. 	Palm 	Springs 	Unified 	School
District
Dear Mr. 	Bender:
In 	the 	above-referenced 	charge, 	Harry 	Christopher 	Fieger 	(Fieger)
alleges 	that 	the 	Palm Springs 	Unified 	School 	District 	(District)
discriminated 	against 	him 	because 	of 	his 	union activity. 	This
conduct 	is 	alleged 	to violate 	Government Code 	section 	3543.5 	of
the 	Educational 	Employment 	Relations Act 	(EERA).
My 	investigation of 	this 	charge 	revealed 	the 	following 	facts.
The 	charge 	alleges 	that 	the 	District 	denied 	Fieger 	a promotion
because 	of 	Fieger's 	union activity. 	Fieger was informed that 	he
would not be promoted on March 	12, 	1990; 	another employee was
promoted 	instead on March 	13, 	1990. 	The charge was 	filed on
November 21, 	1990.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie 	violation 	of 	the 	EERA within 	the 	jurisdiction of 	the
Public 	Employment Relations 	Board 	(PERB), 	for the reasons 	that
follow.
Government Code 	section 3541.5(a) 	of 	the 	EERA provides 	in
relevant part 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 	ruled that this 	limitation is 	jurisdictional.
California State University. 	San Diego 	(1989) 	PERB Decision
No. 	718-H. 	Because the present 	charge was 	filed on November 21,
1990, 	any alleged unfair practice occurring before May 21, 	1990,
is 	outside 	PERB's 	jurisdiction. 	It 	appears 	that any unfair
practice alleged 	in the 	charge did occur before May 	21, 	1990.
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

Warning 	Letter
LA-CE-3042
March 	1, 	1991
Page 2
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 	March
15, 1991, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
cc: 	Harry Christopher Fieger