Regents of the University of California (PERB 1327H)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
KURT
	L.
	BENFIELD,
Charging
	Party,
v.
REGENTS
	OF 	THE
	UNIVERSITY
	OF
CALIFORNIA,
Respondent.
Case
	No.
	SA-CE-122-H
PERB
	Decision
	No.
	1327-H
April
	26, 	1999
Appearances:	
Mark
	R.
	Kruger,
	Attorney,
	for
	Kurt
	L.
	Benfield;
Beverly
	Wilcox,
	University
	Advocate,
	for
	Regents
	of 	the
University
	of
	California.
Before 	Caffrey,
	Chairman; 	Dyer 	and
	Amador, 	Members.
DECISION
AND
	ORDER
AMADOR,
	Member:
	This
	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(Board)
	on
	appeal
	by 	Kurt
	L.
	Benfield 	(Benfield)
to
	a
	Board
	agent's
	dismissal
	(attached) 	of
	his 	unfair 	practice
charge. 	Benfield 	alleged 	that
	the
	Regents
	of 	the 	University 	of
California
	(University)
	violated 	section
	3571(a) 	and
	(d)
	of 	the
Higher 	Education
	Employer-Employee
	Relations
	Act
	(HEERA) 1
when
	it
1HEERA
	is
	codified
	at
	Government 	Code
	section
	3560
	et 	seq.Section
	3571
	states, 	in pertinent 	part:
It
	shall
	be 	unlawful
	for 	the 	higher 	educationemployer
	to
	do
	any 	of 	the 	following:
(a)
..
Impose
	or
,,bh:t:'eaten·
bo	
·impose
	reprisals
on 	employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to 	interfere
	with,
	restrain, 	or 	coerceemployees 	because 	of 	their 	exercise 	of 	rightsguaranteed by
	this 	chapter. 	For 	purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for
	employment 	or 	reemployment.

terminated
	his
	employment.
(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
	encourageemployees
	to 	join
	any
	organization 	inpreference, to
..
,another.
· «However,
	·subject to
rules
	and
	regulations 	adopted 	by
	the 	board
pursuant 	to 	Section
	3563, 	an 	employer
	shallnot 	be
	prohibited
	from
	permitting
	employees
to
	engage
	in meeting 	and 	conferring 	or
consulting 	during 	working 	hours 	without 	lossof 	pay 	or 	benefits.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case,
including 	the
	Board
	agent's
	warning
	and
	dismissal
	letters,
	the
original
	and
	amended
	unfair 	practice
	charge,
	Benfield's
	appeal
and
	the
	University's
	response.
	The
	Board
	finds 	the
	warning 	and
dismissal
	letters
	to
	be
	free
	of
	prejudicial 	error
	and
	adopts
	them
as 	the 	decision
	of 	the
	Board
	itself.
The
	unfair 	practice
	charge
	in
	Case
	No. 	SA-CE-122-H
	is
	hereby
DISMISSED
	WITHOUT 	LEAVE
	TO AMEND.
Chairman
	Caffrey
	and
	Member
	Dyer
	joined
	in
	this
	Decision.
.....
2

STA
TE:.OF
CALIFORNIA 	PETE WILSON, Governor
f
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room
102
Sacramento, CA
95814-4174
(916)
322-3198
December
	11,
	1998
Mark
	R.
	Kruger,
	Attorney
Re:
	Kurt
	L.
	Benfield
	v.
	Regents
	of 	the 	University 	of
	California
Unfair
	Practice
	Charg
DISMISSAL
	LETTER
e
	No.
	SA-CE-122-H
Dear
	Mr.
	Kruger:
The
	above-referenced
	unfair practice
	charge
	was
	filed
	with
	the
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board)
	on August
	18,
1998.
	The
	charge
	alleges 	that
	the
	Regents
	of 	the
	University 	ofCalifornia
	(University)
	violated
	the
	Higher 	Education 	Employer-
Employee
	Relations
	Act
	(HEERA),
	Government
	Code
	section 	357l(a)
and
	(d),
	when
	it
	terminated 	the
	employment
	of
	Kurt
	L.
	Benfield.
I
	indicated
	to
	Mr.
	Benfield
	in
	the 	attached
	letter
	dated
November
	5, 	1998,
	that
	the 	above-referenced
	charge
	did
	not
	state
a
	prima
	facie 	case.
	Mr.
	Benfield
	was
	advised
	that
	if
	there
	wereany
	factual 	inaccuracies 	or 	additional 	facts
	which 	would
	correct
the 	deficiencies
	explained
	in
	that
	letter,
	the
	charge
	should 	be
amended.
	He
	was
	further
	advised
	that
	unless 	the
	charge
	was
amended
	to
	state
	a
	prima
	facie
	case
	or
	it
	was
	withdrawn
	prior
	to
November
	16, 	1998,
	the
	charge
	would 	be
	dismissed.
On
	November
	13, 	1998, 	you
	telephoned 	to
	inform
	me
	that
	you
	were
representing
	Mr.
	Benfield 	in
	this
	matter
	and 	you
	requested 	an
extension
	o·f
	time
	to
	file
	an 	amended
	charge.
	An
	extension
	was
granted 	to
	December 	7, 	1998.
	On
	that
	date
	I
	received
	an 	amended
unfair practice
	charge.
In 	the 	attached
	warning
	letter,
	I
	indicated 	that
	based
	upon
	thefacts 	alleged 	in 	the 	original
	charge,
	PERB
	was
	without
jurisdiction 	to 	consider 	the 	merits 	of 	the 	charge 	because
	the
charge 	was-untimely
	filed.
	The'amended
	charge.provides
additional 	information 	in 	response 	to 	the 	timeliness 	issue.
Mr.
	Benfield
	was 	employed 	as
	a
	police 	officer 	at 	the 	Universityof 	California, 	Davis 	campus. 	During 	his
	employment, 	Mr.
	Benfieldserved 	at 	president 	of 	the
	UC
	Davis 	police 	officers 	association.
Mr.
	Benfield 	participated 	in
	numerous 	protected 	activities,including 	the 	effort 	to 	certify
	a
	union 	to 	exclusively 	representUniversity police 	officers 	systemwide.

SA-CE-122-H
Dismissal
	Letter
Page
	2
(
On 	May
	1,
	1996,
	the 	University 	sent
	Mr.
	Benfield
	a
	letter
	ofintent
	to
	dismiss
	him
	from
	his 	position.
	The
	termination
	of
employment
	was
	effective
	May
	31, 	1996.
	On
	June
	3, 	1996,
Mr.
	Benfield
	filed
	a
	grievance 	challenging
	his
	termination.
Mr.
	Benfield's
	grievance
	advanced
	through
	a
	lengthy 	process
	which
concluded
	in
	binding
	arbitration.
The 	amended
	charge
	alleges 	that
	during 	the 	grievance
	and
arbitration
	process 	the 	University
	twice
	presented
	settlement
proposals
	to
	Mr.
	Benfield.
	On
	March 	28, 	1997,
	the
	University
offered
	Mr.
	Benfield,
	among
	other 	things,
	a
	"retraction
	of
	his
termination."
	This
	offer
	was
	not 	accepted.
On
	June 	17, 	1997,
	the 	University
	again 	presented
	this 	offer 	to
Mr.
	Benfield.
	Although
	the
	offer
	was
	not 	accepted,
	the 	charge
alleges 	that
	Mr.
	Benfield
	and
	his
	counsel
	believed 	the 	settlement
offer
	nremained 	open 	and
	available 	to
	him 	up
	to
	and
	including
	the
date 	the 	decision
	of 	the
	arbitrator
	was
	served
	on
	all
	parties
	on
February
	19,
	1998."
	The
	charge
	continues:
Officer
	Benfield 	believed
	that
	up
	to
	and
including
	February
	19, 	1998,
	the 	University
was
	wavering
	on
	its
	intent
	to 	terminate
	him.
Once
	it
	became
	apparent
	that
	the 	University,
upon
	receipt
	of 	the
	arbitrator's
	decision
would
	not 	resolve 	the
	issue
	as
	it
	had
previously 	offered, 	Officer
	Benfield
	knew
that
	the 	University
	would
	continue 	with
	its
intent 	to
	terminate
	him
	despite 	his 	protected
activities.
The
	charging
	party
	contends
	that
	the
	"open ended
	settlement
propos~l 	evinces
	a
	wavering
	of 	the 	University's 	intent 	to
continue
	its
	unfair practice
	of 	terminating 	Officer 	Benfield 	as
	a
result
	of 	his
	union
	activities."
	The
	charging
	party 	asserts 	thatthe 	University's
	"wavering
	of
	intent"
	continued
	until
February
	19, 	1998,
	the 	date 	the
	arbitrator's
	decision 	upholding
his 	dismissal
	was
	issued.
Based 	on
	the
	facts
	provided
	in 	the 	original
	and 	amended
	unfairpractice
	charge, 	the 	charge
	fails
	to 	state
	a
	prima
	facie 	case.
As 	I
	previously 	discussed 	in 	the 	attached
	letter,
	HEERA
	section
3563.2(a)
	prohibits
	PERB
	from
	taking 	jurisdiction
	and
	issuing
	a
complaint 	based 	upon 	an
	unfair 	practice
	which
	occurred
	more
	than
six
	months
	prior 	to 	the 	filing 	of 	the 	charge.
	The
	charge 	was
filed
	on August 	18, 	1998. 	Therefore, 	only 	alleged 	unfair
practices
	which 	occurred 	on
	or 	after
	February 	18, 	1998
	are 	timely
filed.

SA-CE-122-H
Dismissal
	Letter
Page
	3
Mr.
	Benfield 	received
	from
	the
	University
	a
	letter
	of
	intent 	to
dismiss
	him
	from
	his
	employment 	on
	May
	1,
	1996.
	The
	dismissal
was
	effective
	May
	31,
	i996.
	The
	termination
	of
	Mr.
	Benfield's
employment,
	allegedly 	in
	retaliation
	for 	his
	participation
	in
protected
	activities,
	occurred well
	outside
	the
	statutorylimitations
	period.
In 	the
	amended
	charge,
	the
	charging
	party
	argues
	that
	by
	making
two
	settlement
	offers
	to
	Mr.
	Benfield
	to
	"retract
	histermination," 	the 	University
	was
	wavering
	in
	its
	intent
	toterminate
	Mr.
	Benfield's
	employment.
This
	argument
	fails,
	however,
	because
	Mr.
	Benfield's 	termination
was
	effective
	May
	31, 	1996.
	On
	that
	date,
	Mr.
	Benfield
	was
	no
longer
	an 	employee
	of 	the 	University.
	The
	fact
	that
	the
University
	later
	offered 	to
	"retract"
	the 	termination
demonstrates
	only
	that
	the 	University
	was
	willing 	to 	reverse
	its
prior
	action, 	not
	that
	it
	was
	still
	considering
	whether
	toterminate
	Mr.
	Benfield's
	employment.
	Accordingly,
	the 	adverse
act
	was
	effective
	on
	May
	31, 	1996.
	Mr.
	Benfield
	was
	notified
	of
the 	University's 	intent
	to
	implement
	the 	termination
	on
	May
	1,
1996. 	Both
	of 	these 	dates
	fall
	outside 	the
	statutory 	limitations
period,
	therefore,
	PERB
	is
	without
	jurisdiction
	to 	consider
	the
merits 	of 	the
	unfair 	practice
	charge
	and
	the
	charge
	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
	of 	Regs.,
	tit.
	8,
sec.
	3?635(a) .)
	To
	be
	timely
	filed,
	the
	original
	and
	five 	copiesof
	such 	appeal
	must 	be
	actually
	received
	by
	the
	Board
	itself
before 	the plose 	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
l03l 	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
	fivecopies 	of
	a
	statement 	in 	opposition 	within 	twenty
	(20)
	calendardays 	following 	the 	date 	of 	service 	of 	the 	appeal. 	(Cal. 	Code
	ofRegs.,
	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
	orfiled
	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
	personallydelivered 	or 	deposited 	in
	the
	first-class
	mail, 	postage
	paid
	and
properly
	addressed.
SA-CE-122-H
Dismissal
	Letter
Page
	4
(
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
	beforethe 	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
dismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy
	General 	Counsel
By
Robin 	Wright
	Wefs..i,'ey
Regional 	Attorney
Attachment
cc:
	Edward
	M.
	Opton,
	Jr.
Michael 	L.
	Sheesley

STA
TE.
OF
CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 1
02
Sacramento, CA
95814-4174
(916)
322-3198
November
	5, 	1998
Kurt
	L.
	Benfield
Re:
	Kurt
	L.
	Benfield
	v. 	Regents
	of 	the 	University 	of
	California
Unfair
	Practice
	Charge
	No.
	SA-CE-122-H
WARNING
	LETTER
Dear
	Mr.
	Benfield:
The
	above-referenced
	unfair 	practice
	charge
	was
	filed
	with
	the
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	August
	18,
1998.
	The
	charge
	alleges 	that
	the
	Regents
	of 	the
	University 	ofCalifornia
	(University)
	violated
	the
	Higher 	Education 	Employer-
Employee
	Relations
	Act
	(HEERA),
	Government
	Code
	section
	3571(a)and 	(d),
	when
	it
	terminated
	your
	employment.
Investigation
	of 	the
	charge
	revealed 	the 	following
	pertinent
information.
	You
	were
	hired
	by
	the 	University 	of
	California,
Davis 	as
	a
	police
	officer
	on
	January
	2, 	1990. 	At
	the
	time,
University police 	officers
	were
	not
	exclusively 	represented 	by
	an
employee
	organization.
	During
	the
	course 	of
	your
	employment
	you
received 	several
	commendations 	and you 	were
	rated
	"very
	good"
	to"excellent"
	on
	your 	performance
	evaluations.
In
	early
	1994, 	you 	were
	elected president 	of 	the
	UC
	Davis
	police
officers 	association
	(POA), 	a
	nonexclusive
	representative.
	As
president,
	you
	filed
	grievances
	and
	met
	with
	management
	of
	the
University 	Police
	Department 	(Department)
	to 	discuss 	matters 	of
concern
	to 	University police 	officers.
	You
	were
	also 	involved 	in
a
	grievance
	and
	a
	related 	federal 	lawsuit
	filed
	against 	the
University 	concerning
	FLSA
	standards 	regarding 	overtime 	pay.
	As
a
	result
	of
	the 	lawsuit, 	the 	University
	changed
	its
	overtime
policy
	and
	paid 	approximately 	$176,000
	to 	police
	departmentemployees.
	You
	were
	also 	involved
	in 	organizing 	meetings
	at
	UC
campuses
	statewide 	concerning 	the
	certification
	of
	a
	union
	toexclusively 	represent 	all- University
po-lice·
off
±cers
:'·
	You
actively 	obtained 	signature 	cards
	and 	undertook
	other
	activities,
of
	which
	the 	University
	was
	aware,
	in
	an 	attempt 	to 	certify 	an
exclusive 	representative.
	The
	charge
	fails 	to 	indicate
	when
	you
engaged
	in 	these 	protected 	activities.
You
	allege 	that 	after
	you 	were
	elected president 	of 	the
	UC
	Davis
POA
	the 	University 	began 	to 	retaliate 	against 	you. 	You
	statedthat
	you 	were 	denied 	the 	right 	to 	attend 	advanced 	officer
training 	and 	specialty position 	training 	assignments. 	After

SA-CE-122-H
Warning
	Letter
Page
	2
being
	selected
	as
	a
	weaponless
	defense
	instructor,
	you 	were
	never
allowed
	to 	attend
	a
	weaponless
	defense
	instructor
	course,
although
	other
	instructors
	attended 	these
	courses.
	You
	appliedfor
	a
	Field 	Training
	Officer
	(FTO)
	specialty position 	within 	the
Department
	on
	several
	occasions.
	Four
	or 	five
	times
	you
	were
scheduled
	for 	the
	FTO
	oral
	interview.
	However,
	just 	prior
	to
each
	interview, 	the 	interviews
	were
	canceled
	by
	the
	Department.
In
	one
	instance,
	the 	interview
	was
	canceled
	five
	minutes
	before
it
	was
	to
	begin.
	You
	were
	told 	that
	the 	interview
	had 	been
canceled
	because
	one
	of 	the
	panelists,
	Sergeant
	Joyce 	Souza,
	had
gone
	home
	sick.
	When
	you
	contacted
	Sergeant
	Souza
	later
	at
	home,
she
	told
	you
	that
	she
	was
	not
	ill
	but
	had 	been
	ordered
	to
	go
	home
by
	Lieutenant
	Rita
	Spaur.
You
	allege
	that
	as
	a
	result
	of
	your
	activities
	as
	POA
	president
and 	your
	efforts
	toward 	systemwide
	organization
	of
	University
police
	officers,
	you 	were
	subject
	to
	seven
	internal
	affairs
investigations.
	In
	one
	instance, 	involving
	a
	specialty
assignment
	on
	"Picnic
	Day"
	at
	UC
	Davis,
	you
	arrived
	approximately
five
	minutes
	late
	for
	work,
	after
	having
	called
	work
	to
	reportcar
	problems.
	You
	were
	advised
	that
	a
	disciplinary
	comment
	card
for 	tardiness
	would 	be
	placed
	in
	your 	personnel
	file.
	You
learned
	that
	two
	other 	officers 	arrived
	much
	later
	for
	their
assignments
	on
	Picnic
	Day,
	however,
	neither
	employee
	was
	given
	a
disciplinary
	comment
	card.
	The
	charge
	fails
	to
	state
	when
	these
adverse
	acts
	occurred.
In
	1994,
	Sergeant
	Jerry
	Bounds
	prepared
	your 	annual
	evaluation,
rating
	you
	as 	"very good."
	The
	Department
	ordered 	Sergeant
Bounds
	to 	rewrite
	your
	evaluation
	and
	to
	lower 	your
	evaluation
rating.
	In
	his
	many
	years 	with 	the 	University, 	Sergeant
	Bounds
has 	been
	ordered
	to 	rewrite 	only
	one
	other 	evaluation,
	that 	of
	a
previo~s
	POA
	president.
	You
	also 	allege 	that 	other 	police
officers
	serving 	as
	POA
	officers 	at
	UC
	Davis 	and
	other 	University
campuses 	haye 	been
	disciplined 	or 	terminated 	as
	a
	result
	of
	their
union
	activity.
In 	January
	1996,
	the
	Department
	initiated
	another
	internal
affairs 	investigation 	against
	you.
	The
	Department
	alleged
	that
you
	improperly
	utilized
	the
	Department 	computer 	and
	sent
electronic
	mail
	in 	order 	to
	perform 	union 	business
	andcommunicate 	with. union
	members
...
"On April
	19
r"
1996;
	approximately
three
	months
	before 	the 	scheduled 	systemwide
	certificationelection 	to 	determine 	union
	representation 	for 	police 	officers,
you 	were
	placed
	on
	administrative 	leave.
	On
	April 	19,
	afterrelinquishing 	your
	weapon 	and 	badge, 	Captain Michael 	Corkery 	gaveyou 	a
	ride 	to 	your 	vehicle. 	During 	the 	ride, 	Captain 	Corkery
asked 	you 	who 	was 	going 	to 	run 	the 	union's 	certification
	campaignnow
	that
	you 	had 	been 	terminated.
	When 	you 	responded 	that 	you

SA-CE-122-H
Warning
	Letter
Page
	3
(
would
	continue
	to
	direct
	the
	union's
	certification
	activities,
Captain
	Corkery
	appeared 	extremely
	frustrated.
On 	May
	1,
	1996,
	you
	received
	from
	the 	University
	a
	letter
	of
intent
	to
	dismiss
	you 	from
	your
	position.
	The
	termination
	of
your
	employment
	was
	effective
	May
	31, 	1996.
	On
	June 	3,
	1996,
	you
filed
	a
	grievance 	challenging
	your
	termination.
	The
	grievanceprocess
	concluded
	in
	binding
	arbitration
	and 	an
	arbitrator's
decision
	upholding 	your
	dismissal
	was
	issued
	on
	February
	19,1998.
	The
	arbitrator's
	decision
	was
	received
	by
	your
	attorney
	on
February
	22,
	1998.
	You
	contend
	that
	the 	University
	failed
	to
comply
	with
	the 	grievance 	process
	which
	requires 	grievances
	to
	be
resolved 	within
	90
	days.
You
	assert 	that
	the 	University
	violated
	HEERA
	section
	357l(a)
when
	it
	terminated
	your
	employment
	for
	engaging
	in 	protected
activity.
	You
	also
	contend
	that
	the 	University
	violated
	HEERA
section
	3571(d) 	by
	interfering
	with
	the
	formation
	and
administration 	of 	the
	union
	by
	ordering
	your
	dismissal,
	as
	the
organizer
	of 	the
	systemwide
	certification 	effort,
	three
	months
before 	the
	election.
Based
	upon
	the
	facts 	stated
	above,
	the
	charge
	fails
	to
	state
	a
prima
	facie 	case.
HEERA
	section
	3563.2(a)
	states 	that
	PERB
	"shall
	not
	issue
	a
complaint
	in 	respect
	of
	any
	charge 	based
	upon 	an
	alleged
	unfairpractice
	occurring
	more
	than
	six
	months
	prior
	to 	the
	filing 	of
the 	charge."
PERB
	has 	held
	that
	the
	six
	month
	statutory 	limitations 	period
begins
	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
	Decision
No.
	359-H.),
	Since 	the 	charge
	was
	filed
	on August 	18, 	1998,
	the
statutory 	limitations 	period
	began
	to
	run
	on
	February 	18,
	1998.Accordingly, 	only 	alleged 	unfair 	practices
	which
	occurred 	on
	or
after
	February 	18,
	1998
	are 	timely
	filed.
On 	May
	1, 	1996, 	you
	received
	from
	the 	University
	a
	letter
	of
intent 	to 	dismiss
	you 	from
	your
	position 	effective
	May
	31, 	1996.
Therefore, 	as 	of
	!½ay
	l,.
	19
9q,. yqu
..
.were 	on.
notice 	that 	theUniversity 	intended 	to 	terminate 	your 	employment.
	PERB
	is
without
	jurisdiction 	to 	consider 	unfair practice 	charges 	which
are 	not
	filed 	within 	six
	months
	of 	the 	alleged 	unfair 	practice,in 	this 	case, 	the
	May
	1,
	1996
	notice 	of 	termination.
	The
	charge
fails 	to 	state
	when
	the 	remaining 	alleged 	unlawful 	adverse
	actsoccurred.
	However,
	it 	is 	clear 	that 	they 	occurred 	prior 	to 	yourbeing 	placed 	on 	administrative 	leave 	on 	April 	19, 	1996.

SA-CE-122-H
Warning
	Letter
Page
	4
Accordingly,
	these 	alleged
	unfair 	practices
	are
	also
	untimely
filed.
Citing 	several
	PERB
	decisions,
	you
	contend
	that
	the
	statute
	of
limitations
	was
	tolled
	while
	you
	appealed
	your
	dismissal 	through
the
	University's
	grievance
	and
	arbitration
	process.
	Your
grievance
	was
	filed
	on
	June 	3,
	1996
	and
	the
	arbitrator's
	decision
was
	issued
	on
	February
	19, 	1998.
Under
	the
	Ralph
	C.
	Dills
	Act
	and
	the
	Educational
	Employment
Relations
	Act,
	the
	statute
	of
	limitations
	period
	is
	tolled
	duringthe
	time
	it
	takes
	a
	charging
	party 	to
	exhaust
	the 	grievanceprocedure.
	(Government
	Code
	sections
	3514.S(a)
	and
	3541.S(a)
respectively.)
	However,
	the
	language
	of
	HEERA
	does
	not
	provide
for 	statutory
	tolling
	and,
	therefore, 	the
	Board
	has
	concluded
that
	under
	HEERA
	the
	six
	month
	statute
	of
	limitations
	is
	not
tolled
	by
	the
	pursuit
	of
	a
	grievance. 	(California
	StateUniversity
	(1995)
	PERB
	Decision
	No.
	1094-H.)
In 	support 	of 	the 	timeliness
	of
	your 	charge
	you
	cite
	three
proposed
	decisions 	issued
	by
	PERB
	administrative
	law
	judges
	(ALJ)
which
	apply 	the
	doctrine
	of
	equitable
	tolling.
	These
	early
	PERB
ALJ
	decisions 	are 	not
	helpful 	to
	your
	position.
	First,
	proposed
decisions 	issued
	by
	PERB
	ALJs
	which
	are
	not
	adopted
	by
	the
	Board
itself,
	are 	not 	considered 	precedential 	decisions
	and
	may
	not
	be
relied
	upon. 	(See
	PERB
	Regulation
	32215.)
	Second,
	in
	a
	later
PERB
	decision, 	California 	State 	University,
	San
	Diego
	(1989)
	PERB
Decision
	No.
	718-H,
	the
	Board
	held
	that
	the
	six
	month
	statutorylimitations 	period
	is
	jurisdictional 	in
	nature
	and
	can 	not 	be
waived by
	either
	a
	party or
	by
	the
	Board
	itself.
	Under
	prior
PERB
	decisions, 	the 	doctrine 	of 	equitable
	tolling
	allowed
	the
Board,
	in
	its
	discretion
	and
	in
	furtherance 	of 	the
	principles
	of
equity, 	to
	waive
	the
	six
	month
	statute
	of
	limitations 	period
while
	a
matter
	was
	being pursued 	through 	formal
	legal 	processes.
However,
	in
	Regents
	of 	the 	University 	of 	California
	(UC-AFT)
(1990)
	PERB'
Decision
	No.
	826-H,
	the
	Board 	concluded
	that
	it
	no
longer
	had
	the
	discretion 	to
	waive
	the
	six
	month
	statutorylimitations 	period
	and,
	therefore, 	the 	doctrine 	of 	equitable
tolling 	is
	no
	longer 	applicable.
For 	these 	reasons, 	the 	charge 	as 	presently written
	does 	not
	state
a
	prima
	facie 	case.
	If
	there 	are 	any,fa~tual~inaccuracies
	inthis 	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. 	Theamended 	charge 	must 	have 	the 	case 	number
	written 	on 	the 	top 	right
hand 	corner 	of 	the 	charge 	form. 	The 	amended 	charge 	must 	be

SA-CE-122-H
Warning
	Letter
Page
	5
(
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
	November
	16,
	1998,
your 	charge
	will
	be
	dismissed.
	If
	you 	have 	any
	questions,
	please
call
	me
	at
	(916)
	322-3198,
	ext
	305.
Sincerely,
Robin
	Wrighc
	~ley
Regional
	Attorney