Trustees of the California State University (Schmid). (PERB 1367H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
VIVIENNE 	SCHMID,
Charging 	Party,
v.
TRUSTEES 	OF THE 	CALIFORNIA
STATE UNIVERSITY,
Respondent.
Case No. 	SF-CE-540-H
PERB Decision No. 	1367-H
December 17, 	1999
Appearance: 	Cessaly D. 	Hutchinson for Vivienne Schmid.
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
(Schmid) 	to a Board agent's dismissal 	(attached) 	of 	the unfair
practice 	charge. 	The charge alleged that 	the Trustees 	of 	the
California State University violated section 3571(a) 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA)1 because
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Section 3571 provides, 	in pertinent part, 	that:
It 	shall 	be unlawful 	for the higher education
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.
)
)
)
)
)
)
)
)
)
)
______________ )

Schmid 	represented other employees 	in actions 	to enforce 	rights
under 	their 	collective bargaining 	agreement.
The Board agent 	found that 	the 	charge did not 	state a prima
facie 	case because 	of untimeliness.
The 	Board has 	reviewed 	the 	entire 	record 	including 	the
unfair practice 	charge, 	the warning and dismissal 	letters 	and
Schmid's 	appeal. 	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-540-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman Caffrey and Member Dyer 	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 6, 	1999
Cessaly 	Hutchinson
168 7 Thousand Oaks Blvd.
Berkeley, 	California 	94707-1553
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Vivienne 	Schmid v. 	Trustees 	of 	the 	California 	State
University
Unfair Practice 	Charge No. 	SF-CE-540-H
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed on August 	24,
1999, 	alleges 	that 	the Trustees of 	the California 	State
University 	retaliated 	against 	Vivienne 	Schmid 	because 	she
represented other employees 	in 	actions 	to 	enforce 	rights 	under
their 	collective 	bargaining agreement. 	This 	conduct 	is 	alleged
to violate Government 	Code 	section 3571(a) 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA).
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. 	Vivienne 	Schmid discovered 	after 	she
retired that 	her 	former supervisor, 	Staton Johnston, 	had been
prosecuted 	for 	criminal 	fraud on his 	job at 	San Jose 	State
University. 	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 	expands 	on 	the 	allegation that 	she 	was 	not
aware 	of 	the 	existence 	of 	the 	HEERA or the 	Public 	Employment
Relations 	Board by providing more 	details 	about 	her 	state 	of
knowledge 	(or 	lack thereof). 	Further, 	Charging Party questions
whether 	knowledge 	of 	the 	Dills 	Act 	provisions 	can be 	imputed 	to
her 	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-540-H
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-540-H
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
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
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
DONN 	GINOZA
Regional 	Attorney
Attachment
cc: 	Donald A. 	Newman

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 77 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
September 27, 	1999
Cessaly 	Hutchinson
168 7 Thousand Oaks Blvd.
Berkeley, 	California 	94707-1553
Re: 	WARNING LETTER
Vivienne 	Schmid v. 	Trustees 	of 	the 	California 	State
University
Unfair 	Practice Charge No. 	SF-CE-540-H
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed on August 	24,
1999, 	alleges 	that 	the Trustees 	of 	the 	California 	State
University 	retaliated 	against 	Vivienne 	Schmid because 	she
represented 	other 	employees 	in 	actions 	to 	enforce 	rights 	under
their 	collective 	bargaining agreement. 	This 	conduct 	is 	alleged
to violate Government 	Code 	section 3571(a) 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA).
Investigation 	of 	the 	charge 	revealed the 	following. 	Vivienne
Schmid was 	employed 	as 	an 	accounting 	technician with 	the
University 	in 	1982 	when 	took 	a 	forced 	retirement 	on 	disability.
She 	alleges 	that 	she 	had been 	continually harassed by her 	former
supervisor. 	In order 	to 	distance 	herself 	from this 	supervisor
she 	even took a demotion 	in pay. 	However, 	he 	later became her
supervisor again. 	Without providing any other details, 	Schmid
alleges 	that 	the 	supervisor's 	conduct 	was 	in retaliation for her
protected 	activities, 	which 	included 	representing 	other 	employees
under her 	for 	the 	purpose 	of 	enforcing 	rights 	under 	their
collective 	bargaining 	agreement.
In 	seeking 	to 	explain why 	she 	waited 	seventeen years 	after the
events 	in question to 	file 	the 	instant 	unfair practice 	charge,
Schmid 	states 	that 	she did not 	learn of 	the 	existence 	of 	the
Public 	Employment 	Relations 	Board 	(PERB) 	until 	the 	week before
she 	filed. 	Schmid also 	contends 	that 	she 	was 	laboring under an
incorrect 	assumption 	that 	her 	representational 	activity was 	not
protected because 	she was 	not 	aware 	of 	the passage 	of 	the HEERA.
Based on 	the 	facts 	stated 	above, 	the 	charge 	as 	presently written
fails 	to 	state 	a prima 	facie violation of 	the HEERA for 	the
reasons 	that 	follow.
An unfair practice 	must 	be 	filed with 	PERB within 	six months 	of
its occurrence. 	(Gov. 	Code, 	sec. 	3563.2(a).) 	PERB has held that
the 	six-month period commences 	once 	the 	charging party knows, 	or
e

Warning 	Letter
SF-CE-540-H
September 27, 	1999
Page 2
should have 	known, 	of 	the 	conduct 	underlying the 	charge.
(Fairfield-Suisun Unified 	School 	District 	(1985) 	PERB 	Decision
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,	Sincerely,
DONN 	GINOZA
Regional 	Attorney