California Teamsters (Fieger) (PERB 0886E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HARRY 	CHRISTOPHER 	FIEGER,
Charging 	Party,
v.
CALIFORNIA TEAMSTERS, 	PUBLIC,
PROFESSIONAL AND 	MEDICAL
EMPLOYEES UNION, 	LOCAL 911,
Respondent.
Case No. 	LA-CO-548
PERB Decision No. 	886
June 14, 1991
Appearance: 	Harry Christopher Fieger, 	on his 	own behalf.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Harry Christopher
Fieger 	(Fieger) 	of a Board agent's dismissal, 	attached hereto, 	of
his 	charge that the California Teamsters, 	Public, 	Professional
and Medical 	Employees 	Union, 	Local 	911 	violated 	section 	3543.6 	of
the Educational Employment Relations Act 	(EERA)1 by failing to
fairly represent 	Fieger. 	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-CO-548 	are hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Shank and Camilli 	joined 	in this 	Decision.
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
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______________ !

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 22, 	1991
R. 	A. Bender, Esq.
79607 	Country Club Dr., 	Suite 	1-4
Bermuda 	Dunes, 	CA 	92201
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-548, 	Harry Christopher Fieger v. 	California
Teamsters, 	Public. 	Professional and Medical Employees Union.
Local 	911
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
lThe 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.

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CO-548
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 	6till 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-CO-548
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-CO-548
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 _
Regional 	Attorney
Attachment
cc: 	Harry Christopher Fieger
Robert D. 	Vogel
=	•	➔

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3S30 Wilshire Boulevard. Suite 650
Los Angeles. CA 90010-2334
(213) 736-3127
March 	1, 	1991
R. A. 	Bender, Esq.
79607 Country Club Dr., 	Suite 	1-4
Bermuda 	Dunes, 	California 	92201
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-548,
Harry Christopher Fieger v. 	California 	Teamsters,
Public. 	Professional 	and Medical 	Employees 	Union,
Local 	911
Dear Mr. 	Bender:
In 	the 	above-referenced 	charge, 	Harry Christopher Fieger 	(Fieger)
alleges that the California Teamsters, 	Public, 	Professional and
Medical Employees Union, 	Local 	911 	(Union) 	failed to represent
Fieger fairly. 	This 	conduct 	is 	alleged 	to violate Government
Code 	section 	3543.6 	of 	the 	Educational 	Employment Relations 	Act
(EERA).
My 	investigation of 	this 	charge 	revealed 	the 	following 	facts.
The 	charge alleges 	that 	the Union failed to represent Fieger in a
grievance procedure, 	failed to provide him with a Union attorney,
and gave him erroneous 	legal 	advice. 	The charge does not 	state
when these events occurred. 	Attached to the charge is 	a copy of
a grievance signed by Fieger on February 	13, 	1990, 	and a memo
from Fieger dated February 21, 	1990, 	moving the grievance to
Level 	II 	of the grievance process. 	Fieger has 	sent me a copy of
a 	letter dated February 	15, 	1990, 	in which he asked the Union for
help, 	in response to which he 	says 	the 	Union did nothing. 	The
Union tells 	me 	that 	it has 	had no 	contact with Fieger 	since April
26, 	1990, 	which was the date of a grievance meeting that was
canceled. 	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,

Warning 	Letter
LA-CO-548
March 	1, 	1991
Page 2
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
accordingly. 	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 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, 	1990, 	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