California School Employees Association-Chapter 507 (Spiegelman) (PERB 0400E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LON 	SPIEGELMAN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-267
PERB Decision No. 	400
August 23, 	1984
Appearances; 	D. 	Ronald Applegate, 	Attorney 	for Lon Spiegelman.
Before Jaeger, 	Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(Board) 	on Charging Party Lon Spiegelman's
appeal of 	the 	attached 	regional office 	dismissal 	of 	charges 	as
untimely. 	The 	charges 	alleged 	that 	the California School
Employees Association 	(CSEA) 	breached 	its duty of 	fair
representation, 	thereby violating subsections 3543.6(a), 	(b)
and 	(c) 	and 	3544.9 	of 	the Educational Employment Relations Act
(EERA) .1
After 	a review of the entire 	record 	in this matter, 	the
Board 	adopts 	the 	attached 	dismissal 	as 	the 	decision of 	the
Board 	itself.
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq.
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We 	reject 	the 	dissent's 	suggestion 	that 	the 	time 	for 	filing
the 	charge 	in 	this 	case 	should 	begin 	to 	run 	from a 	later 	date
by virtue 	of Spiegelman's 	complaint 	to 	CSEA 	about 	the
representation he 	received. 	In 	the Ninth Circuit 	language
quoted 	by 	the dissent, 	the 	time when 	the 	charge accrues 	is 	"the
point at which 	any 	injury 	to 	[the 	union member] 	allegedly
caused 	by 	the 	union 	became 	fixed 	and 	reasonably 	certain." 	In
this 	case, 	that point occurred 	in August when Spiegelman knew
that 	he 	was 	dissatisfied 	with 	CSEA's 	representation.
Spiegelman's 	subsequent 	complaint 	to CSEA 	about 	the
representation 	he 	had 	received, 	and 	the CSEA's vague 	response
about what 	action 	it would or 	could make, 	does 	not 	alter 	the
fact 	that 	the 	representation 	problem which 	allegedly 	cost
Spiegelman his 	job was well known 	to him 	in August.
The 	analogy 	to 	the 	exhaustion 	of 	internal 	union 	remedies
sometimes 	required 	in 	actions 	for 	breach of 	contract 	and 	breach
of 	the 	duty of 	fair 	representation 	under 	section 	301 of 	the
Labor 	Management Relations Act 	is 	not 	applicable 	here.
Exhaustion 	is 	required 	in those cases, 	if at all, 	if the
internal 	union procedures 	are 	adequate 	to give 	the 	employee 	the
final result sought 	in the 301 action, 	i.e., 	reinstatement,
etc. 	Here, 	by his letter 	to CSEA, 	Spiegelman was apparently
complaining 	about 	the 	representation 	he 	received 	rather 	than
seeking 	to 	compel CSEA 	to process 	further 	his 	claim 	against 	the
employer, 	and Spiegelman makes no 	argument 	to 	the 	contrary.
2
2

The 	cases 	relied 	upon 	in 	the 	dissent 	are 	also 	inapposite,
since 	each 	concerns 	a 	court 	action 	in which 	the 	union 	involved
failed 	to process grievances 	against 	the employer, 	and 	the
court 	allowed 	the 	applicable 	statute 	of 	limitations 	to 	be
tolled 	during 	the 	time 	that 	the 	plaintiff 	union member 	did 	not
know, 	and 	could not have 	known, 	that 	the 	union was not
proceeding on his or 	her behalf. 	Here, 	Spiegelman was quite
aware 	that 	CSEA's 	representation was 	faulty 	in his 	view, 	yet he
waited nine months before 	so alleging. 	In 	these 	circumstances,
we 	find 	that 	the 	six-month 	limitation prescribed 	by EERA was
neither 	tolled 	nor 	extended, 	and we 	therefore 	dismiss 	the
charges 	as untimely.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
matter, 	the unfair practice 	charges 	in Case No. 	LA-CO-267 	are
hereby DISMISSED without 	leave 	to 	amend.
Member 	Jaeger 	joined 	in 	this 	Decision.
Member 	Morgenstern's dissent 	begins 	on page 	4.
w
	3

Morgenstern, 	Member, 	dissenting: 	The majority affirms the
regional 	attorney's 	opinion 	that 	the 	only duty of 	fair
representation 	(DFR) 	violation alleged 	in Spiegelman's 	charge
accrued 	at 	the 	time 	that CSEA 	representative Marge 	Kantrowe
appeared 	on his 	behalf 	at 	the 	administrative 	review 	in August
1982. 	In my view, 	the factual allegations clearly establish
that 	Spiegelman's 	DFR claim against CSEA went beyond 	and
encompassed 	far more 	than 	that one 	event.
The charge 	itself and 	the 	numerous 	exhibits 	attached
thereto clearly make 	reference 	to conduct 	subsequent 	to 	the
administrative review and, 	most 	importantly, 	detail a
continuing effort by Spiegelman 	to 	be 	recompensed 	for 	the
alleged 	breach 	of 	the DFR. 	The allegations 	before us
demonstrate 	that Spiegelman began his 	correspondence with 	the
CSEA State President 	shortly after 	the 	negative decision 	of
August 	10 	was 	received and was 	promptly advised by 	President
Nancy Brasmer 	on August 17, 	1982 	that his letter was being
forwarded 	to 	the 	Director 	of Field Operations 	for 	"a complete
investigation," 	that 	it was 	the Director's 	opinion that the
investigation 	"should be complete by early 	September," 	and 	that
the Field Director 	from the Los Angeles office, 	John Cantrall,
would contact Spiegelman 	"to provide 	assistance."
As 	Brasmer 	promised, 	Cantrall did 	indeed contact 	Spiegelman
and arranged 	for 	a meeting 	on October 	7. 	According 	to 	the
pleadings, 	at that meeting, 	Spiegelman 	told Cantrall 	that CSEA
representative 	Kantrowe 	had 	not 	fairly 	represented 	him and 	was
44

continuing 	to fail 	to represent him. 	Spiegelman received no
communication from Cantrall and, 	on November 	16, 	wrote to
Cantrall 	to advise him that, 	because of his failure 	to convey
the results of 	the 	investigation, 	it was 	"very 	frustrating 	to
be left in limbo 	. 	. 	. 	." 	Recounting the meeting of October 7,
Spiegelman 	stated:
. . . 	I 	asked you what 	the 	union could do
for 	me 	now and you 	said 	that you didn't
know. 	You 	told me 	that you had 	to review my
case first.
In 	this communication, 	Spiegelman again raised his claim
that 	Kantrowe had not 	satisfied her 	representational 	role.
In relation to the 	[administrative review],
you 	said 	that 	it was 	your 	understanding 	that
the 	union 	representative wanted 	to go one
way with my case 	and 	that 	I 	wanted 	to go
another. 	I 	believe that I 	informed you that
this was not 	the case and 	that 	the 	union
representative didn't 	appear 	to want 	to go
in any direction. 	It seemed to me 	that her
presence was merely an extension 	of
management.
Spiegelman 	concluded 	by advising Cantrall 	that he 	felt
"more 	than sufficient time" 	has passed 	for 	CSEA to complete 	its
investigation.
Again, 	according to the undisputed facts, 	Spiegelman
received no response to this 	letter. 	Finally, 	on April 	18,
1983, 	he once again wrote to CSEA State President Brasmer. 	In
that document, 	Spiegelman advised 	that he was
still 	waiting 	for 	a 	reply 	from CSEA
concerning 	the 	outcome 	of 	the 	investigation.
. . . 	I 	feel 	like 	a beggar 	writing 	to you,
but I don't know what else to do 	. 	. 	.
5
5

please write to me with 	the 	results of your
investigation so that I 	know where 	I
stand 	. . . .
Assuming 	these 	facts 	to be 	true 	as 	is appropriate 	in 	the
context of an appeal of a dismissal, 	my first dispute with 	the
majority challenges 	its 	view that 	the 	only breach 	of 	the DFR
alleged herein accrued at 	the 	time 	of 	the 	administrative
review. 	A cursory 	review of 	the 	relevant case 	law lends
unquestionable 	support to 	the contrary conclusion. 	As
summarized 	by the Ninth Circuit 	in Archer 	v. 	Airline Pilots
Ass'n 	(9th Cir. 	1979) 	609 F.2d 934 	[102 LRRM 2827] 	cert, 	denied
(1980) 	446 U.S. 	953 	[104 LRRM 2302], 	where a breach of the DFR
is alleged:
To 	identify the time of accrual, 	courts look
to 	(1) 	the date on which 	the last 	"action by
the 	union of any consequence 	occurred"; 	and
(2) 	"the point at which any injury to 	[the
union member] 	allegedly caused by the 	union
became 	fixed 	and 	reasonably 	certain."1
Even more 	instructive 	is 	the court's 	application of 	this
accrual 	test. 	In that case, 	it found the union's 	"last
official act" 	to be 	its post-investigation decision 	that no
action would be 	taken on the plaintiff's 	claim, 	and 	its 	"final
action of any consequence" 	to be 	the date when, 	after 	inquiries
on the plaintiff's 	behalf, 	a union official decided that the
union considered 	the case 	closed.
1This 	quotation 	from 	the Archer 	decision 	references 	the
decision 	in Price v. 	Southern Pacific Transportation Co. 	(9th
Cir. 	1978) 	586 	F.2d 	750 	[100 	LRRM 2671].
66

Applying the accrual test to the 	instant case, 	I 	can only
conclude 	that Spiegelman's 	charge was 	clearly not 	time-barred
since 	there 	are 	no 	facts on 	the 	record 	which 	suggest 	that
Spiegelman was 	ever 	advised 	of 	CSEA's 	post-investigative
intentions. 	The majority's view, 	which links the statutory
time period 	to 	Spiegelman's 	dissatisfaction 	with 	CSEA's
representation at 	the August administrative 	review, 	looses
sight of 	the fact that it is CSEA's conduct, 	rather 	than 	the
employer's, 	which 	forms 	the basis of this charge. 	As noted 	in
Brown v. 	College of Medicine 	(NJ Sup.Ct. 	1979) 	101 LRRM 3019:
. 	. 	. 	although the plaintiff was discharged
more 	than 	two years before 	filing her
lawsuit against the union, 	plaintiff has
testified 	she was 	advised 	by 	the 	union her
grievance was pending. 	If 	the 	trier of 	fact
determines plaintiff's 	allegation 	to be
true, 	her 	cause of action would not arise
until 	she 	knew or 	should have 	known 	that 	the
union was not processing her 	grievance. 	It
was not until 	that date 	that her 	cause of
action 	accrued. 	(Emphasis 	supplied.)
Again, 	in the context of the 	instant case, 	since 	the
pleadings 	are 	replete with 	references 	to CSEA's 	failure 	to
advise Spiegelman of 	the status of 	its 	investigation, 	the case
fits 	squarely within 	the 	rule 	of 	law as 	set 	forth 	above 	and
compels 	the conclusion that 	the 	six-month 	statute 	of
limitations did 	not begin to run at 	the 	time of 	the
administrative 	review.
I 	am also unable to join 	in my colleagues' 	conclusion that
Spiegelman slept on his 	rights 	and 	thus 	failed 	to 	file his
charge within 	the 	six-month statutory 	time period. 	One need
77

not question whether 	it was 	reasonable 	for 	Spiegelman 	to pursue
his DFR claim 	through 	the 	internal 	investigation process 	when
the 	undisputed 	facts 	implicate 	the CSEA officers 	as 	those
responsible for perpetuating that 	impression. 	Moreover, 	I 	find
it hard 	not 	to view CSEA's 	failure 	to 	in any way respond 	to a
dismissed employee's 	letters 	as 	an 	independent violation of 	the
DFR.
Finally, 	by summarily affirming 	the 	regional 	attorney's
determination 	that 	the 	equitable 	tolling 	doctrine 	is
inapplicable, 	the majority necessarily adopts 	his 	express
conclusion 	that 	the 	internal 	investigative 	process 	does 	not
rise 	to 	the 	status 	of an alternative 	legal 	remedy. 	Unlike 	the
majority, 	I am unable to conclude that, 	as a matter of law,
utilizing CSEA's 	internal 	investigative 	process 	falls 	outside
the Board's 	equitable 	tolling doctrine. 	Without benefit of any
factual 	information describing 	that process, 	the majority can
in no way be certain as 	to 	the 	significance 	of Spiegelman's
pursuit of his DFR claim through 	the 	investigative process.
Indeed, 	where federal precedent has gone so far as to require
the exhaustion of 	internal union complaint procedures prior 	to
entertaining 	section 	301 	breach of contract 	suits 	in 	federal
courts 	(see Morris, 	The Developing Labor Law, Sec. Ed., 	Vol.
II, p. 	1299 et seq.), 	the liberty the majority takes with its
factual assumptions 	is most disturbing.
In sum, 	when I 	review the 	factual allegations 	that are
before 	the Board, 	it 	is clear 	that Spiegelman persisted 	in his
88

claim 	that 	he was 	denied 	representation 	and 	that 	he did 	not
file 	this 	charge 	at an earlier 	date 	only because 	of 	CSEA's
assurances 	that 	an 	investigation would 	be 	forthcoming 	and 	would
involve 	some assessment of Kantrowe's 	representation. 	The
majority's 	summary 	affirmance perpetuates 	an error 	of 	law and
regrettably denies 	Spiegelman any 	opportunity 	for 	redress.
99

STATE 	OF 	CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
August 	24, 	1983
Ronald 	Appelgate
619 S. 	Westlake Avenue, 	1st Fl
Los Angeles, 	CA 	90057
oor
Wally Blice, 	Executive Director
California 	School 	Employees 	Association
2350 	Paragon Drive
San Jose, 	CA 	9 5106
Re: 	Lon Spiegelman v. 	California School Employees Association;
Charge No. 	LA-CO-267
Dear Parties;
Pursuant to 	Public Employment Relations Board 	(PERB) 	Regulation
section 32730, 	a complaint will 	not be 	issued 	in 	the
above-referenced case 	and 	the pending 	charge 	is 	hereby
dismissed because 	it 	fails 	to 	allege 	facts 	sufficient 	to 	state
a prima 	facie 	violation of 	the Educational Employment
Relations Act 	(EERA).1 The 	reasoning 	which 	underlies 	this
decision 	follows.
•
On May 13, 	1983, 	Mr. 	Spiegelman filed with the Los Angeles PERB
office 	an unfair 	practice 	charge 	against 	the California 	School
Employees Association 	(CSEA) 	alleging 	violation 	of EERA
sections 3543.6 (a), 	(b). and 	(c) 	and 3544.9. 	Mr. 	Spiegelman
alleged 	that CSEA breached 	its duty 	of 	fair 	representation by
failing 	to 	represent 	him 	adequately 	in 	an 	administrative 	review
of 	his 	request 	to 	return to work 	at 	the conclusion of 	an
extensive 	illness 	leave 	of 	absence.
My 	investigation of 	the 	charge 	revealed 	the 	following.
Mr. 	Spiegelman was 	an employee 	of 	the Los Angeles CCD
(District). 	He was on leave of absence to June 25, 	1982. 	In
June of 	1982, 	through his Worker's Compensation attorney, 	he
1References 	to 	the 	EERA are 	to Government Code 	section
3540 	et 	seq. 	PERB 	regulations 	are 	codified 	at California
Administrative Code, 	Title 8.
\.

August 24, 	1983
Page 	2
advised 	the District 	that 	he was 	ready 	to 	return 	to work. 	On
June 	24, 	the District 	advised 	him 	that 	he would 	be 	required 	"to
clear 	through 	our Employee Health procedures. 	. 	. 	" 	On
July 20, 	1982, 	the District advised Mr. 	Spiegelman that his
request 	to 	return 	to work was 	denied.
On July 	24, 	1982, 	he 	requested 	an administrative 	review of this
denial. 	He 	also 	contacted 	CSEA 	and 	requested 	that 	they
represent 	him. 	The 	administrative 	hearing was 	set 	for
August 	3, 	1982. 	Between 	these dates Mr. 	Spiegelman met with
Ms. Marge Kantrowe, 	the assigned CSEA representative, 	and
discussed 	the 	case. 	Mr. 	Spiegelman provided Ms. 	Kantrowe with
two 	letters 	which 	he 	believed 	set 	forth 	the 	pertinent 	issues
and 	facts'. 	It 	appears 	that 	there was 	already a conflict over
the 	issue 	to 	be 	addressed 	and 	the 	strategy 	to be 	used.
On 	the 	day of 	the 	hearing, 	this 	conflict became 	readily
apparent. 	As 	a 	result, 	Mr. 	Spielgelman 	said 	he would 	attempt
to present,his own case. 	Ms. 	Kantrowe wrote out 	a 	"release",
which Mr. 	Spiegelman 	signed, 	relieving Ms. 	Kantrowe of 	the duty
of 	representing 	him.
On August 7, 	Mr. 	Spiegelman wrote 	to Ms- 	Kantrowe 	and 	explained
"the 	reasons 	for my dismissing you." 	He 	stated 	that, 	"I 	signed
your 	letter 	under 	duress 	based 	on 	your 	threat 	of 	continued
representation, 	which 	in my opinion, 	would have been a serious
detriment 	to my 	future 	employment."
On August 	10, 	Mr. 	Spiegelman was 	notified 	that the denial of
his 	request 	to 	return 	to work was upheld. 	On 	the 	same date,
Mr. 	Spiegelman 	wrote 	to 	the 	state 	president of CSEA 	"expressing
his 	concern 	about Ms. 	Kantrowe's 	representation on 	this matter
as 	well 	as 	a 	previous matter 	which 	occurred 	sometime 	earlier."
Mr. 	Spiegelman 	subsequently 	exchanged 	letters 	and 	had meetings
with CSEA 	representatives 	in 	an 	attempt 	to have his 	case
investigated 	and 	to 	receive 	representation.
On 	the 	basis of 	these 	facts, 	I conclude 	that the breach, 	if
any, 	of 	the 	duty 	to 	fairly 	represent 	occurred 	on 	or 	before
August 	3, 	1982 	and 	that Mr. 	Spiegelman was 	aware 	of 	the 	breach
as 	early as August 	3, 	certainly by August 10, 	1982.
Section 	3541.5(a) (1) 	states 	that PERB shall not:
issue 	a 	complaint 	in 	respect 	to any 	charge
based 	upon 	an 	alleged 	unfair 	practice

August 	24, 	1983
Page 3
occurring 	more 	than 	six months prior 	to 	the
filing 	of 	the 	charge 	. . .
The 	charge was 	filed on May 13, 	1983* 	As 	a result, 	any breach
of 	the 	duty 	of 	fair 	representation which 	occurred prior 	to
November 	3.3, 	1982, 	is time-barred by the statute.
In 	this 	type of case, 	PERB has 	applied 	the doctrine of
"equitable 	tolling" 	where 	the charging 	party has 	resorted, 	in
good 	faith, 	to alternative 	legal 	remedies 	San Dieguito Onion
High School District 	(2/25/82) 	PERB Decision No. 	194; 	State of
California, 	Department of Water Resources, 	et al. 	(12/29/81)
PERB Decision No. 	Ad-122-S; 	State of California 	(Department of
Health Services) 	(12/22/82) 	PERB Decision No. 	269-S.
While 	it 	appears 	from 	the charge 	that Mr. 	Spiegelman 	sent
letters 	to CSEA 	in an attempt 	to 	resolve his case, 	these
efforts 	do 	not 	rise 	to he 	status 	of 	alternative 	"legal
remedies",capable 	of 	tolling 	the 	statutory six-month 	period
State of California 	(Department of Health Services), 	supra.
The 	charge was, 	therefore, 	not 	filed 	in a timely manner and
PERB 	is 	barred 	from 	issuing 	a complaint. 	As a result, 	it 	is
not 	necessary 	to 	address 	the 	sufficiency of 	CSEA's
representation 	nor 	the effect of Mr. 	Spiegelman's 	"release".
Pursuant 	to 	Public Employment 	Relations Board 	regulation
section 	32635 	(California Administrative Code, 	title 	8,
part 	III), 	you may appeal 	the 	refusal 	to 	issue a complaint
(dismissal) 	to the Board 	itself.
Right 	to Appeal
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 	(section
32635(a)). 	To be 	timely filed, 	the original and 	five 	(5)
copies 	of 	such 	appeal 	must 	be 	actually' received 	by 	the Board
itself 	before 	the close of 	business 	(5:00 p.m.) 	on
September 	13, 	1983, 	or 	sent 	by telegraph or certified United
States 	mail 	postmarked 	not 	later 	than September 	13, 	1983
(section 	32135). 	The Board's address 	is:
Public 	Employment 	Relations Board
1031 	18th 	Street
Sacramento, 	CA 95814

- -
August 	24, 	1983
Page 	4
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 	(5) 	copies 	of 	a statement 	in opposition within 	twenty
(20) 	calendar 	days 	following 	the 	date of 	service of 	the 	appeal
(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 	the 	document 	filed with 	the Board
itself 	(see 	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 	(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 	(section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified 	time limits, 	the
dismissal 	will 	become 	final when 	the 	time 	limits 	have 	expired.
Very 	truly 	yours,
DENNIS 	M. 	SULLIVAN
Robert 	Kingsley
Regional 	Attorney
J