University of California Los Angeles Labor Relations Division (Napier’s Employment Security Agency) (PERB 0735H)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NAPIER'S 	EMPLOYMENT 	SECURITY
AGENCY 	(NESA),
Charging 	Party,
v.
UCLA LABOR RELATIONS DIVISION,
Respondent.
)
)
)
) 	Case No. 	LA-CE-240-H
PERB 	Decision No. 	735-H
May 4, 	1989
)
)
)
)
)
)
Appearances: 	Lloyd Napier, 	President, 	for Napier's Employment
Security Agency 	(NESA); 	Susan Benjamin, 	University Counsel, 	UCLA
Labor Relations 	Division.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the Public 	Employment Relations 	Board
(Board) 	on appeal by the 	charging party of 	the 	Board agent's
dismissal, 	attached hereto, 	of 	its 	charge that the respondent
violated 	sections 	3565 	and 	3567 	of 	the 	Higher Education Employer-
Employee 	Relations Act. 	We have 	reviewed the dismissal 	and,
finding it to be 	free of prejudicial error, 	adopt 	it as the
decision of 	the 	Board 	itself.
The unfair practice charge 	in Case No. 	LA-CE-240-H 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD
_____ )

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
October 20, 	1988
Lloyd Napier, 	President
Napier's 	Employment 	Security Agency
4602 Crenshaw Blvd., 	Suite 	4
Los Angeles, 	California 	90043
RE: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-240-H; 	Napier's 	Employment Security Agency
(NESA) 	v. 	UCLA Labor Relations Division
Dear Mr. 	Napier:
I 	indicated to you 	in my 	attached 	letter 	dated 	September 	15,
1988, 	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 October 3, 	1988, 	the charge would be dismissed.
I 	have not 	received either 	a request 	for withdrawal 	or 	an 	amended
charge. 	I 	am therefore dismissing the 	charge based on the 	facts
and reasons 	contained 	in my September 	15 	letter.
In a letter dated October 	3, 	1988, 	you argued that the 	six-month
statute of 	limitations 	should run not 	from December 	21, 	1987,
when your protest 	letter makes 	clear 	that you had knowledge 	of
the University's handling of Gonzalez's 	grievances, 	but 	from
January 	11, 	1988, 	when you received the 	University's response 	to
your 	letter 	and 	"knew there was 	a possible Unfair Labor
Practice." 	PERB has held, 	however, 	that the 	statute runs 	from
the 	discovery of 	the 	conduct 	constituting the 	unfair practice,
not 	from the discovery of 	the 	legal 	significance 	of 	that 	conduct.
Fairfield-Suisun Unified 	School 	District 	(1985) 	PERB 	Decision No.
547. 	The 	charge 	should therefore have 	been 	filed no 	later 	than
June 21, 	1988, 	unless there was 	"equitable tolling" 	or a
"continuing violation." 	For 	the 	reasons 	contained 	in my
September 	15 	letter, 	neither your protest letter nor 	the
University's 	allegedly 	dilatory 	and 	arrogant 	response 	to 	your
letter 	is 	enough to make 	these doctrines 	applicable 	here.
In your October 	3 	letter, 	you asked that 	I withhold 	further
action 	for one week, 	while you 	completed your 	research on 	this
issue. 	I 	have waited two weeks 	and have 	received no 	further

communication 	from you. 	I 	shall 	therefore wait no 	longer 	to
dismiss 	the 	charge.
Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-240-H
October 20, 	1988
Page 	2
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 Administrative Code, 	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
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
Administrative Code, 	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 Administrative 	Code,
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.

Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-240-H
October 20, 	1988
Page 3
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
Administrative Code, 	title 8, 	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.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
THOMAS 	J. ALLEN
Regional 	Attorney
Attachment
cc: 	Susan M. 	Benjamin
By·;_,____JAUttME:iiNI___ -

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd . Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
September 	15, 	1988
Lloyd Napier, 	President
Napier's 	Employment Security Agency
4602 Crenshaw Blvd., Suite 4
Los Angeles, 	California 	90043
Re: 	Warning Letter, 	Unfair Practice Charge No. 	LA-CE-240-H
Napier's 	Employment 	Security Agency 	(NESA) 	v.
UCLA Labor Relations Division
Dear Mr. Napier:
The 	above-referenced charge, 	filed on July 8, 	1988, 	on behalf
of Napier's Employment Security Agency 	(NESA) 	and Felipe
Gonzalez, 	alleges 	that the UCLA Labor 	Relations Division 	(the
University)1 returned a grievance 	filed on 	Gonzalez' 	behalf
by NESA, 	then accepted 	the withdrawal of a similar grievance
previously 	filed on 	Gonzalez' 	behalf by 	the American 	Federation
of State, 	County and Municipal Employees 	(AFSCME), 	and then
failed to 	reinstate 	the 	grievance 	filed by NESA, 	leaving
Gonzalez without a grievance. 	This conduct 	is 	alleged 	to
violate Government Code 	sections 3565 	and 3567 of the Higher
Education Employer-Employee Relations Act 	(HEERA).
My 	investigation of the charge revealed the 	following
information.
Felipe Gonzalez was employed as a storekeeper for UCLA. 	On
July 16, 	1987, 	he was suspended without pay for 	15 1/2 	days 	for
alleged sexual harassment. 	On August 24, 	1987, AFSCME, 	the
exclusive 	representative 	for 	the 	Service Unit 	to 	which 	Gonzalez
belonged, 	filed a grievance on his behalf 	(GR 88-2 SVC)
concerning 	the suspension. 	On September 14, 	1987, 	Gonzalez was
terminated 	for 	an 	alleged 	additional 	incident of 	sexual
harassment. 	On October 2, 	1987, AFSCME filed a new grievance
(GR-88-3 SVC) 	concerning 	the 	termination, 	alleging 	a violation
1Technically, 	the 	Regents 	of 	the 	University 	of California
should 	have been named as 	Respondent 	in 	the 	charge. 	The Office
of 	the 	General Counsel of 	the 	University was 	served with 	the
charge, 	as provided 	by Public Employment Relations Board 	(PERB)
Regulation 32142 (c) (3) (A).
e-
>
-

of Article 	8, 	section 	B of 	the collective 	bargaining 	agreement
and 	seeking 	reinstatement 	and 	backpay.
September 	15, 	1988
LA-CE-240-H
Page 	2
Gonzalez 	decided 	that 	he 	wanted 	AFSCME 	to 	represent 	him
concerning 	the 	suspension 	but 	wanted 	NESA 	to 	represent 	him
concerning 	the 	termination. 	On October 	3, 	1987, 	he signed 	a
document 	retaining 	NESA to 	represent 	him, 	and 	on October 	28,
1987, 	NESA 	filed 	a grievance 	on his 	behalf 	concerning 	his
termination, 	alleging 	violations of 	Article 	8, 	sections A.1
and 	C, 	of 	the 	collective 	bargaining 	agreement 	and 	seeking
reinstatement, 	backpay, 	and 	transfer 	to 	another position. 	On
November 	3, 	1987, 	the University returned this grievance 	to
NESA on 	the 	grounds 	that 	it 	"clearly 	sets 	forth 	the 	same
allegations 	as 	those 	in GR 88-3 SVC," 	which was pending 	at Step
2.
On November 	13, 	1987, 	AFSCME 	informed the University by memo
that 	Gonzalez 	"has 	asked 	someone 	else 	to 	represent 	him on
grievance GR 88-3. 	As of November 	11, 	1987, 	Felipe Gonzalez no
longer 	wants 	AFSCME 	to 	represent 	him on 	grievance 	GR 	88-3
(Dismissal)." 	On November 	24, 	1987, 	AFSCME told the University
by memo, 	"Felipe 	Gonzalez 	has 	chosen Attorney 	Lloyd Napier
[President 	of NESA] 	to 	represent him on GR 88-3; 	therefore
AFSCME 	is 	withdrawing 	grievance GR 	88-3." 	The 	University
accepted 	this 	withdrawal of 	the grievance. 	A copy of AFSCME's
withdrawal memo was 	sent to NESA on November 	30, 	1987.
On December 	21, 	1987, 	NESA sent a letter 	to AFSCME, 	criticizing
its withdrawal 	of 	the 	grievance 	and 	urging 	it 	to 	"issue 	a
letter 	to UCLA preserving 	this 	employee's 	right 	to
arbitration." 	Also on December 	21, 	1987, 	NESA sent a 	letter 	to
the 	University, 	protesting 	the 	return 	of 	the grievance 	filed 	by
NESA on October 	28, 	1987. 	The 	letter 	stated 	that 	the
University's 	decision 	"could 	be 	irreparably 	damaging 	to
Gonzalez 	unless 	you 	reinstate 	my 	grievance 	forthwith." 	It
further 	stated 	that 	"if 	[AFSCME] 	Steward 	[Mamie] 	Penn's 	letter
[of November 	24, 	1987] 	effectively cancelled 	all grievance and
left 	Mr. 	Gonzalez 	stripped 	naked 	of 	any grievance 	or
representative, 	it was your 	office's 	obligation to 	so 	inform me
and 	other 	concerned 	individuals, 	particularly 	since 	it 	was your
office 	that 	created 	this 	situation. 	Hopefully, 	you will
rectify 	this matter 	at once."
In a 	letter 	to NESA dated January 	6, 	1988, 	and postmarked
January 8, 	1988, 	the University defended 	its actions. 	It
stated, 	"Mr 	Gonzalez 	could 	have 	filed 	a 	letter 	substituting 	you
for 	AFSCME 	Steward 	Mamie 	Penn 	and proceeded 	with 	the 	Step 	2
meeting 	[on the AFSCME-filed grievance, 	GR 88-3 	SVC]. 	He 	did
not do 	so; 	rather 	he 	attempted to commence 	the process 	anew
[with 	the NESA-filed grievance]." 	It 	further 	stated, 	"AFSCME

could 	have 	decided 	to 	substitute 	your 	representation 	for 	its 	in
GR 88-3 SVC but 	it decided, 	instead, 	to withdraw the
grievance." 	It observed, 	"You could, 	of course, 	file a
grievance at 	this 	time 	regarding 	Mr. 	Gonzalez 1 dismissal 	but 	it
would 	be 	untimely." 	The 	letter 	concluded, 	"While 	it 	is
unfortunate 	that Mr. 	Gonzalez does not have 	an appeal 	route, 	I
do 	not 	believe 	our 	office 	acted 	in any 	way 	or 	at any 	time 	to
abuse 	its 	discretion 	in 	this 	matter." 	NESA 	received 	the 	letter
on January 	11, 	1988.
September 15, 	1988
LA-CE-240-H
Page 	3
Sometime 	on or before January 19, 	1988, 	AFSCME Executive
Director 	Nadra 	Floyd 	responded 	by 	telephone 	to 	NESA's 	letter 	to
AFSCME dated December 	21, 	1988. 	The Executive 	Director
indicated 	that 	the 	University's 	practice 	in 	this 	matter 	was
unethical 	and 	that 	she 	would 	file 	the 	appropriate 	complaint.
On January 	19, 	1988, 	NESA sent 	the 	Executive Director 	copies of
correspondence, 	relating 	to Gonzalez' grievances 	and 	requested,
"Kindly 	review and 	advise me 	as 	to 	your 	course 	of 	action 	in
this 	matter 	as soon as possible." 	On May 	26, 	1988, 	after 	not
hearing 	from the 	Executive 	Director, 	NESA wrote 	again,
requesting, 	"Please 	advise 	as 	to whether 	you 	have 	taken 	any
action in this matter."
The 	unfair 	practice 	charge 	was 	finally 	filed 	with 	the Pubic
Employment 	Relations 	Board 	(PERB) 	by NESA 	President 	Lloyd
Napier 	on July 	8, 	1988.
Based 	on the 	facts 	stated 	above, 	the 	charge 	does 	not 	state 	a
prima 	facie 	case, 	for 	the 	reasons 	that 	follow.
Under 	Government Code 	section 	3563.2, 	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." 	Six months prior 	to 	the 	filing 	of 	the 	charge 	in
the* present case was January 	8, 	1988. 	If 	an unfair practice
occurred or 	continued on or 	after 	January 	8, 	1988, 	or 	if 	the
charging 	parties 	(NESA and 	Gonzalez) 	knew or 	should 	have 	know
about 	an 	unfair 	practice 	for 	the 	first 	time 	on or 	after 	January
8, 	1988, 	then the charge 	is timely as to that practice.
Regents 	of 	the 	University 	of 	California 	(1983) 	PERB 	Decision
No. 359-H.
Both 	the 	University's 	return 	of 	the 	NESA-filed 	grievance 	and
its 	acceptance 	of 	the 	withdrawal 	of 	the 	AFSCME-filed 	grievance
(GR 88-3 SVE), 	however, 	occurred 	in November 	1987 	(on
November 3 and November 	24, 	respectively). 	The charging
parties 	knew about 	both 	of 	these 	actions 	no 	later 	than December
1987, 	as evidenced by NESA's protest 	letter 	to 	the University
dated 	December 	21, 	1987. 	The 	only 	additional 	knowledge 	gained
by the 	charging parties on or 	after 	January 	8, 	1988, 	was 	that
NESA's 	protest 	letter 	produced 	no 	change 	in 	the 	University's
position on 	the grievances.

September 	15, 	1988
LA-CE-240-H
Page 	4
The 	charge 	would 	be 	timely 	if 	the 	University's 	failure 	to
change 	its 	position 	constituted 	a 	"continuing 	violation". 	In
San 	Dieguito 	Union 	High 	School 	District 	(1982) 	PERB Decision
No. 	194, 	however, 	PERB determined 	that a 	"continuing 	violation
would 	only 	be 	found 	where 	active 	conduct 	or 	grievances 	occurred
within 	the 	limitations 	period 	that 	independently 	constituted 	an
unfair 	practice. 	However, 	a continuing 	violation would not 	be
found 	where 	the 	employer's 	conduct 	during 	the 	limitations
period 	constituted 	an 	unfair 	practice 	only 	by 	its 	relation 	to
the 	original 	offense." 	El 	Dorado Union 	High School District
(1984) 	PERB Decision No. 	382, at p. 	4 	(citations omitted). 	The
University's 	response 	to NESA's protest 	letter, 	which 	indicated
no change 	in the University's position, 	cannot be said 	to be
"active 	conduct" 	that 	constituted 	an 	unfair 	practice
independent 	of 	its 	original 	handling 	of 	the grievances.
The 	charge 	might 	still 	be 	timely 	if NESA's protest 	letter 	to
the University, 	or 	its 	letters to AFSCME, 	justified application
of 	the 	doctrine 	of 	equitable 	telling, 	which 	PERB has 	approved
in appropriate cases. 	California Dept. of Water 	Resources
(1981) 	PERB Decision No. 	Ad-122-S. 	That doctrine 	is
applicable, 	however, 	only where a respondent 	is given notice of
potential 	litigation 	by a 	charging 	party's pursuit 	of 	an
alternative 	legal 	remedy 	in 	another 	forum. 	California 	State
University, 	Fullerton 	(1986) 	PERB Decision No. 	353-H;
California 	Department of 	Health Services 	(1982) 	PERB Decision
No. 	269-S; 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	237. 	NESA's 	letters did not 	invoke 	the
established 	grievance 	procedure, 	nor 	did 	they pursue 	a 	legal
remedy 	in any other 	forum, 	so as 	to give 	the 	University 	notice
of 	potential 	litigation. 	The doctrine 	of 	equitable 	tolling 	is
therefore 	inapplicable 	to the present case.
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 	which 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 September 	15, 	1988, 	I shall dismiss your charge. 	If
you have any questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Alien
Regional 	Attorney
TJA:djm