PERB Decision No. 0886E•California Teamsters (Fieger) (PERB 0886E)
California Teamsters (Fieger) (PERB 0886E)
PERB Decision No. 0886ECalperb14 de jun. de 1991
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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. ) ) ) ) ) ) ) ) ______________ !
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
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