Stationary Engineers Local 39 (Quigley) (PERB 1790S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ERIC JON QUIGLEY,
Charging Party, Case No. SF-CO-48-S
v. | PERB Decision No. 1790-S
STATIONARY ENGINEERS LOCAL 39, December 21, 2005
Respondent.

Appearance: Eric Jon Quigley, on his own behalf.
Before Whitehead, McKeag and Neuwald, Members.
DECISION

NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric Jon Quigley (Quigley) of a Board agent’s dismissal
(attached) of his unfair practice charge. Quigley alleged that the Stationary Engineers Local 39
violated the Ralph C. Dills Act (Dills Act)! by breaching its duty of fair representation when it
failed to file grievances on his behalf and denied his request for representation before the State
Personnel Board.

The Board has reviewed the entire record including the unfair practice charge, the
amended unfair practice charge, Local 39’s response, the Board agent’s warning and dismissal
letters, and Quigley’s appeal. The Board finds the dismissal and warning letters to be free of
prejudicial error and adopts them as the decision of the Board itself.

On appeal, Quigley presents new charge allegations and new supporting evidence that

were not previously presented and that were known to Quigley when he filed his unfair

‘The Dills Act is codified at Government Code section 3512, et seq.

practice charge and amended unfair practice charge. PERB Regulation 32635(b)2 precludes a
charging party from raising new allegations or new supporting evidence on appeal without
good cause. Quigley failed to demonstrate good cause for the presentation of new allegations
and/or supporting evidence on appeal, and nothing in the documents filed related to the appeal
indicates good cause.
ORDER
The unfair practice charge in Case No. SF-CO-48-S is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members Whitehead and McKeag joined in this Decision.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

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PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
August 17, 2005
Eric Jon Quigley
P.O. Box 8173
Salinas, CA 93912
Re: 	Eric Jon Quigley v. Stationary Engineers Local 39
Unfair Practice Charge No. SF-CO-48-S
DISMISSAL LETTER
Dear Mr. Quigley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2005. The charge alleges that the Stationary Engineers
Local 39 violated the Ralph C. Dills Act (Dills Act)1 by breaching its duty to represent you
fairly on numerous occasions. An amended (supplemental) charge was filed on
August 1, 2005.
I indicated to you in my attached letter dated August 2, 2005, 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 August 16, 2005, the charge would be dismissed.
I have not received either an ame~ded charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my August 2, 2005, letter.
Right to Appeal
Pursuant to PERB Regulations, 2 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. (Regulation 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.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-48-S
August 17, 2005
Page2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.) 	·
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 i'8th Street
Sacramento, CA 95814-4174
FAX: (~16) 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. (Regulation 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 Regulation 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. (Regulation 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. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the

SF-C0-48-S
August 17, 2005
Page 3
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By _ 	___::~~...u.~_L=..::::::i___
J
Lab
Attachment
cc: J. Felix De La Torre

STATEOFCALIFORNIA 	r- =============~·(--., 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
August 2, 2005
Eric Jon Quigley
P.O. Box 8173
Salinas, CA 93912
Re: 	Eric Jon Quigley v. Stationary Engineers Local 39
Unfair Practice Charge No. SF-CO-48-S
WARNING LETl1ER
Dear Mr. Quigley:
The above-referenced unfair practice charge was filed with the Public Employmen~ Relations
Board (PERB or Board) on June 20, 2005. The charge alleg~s that the Stationary Engineers
Local 39 violated the Ralph C. Dills Act (Dills Act)1 by breaching its duty to represent you
fairly on numerous occasions. An amended (supplemental) charge was filed on
August 1, 2005.
The initial charge alleges incidents of misconduct occurring on the following dates: May 30;:
September 19 and November 24, 2003; February 26,March 4 and 26, April 5 and 9, May 11,
July 22 and December 15, 2004. The amended charge provides more background information
regarding the these incidents.
·
·
In addition, the amended charge includes an allegation that the union "without exception failed
to successively complete to a satisfactory condition any grievance." A letter (Exhibit 0) dated
March 16, 2005, from Charlie Solt, Local 39 Business Representative, to Julie Chapman, -
Labor Relations Officer for the Department of Personnel Administration, is attached to the
charge in support of this allegation. The letter requests that a grievance apparently filed on
your behalf by the union be accepted at the third level of review. There is no date given for the
initial filing of the grievance.
Dills Act sectibn 3514.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The statute of limitations is an affirmative defense which
has been raised by the respondent in this case. (Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified School District (1993)
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-48-S
August 1, 2005
Page2
(
PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
All of the allegations of misconduct in the initial charge occurred than six months prior to the
filing date, June 20, 2005, with the exception of the December 15, 2005, allegation. Therefore,
those allegations must be dismissed as untimely.
On October 13, 2004, you received a notice of dismissal from your employer. On October 19,
2004, your union representative attended a Skelly hearing with you. You were subsequently
dismissed on October 22, 2004. You received a letter from the union on December 15, 2004,
stating that it had decided not to pursue an appeal of your dismissal before the State Personnel
Board. The letter stated the union and its attorneys had investigated the matter, and decided
the appeal would likely be denied. 	The union advised of your right to pursue an appeal
independent of the union.
PERB has held that an exclusive representative does not owe a duty of fair representation to
unit members in a forum over which the union does not exclusively control the means to a
particular remedy. (California State Employees Association (Parisi) (1989) PERB Decision
No. 733-S.) Accordingly, the duty of fair representation does not attach to an exclusive
representative in extra-contractual proceedings before agencies such as Department of Fair
Employment and Housing or the State Personnel Board. (California Union of Safety
Employees (John) (1994) PERB Decision No. 1064-S; California State Employees Association
(Carrillo) (1997) PERB Decision No. 1199-S.) 	Thus, the union had no duty to represent you
at the appeal of your dismissal before the State Personnel Board. 	_
In the amended charge, you assert that the March 16, 2005, letter from the union toDPA
somehow substantiates your allegation that the union did not process your grievance
satisfactorily. However, even if the matter grieved occurred within the six month statute of
limitations, the letter demonstrates that the union did, in fact, file a grievance on your behalf
and represent you at least to the third level of review. It is unclear how this conduct constitutes
a violation of the Act.
For these reasons stated above, the charge, as presently written, does not state a prima facie
case. If there are any factual inaccuracies in this letter or additional facts that would correct
the deficiencies explained above, please amend the charge. The amended charge shouldbe
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, andbe signed under penalty of
perjury by the charging party. The amended charge must have the case number writtenon the
top right hand comer 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 August 16, 2005, I shall dismiss
your charge.

SF-CO-48-S
August 1, 2005
Page 3
(
If you have any questions, please call me at the above telephone number.
Sincerely,
Jeril
Lab
JAG