International Brotherhood of Electrical Workers, Local 1245 (Tupou) (PERB 1536M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

HEIKOTI A. TUPOU,
Charging Party, Case No. SA-CO-11-M

Vv. PERB Decision No. 1536-M

INTERNATIONAL BROTHERHOOD OF June 23, 2003

ELECTRICAL WORKERS, LOCAL 1245,

Respondent.

Appearance: Heikoti A. Tupou, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Heikoti A. Tupou (Tupou) of a Board agent’s dismissal (attached) of his unfair
practice charge. The charge alleged that the International Brotherhood of Electrical Workers,
Local 1245 violated the Meyers-Milias-Brown Act (MMBA)' by failing to properly represent
Tupou in a disciplinary hearing. Although Tupou admits that the disciplinary hearing occurred
in 1997, he did not file this charge until December 10, 2002. Accordingly, the Board agent

dismissed the charge as untimely.

' The MMBA is codified at Government Code section 3500 et seq.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the Board agent's warning and dismissal letters and Tupou's appeal. The Board finds
the warning and dismissal letters to be free from prejudicial error and adopts them as the
decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SA-C0-11-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA 	( 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
March 14, 2003
Heikoti
A.
Tupou
2357 Missouri Way
Elverta, CA 95626
(
Re: 	Heikoti A. Tupou v. International Brotherhood
of
Electrical Workers, Local 1245
Unfair Practice Charge No. SA-CO-11-M
DISMISSAL LETTER
Dear Mr. Tupou:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 10, 2002. In your charge, you allege that the
International Brotherhood
of
Electrical Workers, Local 1245 violated the Meyers-Milias-
Brown Act (MMBA) 1
by
failing to properly represent you.
I indicated to you in my attached letter dated March 6, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that, ifthere 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 March 13, 2003, the charge would be dismissed.
On March 10 we discussed your charge and your right to appeal to the Board itself. This letter
sets forth the procedure for an appeal.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my March 6 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
1 The MMBA is codified at Government Code section 3500 et seq. The text
of
the
MMBA 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.

SA-CO-11-M
March 14, 2003
Page 2
(
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than 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 18th Street
Sacramento, CA 95814-4174
FAX: (916) 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.)

SA-CO-11-M
March 14, 2003
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By~
	hb~lBernard McMonigle
Regional Attorney
I
Attachment
cc: Tom Dalzell

....
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (9l6) 327-8386
Fax: (916) 327-6377
GRAY DA VIS, Governor
March 6, 2003
Heikoti A. Tupou
2357 Missouri Way
Elverta, CA 95626
Re: 	Heikoti A. Tupou v. International Brotherhood of Electrical Workers, Local 1245
Unfair Practice Charge No. SA-CO-11-M
WARNING LETTER
Dear Mr. Tupou:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 10, 2002. In your charge, you allege that the
International Brotherhood of Electrical Workers, Local 1245 violated the Meyers-Milias-
Brown Act (MMBA) 1 by failing to properly represent you.
On December 18, 2002, we briefly discussed your charge by telephone. At that time, I
explained that unfair practice claims may be barred by a statute of limitations. PERB agents
are prohibited from issuing complaints, in MMBA cases, involving allegations occurring more
than three years prior to the filing of the charge. This prohibition was later confirmed to you in
a letter of January 7, 2003, from PERB General Counsel Robert Thompson.
Your charge states that you were a SMUD employee until 19972. The charge alleges that in
1997 SMUD and IBEW Local 1245 engaged in a cover up of criminal behavior including
harassment and threats against you. Your charge also states that SMUD engaged in labor code
violations and wrongfully discharged you from employment. In addition, you were
discriminated against because you are Polynesian; the only Polynesian working at SMUD.
While at SMUD, you performed your custodial duties under hostile conditions and in a work
environment in which you were not adequately protected from risks of injury.
You were a member of IBEW Local 1245, paying full union dues, from 1992 through 1997.
Your charge contends that the union did not properly represent you while you were employed
at SMUD, nor have they helped you since that time. Because the union provided you with no
assistance, you ask that PERB have your dues returned along with damages.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 SMUD records indicate that your employment was tenninated in April 1998.

SA-CO-11-M
March
6,
2003
Page 2
(
....
Since leaving your employment at SMUD, you have filed actions with the Department
of
Fair
Employment and Housing, the Workers Compensation Appeals Board, the National Labor
Relations Board and in state and federal courts. The union has been
of
no assistance to you in
these matters.
You wrote to Governor Wilson in 1997 regarding your treatment at SMUD. More recently, in
August 2002, you wrote to Governor Davis and were referred to PERB
by
his office.
Statutory Time Limitations
A union has a responsibility to fairly represent the interests
of
all bargaining unit employees
during the time that an individual is an employee in the bargaining unit which the union
represents. The duty
of
fair representation includes negotiations and grievance handling
.San Francisco Classroom Teachers Association, CTA/NEA (Chestangue) (1985) PERB
Decision No. 544
Accordingly, PERB has jurisdiction over allegations
of
a failure to properly represent you in
grievances during your employment at SMUD, provided such a charge is timely filed.
However, the facts
of
your unfair practice charge establish that you have not been employed in
the bargaining unit represented by IBEW Local 1245 since at least April 1998.
Code
of
Civil Procedure section 338 prohibits PERB from issuing a complaint with respect to
any charge based upon an alleged unfair practice occurring more than three years 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.)3
The charging party bears the burden
of
demonstrating that the charge is timely filed.
(Tehachapi Unified School District (1993) PERB Decision No. 1024; State
of
California
(Department ofinsurance) (1997) PERB Decision No. 1197-S.)
Your unfair practice charge was filed on December 10, 2002. Only alleged violations which
occurred after December 10, 1999 are within PERB' s jurisdiction. Because union failure to
properly represent you in under the grievance procedure occurred no later than spring 1998,
such allegations cani'1ot be the subject
of
a complaint.
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SA-CO-11-M
March 6, 2003
Page 3
. "·
Duty of Fair Representation
As discussed above, an union has a responsibility to represent the interests of all bargaining
unit employees during that time that an individual is an employee in the bargaining unit. 	The
duty of fair representation includes negotiations and grievance handling. It does not extend to
those matters beyond the collective bargaining relationship in which the union has an exclusive
right to act. 	San Francisco Classroom Teachers Association, CTA/NEA (Chestangue) (1985)
PERB Decision No. 544
Accordingly, PERB has held that a union has no duty to represent employees seeking
enforcement of statutory rights before state agencies or the courts. California State Employees'
Association (Darzins) (1985) PERB Decision No. 546-S; American Federation of State,
County and Municipal Employees, Local 2620 (Moore) (1988) PERB Decision No. 683-S.
In sum, the actions you have pursued before state agencies and the courts are outside the union
duty of fair representation which is enforced by PERB. The allegations described in your
charge which implicate the duty of fair representation consist only of grievance representation.
As discussed, such representation by Local 1245 occurred no later than April 1998. Because
the alleged grievance representation violations in your charge occurred more than three years
prior to the filing of your charge, they are barred by the statutory limitations period.
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 additional facts that would correct the deficiencies
explained above, please amend the charge. 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 be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner 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 March 13, 2003, I shall dismiss your charge.
As we discussed on February 25, you may appeal such dismissal to the PERB Board itself.
There, your case and the materials which you have submitted will again receive a full review.
If you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC