Service Employees International Union, United Healthcare Workers West (Rivera) (PERB 2025M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WEST,
Rafael R. Rivera, on his own
behalf
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Rafael R. Rivera (Rivera)
of
a Board agent's dismissal
of
his unfair practice charge. The charge alleged that SEIU, United Healthcare Workers
West
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the Board agent's warning and dismissal letters, and Rivera's appeal.
Based on this review, the Board affirms the dismissal
of
the charge for the reasons discussed
below.
MMBA is codified at Government Code section 3500 et seq.
UHW did not file a response to the charge or the appeal.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RAFAEL R. RIVERA,
Charging Party, 	Case No. SF-CO-178-M
V . 	PERB Decision No. 2025-M
SEIU, UNITED HEALTHCARE WORKERS 	May 15, 2009
Respondent.
Appearance:
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
(UHW) violated the Meyers-Milias-Brown Act (MMBA)' by failing to fairly represent Rivera
regarding the termination of his employment with the Salinas Valley Memorial Hospital. The
Board agent dismissed the charge for lack of timeliness.
RAFAEL R. RIVERA,
Charging Party,
V.
SEIU, UNITED HEAL TH CARE WORKERS
WEST,
Respondent.
Case No. SF-CO-178-M
PERB Decision No. 	2025-M
May 15, 2009
Appearance: Rafael R. Rivera, on his own behalf.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
DOWDIN CAL VILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Rafael R. Rivera (Rivera) of a Board agent's dismissal of
his unfair practice charge. The charge alleged that SEIU, United Healthcare Workers West
(UHW) violated the Meyers-Milias-Brown Act (MMBA) 1
by failing to fairly represent Rivera
regarding the termination
of
his employment with the Salinas Valley Memorial Hospital. 	The
Board agent dismissed the charge for lack
of
timeliness.
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the Board agent's warning and dismissal letters, and Rivera's appeal."2
Based on this review, the Board affirms the dismissal of the charge for the reasons discussed
below.
1
MMBA is codified at Government Code section 3500 et seq.
2
2 UHW did not file a response to the charge or the appeal.

BACKGROUND
Rivera was a patient transporter at Salinas Valley Memorial Hospital and a member of
the bargaining unit represented by UHW. On September 24, 2007, Rivera was called into a
meeting with Terry Aaore, the director of the hospital's heart center, Charm Patton (Patton),
the hospital's vice president of human resources, and UHW representative Esther Nunez
Two weeks later, during a meeting at which Nunez was present, Patton informed Rivera
The charge did not describe the allegedly harassing conduct.
Rivera made thes~ allegations in a phone conversation with the Board agent after he
received the warning letter indicating the charge was untimely. The dismissal letter mentions
the allegations but does not state when the requests for assistance were made or denied.
2
BACKGROUND
Rivera was a patient transporter at Salinas Valley Memorial Hospital and a member of
the bargaining unit represented by UHW. On September 24, 2007, Rivera was called into a
meeting with Terry Aaore, the director of the hospital's heart center, Charm Patton (Patton),
the hospital's vice president of human resources, and UHW representative Esther Nunez
(Nunez). Rivera was informed that sexual harassment allegations had been made against him
based on his conduct on September 17 and 18. 3 Rivera said he had no recollection of the
alleged incidents. The hospital placed Rivera on administrative leave while it conducted an
internal investigation of the allegations.
(Nunez). Rivera was informed that sexual harassment allegations had been made against him
based on his conduct on September 17 and 18.' Rivera said he had no recollection of the
alleged incidents. The hospital placed Rivera on administrative leave while it conducted an
internal investigation of the allegations.
Two weeks later, during a meeting at which Nunez was present, Patton informed Rivera
that the investigation had concluded there was insufficient evidence to support the sexual
harassment allegations. Nonetheless, Patton told Rivera he would be terminated pursuant to
the hospital's "no tolerance" sexual harassment policy. Patton provided Rivera with the option
to resign in lieu of termination. She told him that if he resigned, the hospital would pay for six
months of COBRA health benefits but he would not be eligible for unemployment insurance
benefits. Nunez encouraged Rivera to accept the offer. When Rivera asked her why, Nunez
responded that the hospital's lawyers had enough evidence to support the sexual harassment
claim and that she could do nothing more for him.
that the investigation had concluded there was insufficient evidence to support the sexual
harassment allegations. Nonetheless, Patton told Rivera he would be terminated pursuant to
the hospital's "no tolerance" sexual harassment policy. Patton provided Rivera with the option
to resign in lieu of termination. She told him that if he resigned, the hospital would pay for six
months of COBRA health benefits but he would not be eligible for unemployment insurance
benefits. Nunez encouraged Rivera to accept the offer. When Rivera asked her why, Nunez
responded that the hospital's lawyers had enough evidence to support the sexual harassment
claim and that she could do nothing more for him.
Rivera signed the resignation agreement and his employment with the hospital ended as
of October 15, 2007. After this date, Rivera continued to ask UHW for assistance regarding
his termination but each time UHW refused." On May 2, 2008, an administrative law judge at
2
Rivera signed the resignation agreement and his employment with the hospital ended as
of October 15, 2007. After this date, Rivera continued to ask UHW for assistance regarding
his termination but each time UHW refused.4 On May 2, 2008, an administrative law judge at
The charge did not describe the allegedly harassing conduct.
4
Rivera made these allegations in a phone conversation with the Board agent after he
received the warning letter indicating the charge was untimely. The dismissal letter mentions
the allegations but does not state when the requests for assistance were made or denied.

the Unemployment Insurance Appeals Board found that Rivera was entitled to unemployment
benefits because he was "discharged from his most recent work for reasons that
do
not
constitute misconduct."
Unfair Practice Charge and Dismissal
On June 16, 2008, Rivera filed his unfair practice charge. The charge alleged that
UHW breached its duty
of
fair representation because, instead
of
challenging the termination,
Nunez encouraged him to accept the hospital's offer ofresignation in lieu
of
termination.
Rivera claimed he was wrongfully terminated because he did nothing wrong and was
"blackmailed" into signing the resignation agreement because he needed to maintain health
insurance to cover his wife's diabetes treatments.
In the warning letter, the Board agent found that Rivera knew or should have known no
later than October 15, 2007, that UHW would not provide him any further assistance regarding
his termination. The Board agent concluded the charge was untimely because it was filed more
than six months after October 15, 2007. In a phone conversation with the Board agent after he
received the warning letter, Rivera claimed he had continued to ask UHW for assistance after
October 15, 2007, but each request was refused. In the dismissal letter, the Board agent found
that at no time after October 15, 2007, could Rivera have reasonably believed that UHW would
assist him. The Board agent therefore dismissed the charge for lack
of
timeliness.
Rivera's Appeal
On appeal, Rivera does not challenge the Board agent's conclusion that the charge was
untimely. He reasserts that UHW did not fairly represent him regarding his termination, which
he now claims was the result of his inquiries into why the hospital failed to perform requested
tests on his wife. Attached to the appeal are many pages of his wife's medical records and
3
the Unemployment Insurance Appeals Board found that Rivera was entitled to unemployment
benefits because he was "discharged from his most recent work for reasons that do not
constitute misconduct."
Unfair Practice Charge and Dismissal
On June 16, 2008, Rivera filed his unfair practice charge. The charge alleged that
UHW breached its duty of fair representation because, instead of challenging the termination,
Nunez encouraged him to accept the hospital's offer of resignation in lieu of termination.
Rivera claimed he was wrongfully terminated because he did nothing wrong and was
"blackmailed" into signing the resignation agreement because he needed to maintain health
insurance to cover his wife's diabetes treatments.
In the warning letter, the Board agent found that Rivera knew or should have known no
later than October 15, 2007, that UHW would not provide him any further assistance regarding
his termination. The Board agent concluded the charge was untimely because it was filed more
than six months after October 15, 2007. In a phone conversation with the Board agent after he
received the warning letter, Rivera claimed he had continued to ask UHW for assistance after
October 15, 2007, but each request was refused. In the dismissal letter, the Board agent found
that at no time after October 15, 2007, could Rivera have reasonably believed that UHW would
assist him. The Board agent therefore dismissed the charge for lack of timeliness.
Rivera's Appeal
On appeal, Rivera does not challenge the Board agent's conclusion that the charge was
untimely. He reasserts that UHW did not fairly represent him regarding his termination, which
he now claims was the result of his inquiries into why the hospital failed to perform requested
tests on his wife. Attached to the appeal are many pages of his wife's medical records and
3

correspondence from the National Labor Relations Board and the California Department
of
Fair Employment and Housing.
DISCUSSION
correspondence from the National Labor Relations Board and the California Department of
Fair Employment and Housing.
DISCUSSION
1.
	New Allegations and Supporting Evidence On Appeal	New Allegations and Supporting Evidence On Appeal
Rivera's appeal contains allegations and supporting evidence not presented to the Board
agent. "Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." (PERB Reg. 32635(b).)5 The Board has found good
cause when "the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal
of
the charge." (Sacramento City Teachers
Association (Ferreira) (2002) PERB Decision No. 1503.)6
Attached to Rivera's appeal are approximately two dozen new exhibits not presented to
the Board agent. 	Some exhibits are dated prior to November 14, 2008, when the charge was
dismissed, while others are dated after that date. However, the exhibits all relate to the
allegation raised for the first time on appeal that Rivera was terminated because he questioned
the hospital about why it did not perform certain medical tests on his wife. Rivera alleged that
he asked these questions prior to his termination in October 2007. Thus, this allegation could
have been made to the Board agent prior to the dismissal
of
the charge. Moreover, the new
allegation relates to Rivera's termination by the hospital, not to UHW's alleged failure to
represent him regarding the termination. Accordingly, nothing in the record establishes good
cause for the Board to consider this new allegation and the documents provided in support
of
it.	it.
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
4
1 .
Rivera's appeal contains allegations and supporting evidence not presented to the Board
agent. "Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." (PERB Reg. 32635(b).)' The Board has found good
cause when "the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal of the charge." (Sacramento City Teachers
Association (Ferreira) (2002) PERB Decision No. 1503.)
Attached to Rivera's appeal are approximately two dozen new exhibits not presented to
the Board agent. Some exhibits are dated prior to November 14, 2008, when the charge was
dismissed, while others are dated after that date. However, the exhibits all relate to the
allegation raised for the first time on appeal that Rivera was terminated because he questioned
the hospital about why it did not perform certain medical tests on his wife. Rivera alleged that
he asked these questions prior to his termination in October 2007. Thus, this allegation could
have been made to the Board agent prior to the dismissal of the charge. Moreover, the new
allegation relates to Rivera's termination by the hospital, not to UHW's alleged failure to
represent him regarding the termination. Accordingly, nothing in the record establishes good
cause for the Board to consider this new allegation and the documents provided in support of
5
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
6
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. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

2.
	Timeliness
In cases alleging a breach
of
the duty
of
fair representation, the six-month statutory
limitations period begins to run on the date when the charging party, in the exercise
of
reasonable diligence, knew or should have known that further assistance from the union was
unlikely. (Los Rios College Federation
of
Teachers, CFTIAFT (Violett, et al.) (1991) PERB
Decision No. 889; United Teachers
of
Los Angeles (Hopper) (2001) PERB Decision No. 1441.)
5
2. 	Timeliness
PERB is prohibited 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.
(Coachella Valley Mosquito and Vector Control District v. Public Employment Relations
Board (2005) 35 Cal.4th 1072.) 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.) A charging party bears the
burden of demonstrating that the charge is timely filed. (Long Beach Community College
District (2009) PERB Decision No. 2002.)
PERB is prohibited 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.
(Coachella Valley Mosquito and Vector Control District
v.
Public Employment Relations
Board (2005) 35 Cal.4th 1072.) 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.) A charging party bears the
burden
of
demonstrating that the charge is timely filed. 	(Long Beach Community College
District (2009) PERB Decision No. 2002.)
In cases alleging a breach of the duty of fair representation, the six-month statutory
limitations period begins to run on the date when the charging party, in the exercise of
reasonable diligence, knew or should have known that further assistance from the union was
unlikely. (Los Rios College Federation of Teachers, CFT/AFT (Violett, et al.) (1991) PERB
Decision No. 889; United Teachers of Los Angeles (Hopper) (2001) PERB Decision No. 1441.)
Repeated union refusals to assist a unit member with the same issue do not start the limitations
period anew. (California State Employees' Association (Calloway) (1985) PERB Decision
No. 497-H.)
Repeated union refusals to assist a unit member with the same issue do not start the limitations
period anew. (California State Employees' Association (Calloway) (1985) PERB Decision
No. 497-H.)
Sometime in early October 2007, Nunez told Rivera he should accept the hospital's
offer of resignation in lieu of termination because the hospital had enough evidence to support
the sexual harassment claims against him. She also told Rivera that she could do nothing more
for him. At this point, Rivera knew or should have known that UHW would provide him no
further assistance regarding the termination of his employment. Even though the record does
not contain the exact date of the conversation between Rivera and Nunez, it is reasonable to
conclude that Rivera knew UHW would provide no further help as of the effective date of his
UI
Sometime in early October 2007, Nunez told Rivera he should accept the hospital's
offer
of
resignation in lieu
of
termination because the hospital had enough evidence to support
the sexual harassment claims against him. 	She also told Rivera that she could do nothing more
for him. At this point, Rivera knew or should have known that UHW would provide him no
further assistance regarding the termination of his employment. Even though the record does
not contain the exact date of the conversation between Rivera and Nunez, it is reasonable to
conclude that Rivera knew UHW would provide no further help as of the effective date of his

termination, October 15, 2007. Further, even though Rivera continued to request assistance
from UHW regarding his termination after October 15, 2007, UHW did not indicate at any
time after that date that it would assist him on the issue. Instead, Rivera alleged that UHW
continued to deny assistance. Thus, there are no facts alleged to establish that the statute
of
6
ORDER
The unfair practice charge in Case No. SF-CO-178-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
termination, October 15, 2007. Further, even though Rivera continued to request assistance
from UHW regarding his termination after October 15, 2007, UHW did not indicate at any
time after that date that it would assist him on the issue. Instead, Rivera alleged that UHW
continued to deny assistance. Thus, there are no facts alleged to establish that the statute of
limitations period began anew after October 15, 2007. (See California State Employees
Association, SEIU Local 1000 (Sutton) (2003) PERB Decision No. 1553-S ["Once the statute
(oflimitations) begins to run, the employee cannot cause it to begin anew by making the same
request over and over again."].) Rivera did not file his charge until June 16, 2008, eight
months after October 15, 2007. Consequently, Rivera's charge was untimely.
limitations period began anew after October 15, 2007. (See California State Employees
Association, SEIU Local 1000 (Sutton) (2003) PERB Decision No. 1553-S ["Once the statute
(of limitations) begins to run, the employee cannot cause it to begin anew by making the same
request over and over again."].) Rivera did not file his charge until June 16, 2008, eight
months after October 15, 2007. Consequently, Rivera's charge was untimely.
ORDER
The unfair practice charge in Case No. SF-CO-178-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Neuwald joined in this Decision.
6