Teamsters Locals 78 and 853 (Hinek) (PERB 2056M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FRANZ HINEK,
Charging Party,
V.
TEAMSTERS LOCALS 78 & 853,
Respondent.
Case No. SF-CO-173-M
PERB Decision No. 2056-M
August 26, 2009
Appearance: Franz Hinelc, on his own behalf.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Franz Hinelc (Hinek)
of
the Board agent's
dismissal ofHinek's unfair practice charge against Teamsters Locals 78 and 853 (Teamsters). 1
Hinek filed an unfair practice charge on April 29, 2008, alleging that the Teamsters violated
the Meyers-Milias-Brown Act (MMBA)2 by breaching its duty
of
fair representation in failing
to process a grievance on his behalf. The Board agent dismissed the charge on the grounds
that it was not timely filed and failed to state a prima facie case
of
breach
of
the duty
of
fair
representation.
Upon a review
of
the entire record including, but not limited to, the unfair practice
charge, the Teamsters' response thereto, the Board agent's warning letter, Hinek's amended
1 Teamsters Local 78 merged into Local 853 effective February 1, 2008, and no longer
exists as a separate entity.
2 MMBA is codified at Government Code section 3500 et seq.

charge and supporting materials, the Board agent's dismissal letter, and Hinek's appeal letter,3
the Board affirms the Board agent's dismissal for the reasons stated below.
BACKGROUND
On April 29, 2008, Hinek filed an unfair practice charge alleging that the Teamsters
breached its duty of fair representation under the MMBA by failing to process a grievance for
vacation pay on his behalf after he was terminated from employment with the Solano County
Fair Association (SCFA) on July 17, 2006.4 The charge further alleges that the Teamsters'
attorney, Sheila Sexton (Sexton), "dropped the case" and failed to adequately represent him
regarding his termination. The charge included, among other documents, a copy of a grievance
filed by Hinek with the Teamsters on July 18, 2006, and a letter dated July 3, 2007 from
Sexton to the President of the Teamsters recommending that the Teamsters not pursue the
grievance challenging Hinek's termination based upon allegations that he threatened physical
harm and made racially offensive statements to a co-worker.
On August 18, 2008, the Board agent issued a warning letter informing Hinek that the
charge was untimely in that the statutory time period began to run in August 2006, when the
Teamsters informed Hinek that it would not be filing a grievance over his vacation pay. 	The
warning letter also advised Hinek that the facts showed that, not later than August 9, 2007, the
Teamsters advised Hinek that it would not pursue his grievance relating to his discharge, and
that this allegation was also time-barred. The warning letter further informed Hinek that the
factual allegations had not established a prima facie case of violation of the duty of fair
The Teamsters did not file a response to the appeal.
4 Hinek previously filed a charge against SCF A challenging the termination. 	On
June 9, 2009, the Board issued its decision dismissing that charge because it was not timely
filed with PERB. (Solano County Fair Association (Hinek) (2009) PERB Decision No.
2035-M.)
2

representation under the MMBA and advised him of the elements necessary to correct that
deficiency.
On August 22, 2008, Hinck filed an amended charge. In the amended charge, Hinck
admits that he knew of the Teamsters' decision not to process the grievance not later than
August 2007, but asserts that he refrained from filing a charge with PERB because he was
making further efforts to resolve the matter with the assistance of the International
Brotherhood of Teamsters (International) in Washington, D.C. The amended charge further
alleged that, after August 2007, Hinck tried to contact the Teamsters' attorney, but she did not
return his calls. According to Hinck, a representative of the International promised to set up a
three-way conference call to discuss Hinck' s concerns, but that conference call never took
place.
By letter dated August 28, 2008, the Board agent dismissed the charge on the grounds
that it was not timely filed and for failure to state a prima facie case of breach of the duty of
fair representation.
HINEK'S APPEAL
On appeal, Hinck continues to assert that the charge is timely because he received
assurances from the Teamsters in August 2007 and thereafter that the matter was still open for
discussion and because the Teamsters' attorney had failed to respond to his telephone calls.
Hinck acknowledges, however, that, upon requesting in 2006 that the Teamsters file a
grievance on his behalf for vacation pay and Sunday premium pay, he was told that the
Teamsters was not going to process the grievance.
DISCUSSION
The statute of limitations for filing an unfair practice charge under the MMBA is six
months. (Coachella Valley Mosquito and Vector Control Dist. v. California Public
3

Employment Relations Bd. (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.)5 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. (SEIU, United Healthcare Workers West (Rivera) (2009) PERB Decision No.
2025-M; 	United Teachers
of
Los Angeles (Hopper) (2001) PERB Decision No.
1441;
Los Rios
College Federation
of
Teachers, CFTIAFT (Violett, et al.) (1991) PERB Decision No. 889.)
Thus, the statute
of
limitations begins to run once the employee is aware, or should be aware,
that the union has made a firm decision not to represent him. (California State Employees
Association, Local 1000, SEIU, AFL-CIO, CLC (Sutton) (2003) PERB Decision No. 1553-S.)
Once the statute begins to run, the employee cannot cause it to begin anew by making the same
request over and over again. (Id.; California State Employees' Association (Calloway) (1985)
PERB Decision No. 497-H.) Nor does an employee's complaint to higher-level union officials
about the handling
of
the employee's grievance extend the limitations period. (California
School Employees Association (Spiegelman) (1984) PERB Decision No. 400.)
The facts as alleged by Hinek establish that the Teamsters clearly declined to process a
grievance on his behalf not later than August 2007. Hinek's continued attempts to obtain
assistance by contacting the Teamsters International and the Teamsters' attorney did not
5 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

5
extend the limitations period. The alleged failure of a representative of the International to set
up a conference call as promised did not start the limitations period anew, as Hinek was
already on clear notice that the Teamsters had made a firm decision not to process his
grievance. Therefore, because the charge was filed at least eight months after Hinek was
informed that the Teamsters would not process his grievance, it is untimely and was properly
dismissed.
ORDER
The unfair practice charge in Case No. SF-CO-173-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Neuwald and Wesley joined in this Decision.
5