Service Employees International Union-United Healthcare Workers West (Scholink) (PERB 2172M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RON SCHOLINK,
Charging Party, 	Case No. SF-CO-221-M
V . 	PERB Decision No. 2172-M
March 1, 2011	SEIU-UNITED HEALTHCARE WORKERS
WEST,
Respondent.
Appearance: Ron Scholink, on his own behalf.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Ron Scholink (Scholink) of a Board agent's dismissal
(attached) of his unfair practice charge. The charge alleged that SEIU-United Healthcare
Workers West violated its duty of fair representation under the Meyers-Milias-Brown Act
(MMBA) when it executed a letter of understanding (LOU) with Scholink's employer, the
Salinas Valley Memorial Healthcare System, that required cardiac sonographers, including
Scholink, to obtain and maintain Pediatric Registry with the American Registry for Diagnostic
Medical Sonography as a condition of continued employment. The Board agent dismissed the
charge solely on the basis that it was not timely filed.
The Board has reviewed the dismissal and the record in light of Scholink's appeal and
the relevant law. Based on this review, the Board finds the Board agent's warning and
The MMBA is codified at Government Code section 3500 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RON SCHOLINK,
Charging Party,
V.
SEIU-UNITED HEALTHCARE WORKERS
WEST,
Respondent.
Case No. SF-CO-221-M
PERB Decision No. 2172-M
March
1,
2011
Appearance: Ron Scholink, on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.	Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Ron Scholink (Scholink)
of
a Board agent's dismissal
(attached)
of
his unfair practice charge. The charge alleged that SEIU-United Healthcare
Workers West violated its duty
of
fair representation under the Meyers-Milias-Brown
Act
(MMBA) 1 when it executed a letter
of
understanding (LOU) with Scholink's employer, the
Salinas Valley Memorial Healthcare System, that required cardiac sonographers, including
Scholink, to obtain and maintain Pediatric Registry with the American Registry for Diagnostic
Medical Sonography as a condition
of
continued employment. The Board agent dismissed the
charge solely on the basis that it was not timely filed.
The Board has reviewed the dismissal and the record in light of Scholink's appeal and
the relevant law. Based on this review, the Board finds the Board agent's warning and
1 The MMBA is codified at Government Code section 3500 et seq.

dismissal letters to be a correct statement of the law and well-reasoned, and therefore adopts
them as the decision of the Board itself, as supplemented by the discussion below.
DISCUSSION
Scholink filed the instant unfair practice charge on March 9, 2010. The charge alleged
that Scholink first learned of the execution of the LOU on September 8, 2009. The warning
letter concluded that the charge was untimely because March 8, 2010 was the last day of the
six-month statute of limitations period.
Scholink filed an amended charge that alleged he heard from an unnamed management
employee on September 10, 2009 "that an agreement was made where I would need to pass the
pediatric registry exam." The amended charge also included the original allegation that
Scholink first learned of the LOU on September 8, 2009. Finding that the amended charge
failed to cure the timeliness defect, the Board agent dismissed the charge.
On appeal, Scholink claims that the September 8, 2009 date in the original charge was
incorrect and that he actually learned of the LOU for the first time on September 10, 2009.
However, nowhere in the amended charge did Scholink indicate that he was correcting an
erroneous date in the original charge. Because Scholink had sufficient opportunity to correct
his purported mistake before the charge was dismissed, we find no good cause to consider this
claim on appeal. (See PERB Reg. 32635(b); Regents of the University of California (2006)
PERB Decision No. 1851-H ["The purpose of PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence to the Board agent in the first
The amended charge actually gave the date as September 10, 2010, but the attached
documentation shows that the relevant events took place in 2009.
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32635(b) states: "Unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence."
2
dismissal letters to be a correct statement
of
the law and well-reasoned, and therefore adopts
them as the decision
of
the Board itself; as supplemented by the discussion below.
DISCUSSION
Scholink filed the instant unfair practice charge on March 9, 2010. The charge alleged
that Scholink first learned
of
the execution
of
the LOU on September
8,
2009. The warning
letter concluded that the charge was untimely because March 8, 2010 was the last day
of
the
six-month statute
of
limitations period.
Scholink filed an amended charge that alleged he heard from an unnamed management
employee on September 10, 2009 "that an agreement was made where I would need to
pass
the
pediatric registry exam."2 The amended charge also included the original allegation
that
Scholink first learned
of
the LOU on September
8,
2009. Finding that the amended charge
failed to cure the timeliness defect, the Board agent dismissed the charge.
On appeal, Scholink claims that the September
8,
2009 date in the original charge was
incorrect and that he actually learned
of
the LOU for the first time on September I 0,
2009.
However, nowhere in the amended charge did Scholink indicate that he was correcting
an
erroneous date in the original charge. Because Scholink had sufficient opportunity to correct
his purported mistake before the charge was dismissed, we find no good cause to consider this
claim on appeal. (See PERB Reg. 32635(b);3 Regents
of
the University
of
California (2006)
PERB Decision No. 1851-H ["The purpose
of
PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence to the Board agent in the first
The amended charge actually gave the date as September 10, 2010, but the attached
documentation shows that the relevant events took place in 2009.
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32635(b) states: "Unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence."
2

instance, so that the Board agent can fully investigate the charge prior to deciding whether to
issue a complaint or dismiss the case."].)
ORDER
The unfair practice charge in Case No. SF-CO-221-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Wesley joined in this Decision.
w3
instance, so that the Board agent can fully investigate the charge prior to deciding whether to
issue a complaint or dismiss the case."].)
ORDER
The unfair practice charge in Case No. SF-C0-221-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
April 22, 2010
Ron Scholink
Re: 	Ron Scholink v. SEIU-United Healthcare Workers West
Unfair Practice Charge No. SF-CO-221-M
DISMISSAL LETTER
Dear Mr. Scholink:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 9, 2010. Ron Scholink (Mr. Scholink or Charging Party)
alleges that SEIU-United Healthcare Workers West (SEIU or Respondent) violated the
Meyers-Milias-Brown Act (MMBA)' by breaching the duty of fair representation.
Charging Party was informed in the attached Warning Letter dated March 30, 2010, that the
above-referenced charge did not state a prima facie case. More specifically, you were
informed that the charge was filed outside the applicable six-month limitations period, and thus
must be dismissed as untimely filed. 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. You were further advised that, unless you amended the charge to
state a prima facie case or withdrew it prior to April 8, 2010, the charge would be dismissed.
On April 6, 2010, Charging Party filed a First Amended Charge. However, in the First
Amended Charge, Charging Party still asserts, in relevant part, that he was first informed of
SEIU's agreement to a Letter of Understanding (LOU) with the Salinas Valley Memorial
Hospital concerning an exam requirement on September 8, 2009." As explained more fully in
the Warning Letter, it is this factual allegation that formed the basis for the conclusion that the
charge was untimely filed.
Mr. Scholink also includes the following in his First Amended Charge, stating verbatim as
follows:
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found on the Internet at www.perb.ca.gov.
SEIU's agreement to the LOU, without input from affected employees, is the central
issue in Mr. Scholink's unfair practice charge.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
April 22, 2010
Ron Scholink
13293 Corte Lindo
Salinas, CA 93908
Re: 	Ron Scholink
v.
SEIU-United Healthcare Workers West
Unfair Practice Charge No. SF-CO-221-M
DISMISSAL LETTER
Dear Mr. Scholink:
The above-referenced unfair practice charge was filed with the Public Employment-Relations
Board (PERB or Board) on March 9, 2010. Ron Scholink (Mr. Scholink or Charging Party)
alleges that SEID-United Healthcare Workers West (SEIU or Respondent) violated the
Meyers-Milias-Brown Act (MMBA)1 by breaching the duty
of
fair representation.
Charging Party was informed in the attached Warning Letter dated March 30, 2010, that the
above-referenced charge did not state a prima facie case. More specifically, you were
informed that the charge was filed outside the applicable six-month limitations period,
and
thus
must be dismissed
as
untimely filed. 	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. You were further advised that, unless you amended the charge to
state a prima facie case or withdrew it prior to April
8,
2010, the charge would be dismissed.
On April 6, 2010, Charging Party filed a First Amended Charge. However, in the First
Amended Charge, Charging Party still asserts, in relevant part, that he was first informed
of
SEIU' s agreement to a Letter
of
Understanding (LOU) with the Salinas Valley Memorial
Hospital concerning an exam requirement on September 8, 2009.2 As explained more fully in
the Warning Letter, it is this factual allegation that formed the basis for the conclusion
that
the
charge was untimely filed.
Mr. Scholink also includes the following in his First Amended Charge, stating verbatim as
follows:
1 The MMBA is codified at Government Code section 3500 et seq. The text
of the
MMBA and PERB Regulations may be found on the Internet at www.perb.ca.gov.
2 SEIU's agreement to the LOU, without input from affected employees, is the central
issue in Mr. Scholink's unfair practice charge.

SF-CO-221-M
April 22, 2010
Page 2
On Sept. 10, 2010[*] I was told in passing by management that an
agreement was made where I would need to pass the pediatric
registry exam. At the I didn't realize the ramifications of this or
that LOU's were made. After further investigation I asked about
this LOU which made it an official agreement between the union
and svmh. From the correspondence from Ann Kern on Sept. 16,
2010 - I realized the full impact of this WRITTEN agreement
between management and 2 stewards who have no knowledge or
background of what I do professionally. I was purposely kept out
of this meeting, even though I was a steward and the expert in my
field, because of previous interaction with Ms Nunez and Ms
Benson in regards on how the union could improve. This was
done in retaliation - by making secret agreements with
management with no input from me.
The above-quoted passage from the statement of the First Amended Charge appears to
constitute an attempt by Charging Party to argue that the knowledge he acquired on September
8, 2009 should not render the charge untimely filed. Charging Party appears to assert that,
because he later acquired additional information about the agreement, it was only after
September 8, 2009 that he understood the effects or legal significance of the LOU. However,
the Board has long held that a charging party's failure to understand the legal significance of
actions until later does not excuse an otherwise untimely filing. (Davis Teachers Association,
CTA/NEA (Heffner) (1995) PERB Order No. Ad-270; see, also, Orange County Fire Authority
(2008) PERB Decision No. 1968-M and County of San Diego (Health & Human Services)
(2009) PERB Decision No. 2042-M.)
Further, as noted in the Warning Letter, 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 requirement to establish the
timeliness of a charge cannot be waived by the Board. (Davis Teachers Association, CTA/NEA
(Heffner), supra, PERB Order No. Ad-270.)
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above, as
well as in the March 30, 2010 Warning Letter.
From the context, it appears that the dates referenced in this paragraph are in 2009
rather than 2010.
SF-CO-221-M
April 22, 20 I 0
Page 2
On Sept. I 0, 2010[ 3] I was told in passing by management that an
agreement was made where I would need to pass the pediatric
registry exam. At the I didn't realize the ramifications of this or
that LOU's were made. After further investigation I asked about
this LOU which made it an official agreement between the union
and svmh. From the correspondence from Ann Kern on Sept. 16,
2010 - I realized the full impact of this WRITTEN agreement
between management and 2 stewards who have no knowledge or
background of what I do professionally. I was purposely kept out
of this meeting, even though I was a steward and the expert in my
field, because of previous interaction with Ms Nunez and Ms
Benson in regards on how the union could improve. This was
done in retaliation - by making secret agreements with
management with no input from me.
The above-quoted passage from the statement of the First Amended Charge appears to
constitute an attempt by Charging Party to argue that the knowledge he acquired on September
8, 2009 should not render the charge untimely filed. Charging Party appears to assert that,
6ecause he later acquired additional information about the agreement, it was only after
September 8, 2009 that he understood the effects or legal significance of the LOU. However,
the Board has long held that a charging party's failure to understand the legal significance of
actions until later does not excuse an otherwise untimely filing. 	(Davis Teachers Association,
CTAINEA (Heffner) (1995) PERB Order No. Ad-270; see, also, Orange County Fire Authority
(2008) PERB Decision No. 1968-M and County of San Diego (Health & Human Services)
(2009) PERB Decision No. 2042-M.)
Further, as noted in the Warning Letter, 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 requirement to establish the
timeliness of a charge cannot be waived by the Board. (Davis Teachers Association, CTAINEA
(Heffner), supra, PERB Order No. Ad-270.)
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above, as
well as in the March 30, 2010 Warning Letter.
From the context, it appears that the dates referenced in this paragraph are in 2009
rather than 2010.

SF-CO-221-M
April 22, 2010
Page 3
Right to Appeal
Pursuant to PERB Regulations, " Charging Party 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. (Cal. Code Regs, tit. 8, $ 32635, subd. (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.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB 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. (Cal. Code
Regs, tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
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. (Cal. Code Regs, tit. 8, $ 32635, subd. (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 Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, $ 32135, subd. (c).)
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
SF-CO-221-M
April 22, 2010
Page 3
Right to Appeal
Pursuant to PERB Regulations,4 Charging Party 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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8,
§§
32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before
the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB 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. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
32090
and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
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. (Cal. Code Regs, tit. 8, § 32635, subd. (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 Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001etseq.

SF-CO-221-M
April 22, 2010
Page 4
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. (Cal. Code Regs, tit. 8, $ 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
Les Chisholm
Division Chief
Attachment
cc: Vincent Harrington, Jr.
SF-CO-221-M
April 22, 2010
Page 4
By'=-~
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. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
Les Chisholm
Division Chief
Attachment
cc: Vincent Harrington, Jr.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 30, 2010
Ron Scholink
Re: 	Ron Scholink v. SEIU-United Healthcare Workers West
Unfair Practice Charge No. SF-CO-221-M
WARNING LETTER
Dear Mr. Scholink:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 9, 2010. Ron Scholink (Mr. Scholink or Charging Party)
alleges that SEIU-United Healthcare Workers West (SEIU or Respondent) violated the Ralph
C. Dills Act (Dills Act).
Mr. Scholink is employed by the Salinas Valley Memorial Hospital (Hospital) as an "echo
tech," in a bargaining unit exclusively represented by SEIU. According to PERB records, the
Hospital is a local "public agency" as defined in Government Code section 3501(c).
Accordingly, Mr. Scholink is a "public employee" as defined in Government Code section
3501(d), and the instant charge is appropriately analyzed pursuant to the provisions of the
Meyers-Milias-Brown Act (MMBA),' rather than the Dills Act, as it is the MMBA that
provides collective bargaining rights to employees of local public agencies.
In his charge, Mr. Scholink alleges that SEIU failed to fairly represent him when, in August
2009, SEIU entered into a Letter of Understanding (LOU) with the Hospital that requires
certain employees, including Mr. Scholink, to pass an initial examination and satisfy ongoing
requirements in order to maintain Pediatrics Registry with the American Registry for
Diagnostic Medical Sonography. Mr. Scholink further alleges that this LOU was entered into
without the prior knowledge of or input from the affected employees, despite the fact that Mr.
The Dills Act is codified at Government Code section 3512 et seq. The Dills Act
provides collective bargaining rights to "state employees," as defined in Government Code
section 3513(c).
PERB is currently conducting a decertification election involving the Hospital and
SEIU in PERB Case No. SF-DP-294-M.
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.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 30, 2010
Ron Scholink
13293 Corte Lindo
Salinas, CA 93908
Re: 	Ron Scholink
v.
SEIU-United Healthcare Workers West
Unfair Practice Charge No. SF-CO-221-M
WARNING LETTER
Dear Mr. Scholink:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March
9,
2010. Ron Scholink (Mr. Scholink or Charging Party)
alleges that SEID-United Healthcare Workers West (SEIU or Respondent) violated the Ralph
C.
Dills Act (Dills Act). 1
Mr. Scholink is employed by the Salinas Valley Memorial Hospital (Hospital) as an "echo
tech," in a bargaining unit exclusively represented by SEIU. According to PERB records, the
Hospital is a local "public agency" as defined in Government Code section 350l(c).2
Accordingly, Mr. Scholink is a "public employee" as defined in Government Code section
3501 (d), and the instant charge is appropriately analyzed pursuant to the provisions
of
the
Meyers-Milias-Brown Act (MMBA),3 rather than the Dills Act, as it is the MMBA that
provides collective bargaining rights to employees
of
local public agencies.
In his charge, Mr. Scholink alleges that SEIU failed to fairly represent him when, in
August
2009, SEIU entered into a Letter
of
Understanding (LOU) with the Hospital that requires
certain employees, including Mr. Scholink, to pass an initial examination and satisfy ongoing
requirements in order to maintain Pediatrics Registry with the American Registry for
Diagnostic Medical Sonography. Mr. Scholink further alleges that this LOU was entered into
without the prior knowledge
of
or input from the affected employees, despite the fact
that
Mr.
1 The Dills Act is codified at Government Code section 3512 et seq. The Dills
Act
provides collective bargaining rights to "state employees," as defined in Government
Code
section 3513(c).
2 PERB is currently conducting a decertification election involving the Hospital and
SEIU in PERB Case No. SF-DP-294-M.
3 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.

SF-CO-221-M
March 30, 2010
Page 2
Scholink serves as an SEIU steward and had expressed concern in the past to SEIU
representatives about such requirements being imposed.
Thus, the charge is properly considered as an allegation that SEIU breached its duty of fair
representation." While the MMBA does not expressly impose a statutory duty of fair
representation upon employee organizations, the courts have held that "unions owe a duty of
fair representation to their members, and this requires them to refrain from representing their
members arbitrarily, discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995)
35 Cal.App.4th 1213.)
However, a charging party's burden includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) 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.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that the six-month statute of limitations period provided by the Educational Employment
Relations Act (EERA)" "is to be computed by excluding the day the alleged misconduct took
place and including the last day." Thus, where the school employer adopted a proposal on
June 20, 1984, the Board calculated that "the six-month period started on June 21, 1984, the
day after the school board adopted the proposal, and ended at the close of business on
December 20, 1984." (Ibid.; see also California State University, Fullerton (1986) PERB
Decision No. 605-H.) The same method of calculation should be applied to the statute of
limitations under the MMBA.
* Where a charging party fails to allege that any specific section of the Government
Code has been violated, a Board agent, upon a review of the charge, may determine under what
legal theory the charge should be analyzed. (Los Banos Unified School District (2007) PERB
Decision No. 1935.)
EERA, found at Government Code section 3540 et sq., provides for collective
bargaining rights of public school employees.
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.)
SF-CO-221-M
March 30, 2010
Page 2
Scholink serves as an SEIU steward and had expressed concern in the past to SEIU
representatives about such requirements being imposed.
Thus, the charge is properly considered as an allegation that SEIU breached its duty
of
fair
representation.4 While the MMBA does not expressly impose a statutory duty
of
fair
representation upon employee organizations, the courts have held that "unions owe a duty
of
fair representation to their members, and this requires them to refrain from representing their
members arbitrarily, discriminatorily, or in bad faith." (Hussey
v.
Operating Engineers (1995)
35 Cal.App.4th 1213.)
However, a charging party's burden includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) 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.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that the six-month statute
of
limitations period provided by the Educational Employment
Relations Act (EERA)5 "is to be computed by excluding the day the alleged misconduct took
place and including the last day." Thus, where the school employer adopted a proposal
on
June 20, 1984, the Board calculated that "the six-month period started on June 21, 1984, the
day after the school board adopted the proposal, and ended at the close
of
business on
December 20, 1984." (Ibid.; see also California State University, Fullerton (1986)
PERB
Decision No. 605-H.) The same method
of
calculation should be applied to the statute
of
limitations under the MMBA. 6
Where a charging party fails to allege that any specific section
of
the Government
Code has been violated, a Board agent, upon a review
of
the charge, may determine
under
what
legal theory the charge should be analyzed. (Los Banos Unified School District (2007) PERB
Decision No. 1935.)
5 EERA, found at Government Code section 3540 et sq., provides for collective
bargaining rights of public school employees.
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.)

SF-CO-221-M
March 30, 2010
Page 3
As noted earlier, the instant charge was filed on March 9, 2010. ' In his statement of the
charge, Mr. Scholink specifically alleges that he acquired knowledge of the August 2009 LOU
on September 8, 2009. Based on these facts, the six-month limitation period extended from
September 9, 2009 through and including March 8, 2010. Thus, the charge is filed beyond the
applicable six-month limitation period and PERB lacks authority to issue a complaint in this
matter.
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, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before April 8, 2010, PERB will
dismiss your charge. If you have any questions, please call me at the above telephone number.
Les Chisholm
Division Chief
"A document is "filed" on the date the document is actually received by PERB.
(PERB Regulation 32135.)
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
SF-CO-221-M
March 30, 2010
Page 3
As noted earlier, the instant charge was filed on March 9, 2010.7 In his statement of the
charge, Mr. Scholink specifically alleges that he acquired knowledge of the August 2009 LOU
on September 8, 2009. Based on these facts, the six-month limitation period extended from
September 9, 2009 through and including March 8, 2010. Thus, the charge is filed beyond the
applicable six-month limitation period and PERB lacks authority to issue a complaint in this
matter.
For these reasons the charge, as presently written, does not state a prima facie case. 8 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeied First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of 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 an amended charge or withdrawal is not filed on or before April 8, 2010, PERB will
dismiss your charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief
7 A document is "filed" on the date the document is actually received by PERB.
(PERB Regulation 32135.)
8 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)