State Employees Trades Council-United (Chemello) (PERB 1867H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD 	R
ERIC ALAN CHEMELLO,
Charging Party,
V.
STATE EMPLOYEES TRADES COUNCIL-
UNITED,
Res ondent.
Case No. SA-CO-109-H
PERB Decision No. 1867-H
December 14, 2006
Appearances: Eric Alan Chemello, on his own behalf; Leonard Carder by Francisco M.
Ugarte, Attorney, for State Employees Trades Council-United.
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric Alan Chemello (Chemello) of a Board agent's dismissal
(attached) of his unfair practice charge. The charge alleged that the State Employees Trades
Council-United (SETC-U) violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by failing to represent him and discriminating against him.
On appeal, Chemello also raised new allegations of contract violations that were not
raised in the original charge. PERB Regulation 32635(b)2 provides that "[u]nless good cause
is shown, a charging party may not present on appeal new charge allegations or new supporting
evidence." Chemello failed to show good cause for charging new allegations on appeal.
1HEERA is codified at Government Code section 3560, et seq.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

SETC-U seeks an award of attorney's fees and costs as well as a cease and desist order
preventing Chemello from filing another charge. PERB has determined that an award of
attorneys' fees and costs is appropriate where a case is without merit, frivolous, vexatious,
dilatory, pursued in bad faith or otherwise an abuse of process. (Los Angeles Unified School
District (1993) PERB Decision No. 1013, p. 2; Chula Vista City School District (1990) PERB
Decision No. 834, pp. 73-74; see United Professors of California (Watts) (1984) PERB
Decision No. 398-H, p. 2, awarding attorneys' fees where a party acted in defiance of a Board
order; Los Angeles Unified School District (1982) PERB Decision No. 181a, p. 6.) SETC-U's
request for an award of attorney's fees and costs, and for a cease and desist order preventing
Chemello from filing another charge are both denied.
The Board has reviewed the entire record, including, but not limited to, the unfair
practice charge, the first, second and third amended unfair practice charge, the additional
information filed by Chemello on January 30, 2006, SETC-U's responses to Chemello's
original and amended charge, the warning and dismissal letters, Chemello' s appeal and
SETC-U's response to the appeal. The Board finds the Board agent's warning and dismissal
letters to be without prejudicial error3 and adopts them as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SA-CO-109-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
3Although both the warning and dismissal letters erroneously refer to the original
charge being filed on December 8, 2006, in portions of the letter, the charge was originally
filed on December 8, 2005.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT.RELATIONS BOARD
R
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
R
August 25, 2006
Eric Alan Chemello
1614 Ocean Drive
McKinleyville, CA 95519
Re: 	Eric Alan Chemello v. State Employees Trades Council United
Unfair Practice Charge No. SA-CO-109-H
DISMISSAL LETTER
Dear Mr. Chemello:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 8, 2005. A First Amended Charge was filed on
December 29, 2005, and additional information in support of the charge was filed on January
30, 2006. Eric Alan Chemello alleges that the State Employees Trades Council United
(SETCU) violated the Higher Education Employer-Employee Relations Act (HEERA)1 by
failing to represent him, and discriminating against him.2
By the attached letter dated July 31, 2006, General Counsel Robert Thompson indicated to you
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 11, 2006, the
charge would be dismissed. Your subsequent request for an extension was granted.
On August 24, 2006, you filed a Third Amended Charge.
Discussion
In his letter, Mr. Thompson summarized the deficiencies in your charge as follows:
The events described above that occurred more than six months
prior to the filing of this charge on December 8, 2006 are outside
the statute of limitations and must be dismissed as untimely. In
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Prior to an August 2004 layoff, Humboldt State University, a campus in the California
State University (CSU) system, employed you as a Facilities Worker II. SETCU is the
exclusive representative of CSU Bargaining Unit 6 - Skilled Crafts, which includes positions
classified as a Facilities Worker II.

SA-CO-109-H
August 25, 2006
Page 2
addition, your employment with CSUH terminated with your
layoff in August 2004. At that time, SETC-U's obligation to
represent you also terminated. All of the events described in this
letter as well as those described in your charge occurred after the
termination of your employment. During this period SETC-U did
not owe you a duty of fair representation. (Government Code
section 3571.l(e).)
In your Third Amended Charge, you re-allege that SETCU discriminated against you in your
layoff proceedings and concerning your rehire rights. The recent amendment, however,
focuses primarily on allegations that SETCU is defrauding Humboldt State University and the
California State Employees Union (CSEA) by collecting dues from employees and
representing employees in the Skilled Crafts unit who do not perform skilled crafts level work
and who should be included in a bargaining unit represented by CSEA. 3 You further contend
that SETCU has defrauded you by collecting dues from you despite lacking jurisdiction to
represent you, and further that SETCU has committed perjury through its statements in
response to your charge.
Your Third Amended Charge largely concerns a dispute as to the proper unit placement of the
Facilities Worker II classification. The Board has long held that individual employees lack
standing to challenge unit configuration (Riverside Unified School District (1985) PERB
Decision No. 512) or to file a unit modification petition (Riverside Unified School District
(1985) PERB Order No. Ad-148).4 Thus, your charge must be dismissed. Likewise, to the
extent that the charge alleges harm to CSEA, the charge must be dismissed as individuals lack
standing to allege violations of an employee organization's rights. Regents of the University
of California (2006) PERB Decision No. 1804-H; Regents of the University of California
(1993) PERB Decision No. 983-H.)
With respect to the statute of limitations, you assert that you "knew of the conduct underlying
the charge as early as January 17, 2005" and thus a charge filed in June 2005 is timely filed
within the six months statute of limitations period. However, as noted above and in Mr.
Thompson's letter, the instant charge was filed on December 8, 2005, or nearly 11 months
following the date that you admit you had knowledge of the complained-of conduct.5 Thus,
the charge is time barred by HEERA section 3563.2(a) and must be dismissed for this reason.
3 Five CSU bargaining units are represented by the California State University
Employees Union, SEIU Local 2579, an affiliate of CSEA. One of these units is CSU
Bargaining Unit 5 - Operations-Support Services.
4 On June 30, 2005, a unit modification petition that you filed concerning this same
dispute was dismissed in PERB Case No. LA-UM-746-H.
5 You did file a related, but separate, charge in June 2005. That charge (PERB Unfair
Practice Charge No. SA-CE-238-H) was filed against CSU on June 29, 2005. However, the
filing date of a separate action does not establish the filing date of the matter at issue here.

SA-CO-109-H
August 25, 2006
Page 3
Therefore, I am dismissing the charge based on the facts and reasons set forth above as well as
those contained in Mr. Thompson's July 31, 2006 letter.
Right to Appeal
Pursuant to PERB Regulations,6 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.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(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
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
(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. (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.) 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. (Regulation
32135(c).)
6 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-109-H
August 25, 2006
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. (Regulation 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,
ROBIN WESLEY
Acting General Counsel
By R
Les Chisholm
Regional Director
Attachments
cc: Hina Shah

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
R
Office of the General Counsel
103118th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax:(916)327-6377
R
July 31, 2006
Eric Alan Chemello
1614 Ocean Drive
McKinleyville, CA 95519
Re: 	Eric Alan Chemello v. State Employees Trades Council United
Unfair Practice Charge No. SA-CO-109-H
WARNING LETTER
Dear Mr. Chemello:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 8, 2005. Eric Alan Chemello alleges that the State
Employees Trades Council United violated the Higher Education Employer-Employee
Relations Act (HEERA)1 by failing to represent him, and discriminating against him.
Prior to an August 2004 layoff, California State University Humboldt (CSUH) employed you
as a "Facilities Worker II." The State Employees Trades Council United (SETC-U)
represented you while employed as a Facility Worker II in Bargaining Unit 6. CSUH defines
the Facility Worker II position in the following manner:
Under general supervision, the Facilities Worker II independently
performs a wider range of more complex semi-skilled and basic
skilled facilities and system maintenance, repair and renovation
work; however, the work of a Facilities Worker II does not
require full journey-level skills ... "
On April 8, 2004, CSUH notified several Unit 6 members of future planned lay-offs. CSUH
did not meet with SETC-U prior to the lay-off notices. SETC-U filed grievances on behalf of
the affected employees and participated in impact negotiations in Long Beach, in a committee
format, resulting in a Settlement Agreement, dated December 17, 2004. Following discussions
between the Union and CSUH, all but two lay-offs were averted. Eric Chemello and Andrew
Betts were set for lay-off in July 2004.
Fellow "Facility Worker II" Colin Livasy had fewer seniority points than you but was not laid
off. 	CSUH rescinded Livasy's lay-off after a successful MOU, Article 29.8 challenge, based
on his documented journey-level skill sets. You also wrote a letter to CSUH's President
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
'

SA-CO-109-H
July 31, 2006
Page 2
requesting you be passed over for lay-off because of your specialized skills and abilities,
however, you were unsuccessful.
A copy of the December 2004 Settlement Agreement was discussed with all potential lay-off
candidates by Craig West, SETC-U Executive Board Member in or around January 2005.
Chemello and Andrew Betts were laid off in August 2004, but in accordance with the
Settlement Agreement, you were granted a right of first refusal for general maintenance work
at CSUH and placed on a re-hire list for five years.
Following the lay-offs, you applied for several positions at CSUH, but have not been rehired.
The jobs you have applied for are either outside Bargaining Unit 6 or are higher classification
positions and not included in the right of first refusal agreement. In January 2005, you applied
for, but were not selected for an available Carpenter I position. CSUH re-hired Clark Keeney
as a Carpenter I for the 30 day position. When laid off, Keeney was classified as a Facility
Worker I, Temporary and was junior to you. In response to a SETC-U inquiry by Robert
Herriot, SETC-U Bargaining Representative, CSUH responded that the position Keeney was
rehired for required journey level expertise and Keeney met the necessary skill set.
On May 25, 2005, you filed a Level III grievance with the President of CSUH regarding the
Keeney re-hire. On June 7, 2005, CSUH responded to the grievance and advised you had no
standing to file because you were not currently employed by CSUH. You assert you are a
Union Steward, and as such, have standing to file a grievance. You notified SETC-U of the
grievance you had filed in or around June 2005. You then filed Unfair Practice Charge No.
SA-CO-78-H against the SETC-U regarding these matters with PERB on June 29, 2005. That
charge was dismissed on October 14, 2005 and the dismissal was not appealed to the Board
itself. To this date, you have not been re-hired at CSUH. You filed this charge on December
8, 2005.
You allege in general terms that during the fall of 2005, SETC-U has not actively enforced its
agreement with CSUH. This includes SETC-U's failure to challenge CSUH's use of students
to perform bargaining unit work such as gardening, to allow positions to remain unfilled, and
allow CSEA represented employees to perform bargaining unit work.
Based on the information above, this charge does not state a prima facie case for the reasons
that follow.
HEERA section 3563.2(a) 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 oflimitations 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)

SA-CO-109-H
July 31, 2006
Page 3
PERB Decision No. 1024; State of California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.)
The events described above that occurred more than six months prior to the filing of this
charge on December 8, 2006 are outside the statute of limitations and must be dismissed as
untimely. In addition, your employment with CSUH terminated with your layoff in August
2004. At that time, SETC-U's obligation to represent you also terminated. All of the events
described in this letter as well as those described in your charge occurred after the termination
of your employment. During this period SETC-U did not owe you a duty of fair
representation. (Government Code section 3571.l(e).)
For these reasons the charge, as presently written, does not state a prima facie case. lfthere
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 August 11, 2006, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
R
Robert Thompson
General Counsel