California Faculty Association (Onkvisit) (PERB 1947H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAK ONKVISIT,
Charging Party,
V.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
Case No. SF-CO-163-H
PERB Decision No. 	1947-H
February 29, 2008
Appearance: 	Sak Onkvisit, on his own behalf
Before Neuwald, Chair; Wesley and Rystrom, Members.
DECISION
NEUWALD, Chair: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Sak Onkvisit (Onkvisit) of a Board agent's dismissal of his
unfair practice charge. The charge alleged that the California Faculty Association (CF A)
violated the Higher Education Employer-Employee Relations Act (HEERA)1 by breaching its
duty of fair representation. 	Onkvisit alleged that this conduct constituted a violation of
Section 3 571.1.
The Board reviewed the entire record in this matter and based upon the discussion
below, hereby affirms the Board agent's dismissal.
FACTS
The California State University (CSU) employed Onkvisit as a tenured faculty member
in the Marketing Department in the College of Business at its San Jose State University
1HEERA is codified at Government Code section 3560, et seq. Unless otherwise noted,
all statutory references are to the Government Code.

campus. 	CFA exclusively represented the faculty members
of
CSU. As such, Onkvisit is
represented by CF
A.
In 2003, Onkvisit refused to allow a student the opportunity to make up an exam. The
student alleged that he missed the exam because
of
a motorcycle accident which Onkvisit
disputes. 	Subsequently, Onkvisit failed the student for missing the exam. The Student
Fairness Committee (SFC) determined that the student
be
given a make-up exam. 	Onkvisit
rejected the SFC's non-binding recommendation. Associate Dean, Nancie Fimbel (Fimbel),
informed Onkvisit that she offered the student an opportunity to take a make-up exam. 	She
also informed Onkvisit that she would convene an ad-hoc committee to determine the student's
grade. She requested the student's grades from Onkvisit. Onkvisit refused to tum over the
grades. 	Associate Dean Fimbel renewed her request and Onkvisit refused again. In April
2005, Onkvisit was given a Notice
of
Pending Disciplinary Action that imposed a demotion
from a full association professor for the 2005-06 academic year for his failure to turn over the
grades.
On May 27, 2005, Onkvisit submitted a grievance to CFA. In a letter dated April 17,
2006, CF A declined to submit Onkvisit' s grievance to arbitration concluding that "[b ]ased
upon the information in the case record, the administration's request to cooperate in a make-up
test for an injured student was reasonable." In a letter dated April 26, 2006, Onkvisit appealed
CF A's decision. On May 16, 2006, CF A sent a letter to Onkvisit affirming the decision not to
arbitrate his grievance.
Onkvisit filed an unfair practice charge on May 15, 2007. On September 12, 2007, the
Board agent issued a warning letter finding the charge untimely. 	Onkvisit did not submit
either an amended charge or a request for withdrawal. The Board agent dismissed the unfair
practice charge on September 21, 2007.
2

DISCUSSION
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.)2 A 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 oflnsurance) (1997) PERB Decision No.
1197-S.)
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 process a grievance over a recurring issue do not start
the limitations period anew. 	(California State Employees' Association (Calloway) (1985)
PERB Decision No. 497-H.)
In
:May
2006, CF A informed Onkvisit that it would no longer pursue his grievance. As
such, the statute
of
limitations began in May 2006 and expired in November 2006. 	Onkvisit
filed the present charge in May 2007, nearly a year later. 	Therefore, the Board finds the charge
untimely.3
It is appropriate to take guidance from cases interpreting California labor relations
statutes with parallel provisions. 	(Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
3Onkvisit argues that the Board agent's dismissal should be reversed because the appeal
of his demotion is pending before the State Personnel Board. We find his pending appeal is
irrelevant to our determination that his unfair practice charge against the CF A is untimely.
3

ORDER
The unfair practice charge in Case No. SF-C0-163-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Wesley and Rystrom joined in this Decision.
4