American Federation of State, County and Municipal Employees (Owens) (PERB 1974H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VIVIAN OWENS,
Charging Party,
V .
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
Respondent.
Case No. SF-CO-162-H
PERB Decision No. 	1974-H
August 29, 2008
Appearance: The Revelation Law Finn by Melanie D. Popper, Attorney, for Vivian Owens.
Before Neuwald, Chair; McKeag and Rystrom, Members.
DECISION
NEUW ALD, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Vivian Owens (Owens) to an administrative law
judge's (ALJ) proposed decision. 	The charge alleged that the American Federation of State,
County and Municipal Employees (AFSCME) violated the Higher Education Employer
Employee Relations Act (HEERA)1 by breaching its duty of fair representation. 	Owens
alleged that this conduct constituted a violation of Section 3 571.1.
We reviewed the entire record in this matter and affirm the ALJ' s dismissal because the
unfair practice charge was not timely filed.2unfair practice charge was not timely filed.
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2Owens did not except to the ALJ' s proposed decision concerning her allegation that
AFSCME breached its duty of fair representation. 	Therefore, we do not address the ALJ's
analysis and conclusion regarding this issue.
H
"

BACKGROUND
The University of California hired Owens as a custodian at the Lawrence Berkeley
National Laboratory (Laboratory) in June 2001. AFSCME exclusively represented the
custodians at the University of California. As such, Owens is represented by AFSCME.
We only examine those facts pertinent to the unfair practice charge. 	On November 21,
2005, the Laboratory issued Owens a 5-day suspension without pay. Subsequently, Owens
requested representation and that AFSCME file a grievance on her behalf. On December 28,
2005, Owens received a phone call from one AFSCME representative stating that a grievance
would not be filed. 	Fifteen minutes later, Owens received a phone call from another AFSCME
representative who stated a grievance would be filed. 	A grievance was filed on December 22,
2005, as evidenced by the Laboratory's stamp in the Employee/Labor Relations Human
Resources Department. On January 11, 2006, the Laboratory determined that the discipline
was warranted. An AFSCME representative telephoned the next day and informed Owens that
a grievance would not be pursued. Four days later, on January 16, 2006, the same AFSCME
representative sent a letter reiterating that a grievance would not be pursued. Owens filed the
unfair practice charge on August 25, 2006. In the proposed decision, the ALJ dismissed the
charge as untimely.
OWENS' EXCEPTIONS
On July 25, 2007, Owens filed her exceptions arguing that she timely filed her unfair
practice charge. Owens claims that there was no evidence suggesting that she received notice
that AFSCME would no longer pursue her grievance. Additionally, Owens claims that she
timely filed her charge with PERB on June 19, 2006, as evidenced by a proof of service with
said date. 3
The proof of service was first introduced in her exceptions.
2	2
'The proof of service was first introduced in her exceptions.

DISCUSSION
First, we address Owens' newly presented supporting evidence, the June 19, 2006,
proof of service. PERB Regulation4 32635(b) precludes a charging party from raising new
allegations or new supporting evidence on appeal without good cause. (Regents of the
University of California (1998) PERB Decision No. 1271-H.) Owens did not produce the
June 19, 2006, proof of service at the hearing as evidenced by the fact that there is no mention
of the June 19, 2006, proof of service in the hearing transcript nor is it an exhibit. Yet, this
document was known to Owens at the time of hearing as her signature is on the document. In
her appeal, Owens fails to demonstrate good cause for the presentation of new supporting
evidence on appeal and nothing in the document filed related to the appeal indicates good
cause. Therefore, the Board does not consider this evidence.
We now turn to Owens' timeliness issue. 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.) 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 of
Insurance) (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
4PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
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r
*PERB regulations are codified at California Code of Regulations, title 8, section
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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 does not start the
limitations period anew. 	(California State Employees' Association (Calloway) (1985) PERB
Decision No. 497-H.)
Owens alleges that there was "no evidence suggesting that Ms. Owens actually received
any such notice or on or about that time." The ALJ credited AFSCME's representatives
testimony over Owens in regards to receiving notice that AFSCME did not intend to pursue her
grievance further. 	The ALJ reasoned:
The history of interactions between Owens and the Laboratory
and with AFSCME indicate that Owens was persistent in pursing
her claims and demands for information. Thus I do not believe
that Owens had only two telephone conversations with Grabelle.
Grabelle' s January 16 letter reminds Owens of the earlier
conversation regarding AFSCME's decision not to pursue the
grievance, so as to corroborate the January 12 call. I found
Grabelle to be a credible witness without any apparent motive to
fabricate. 	I conclude that Grabelle wrote the January 16 letter to
confirm the content of the parties' verbal communications and to
document the fact that AFSCME had informed Owens of its
reasons for not pursing the grievance. 	Grabelle testified she
confirmed the accuracy of Owens' mailing address with her.
While the Board is required to consider the entire record, including the totality of
testimony offered, and is free to draw its own and perhaps contrary inferences from the
evidence presented, it will afford deference to the ALJ's findings of fact which incorporate
credibility determinations. (Santa Clara Unified School District (1979) PERB Decision
No. 104; Los Angeles Unified School District (1988) PERB Decision No. 659.) Here, the
record supports the ALJ' s findings that Owens was notified that AFSCME would not pursue
her grievance at the latest, January 16. As such, the statute of limitations began in January
2006 and expired in July 2006. 	Owens filed the present charge on August 25, 2006, as
4	4

evidenced by PERB's receipt stamp on the charge. Therefore, the Board finds the unfair
practice charge is untimely and dismisses both the charge and the complaint.
ORDER
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The unfair practice charge and complaint in Case No. SF-C0-162-H is hereby
DISMISSED WITHOUT LEA VE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
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