Nevada Irrigation District (PERB 2052M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE
COUNTY AND MUNICIPAL EMPLOYEES
LOCAL 146, AFL-CIO,
Charging Party,
V.
NEV ADA IRRIGATION DISTRICT,
Respondent.
Case No. SA-CE-496-M
PERB Decision No. 2052-M
July 23, 2009
Appearances: 	Beeson, Tayer & Bodine by Peter McEntee, Attorney, for American Federation
of
State County and Municipal Employees Local 146, AFL-CIO; Minasian, Spruance, Meith,
Soares & Sexton by Dustin C. Cooper, Attorney, for Nevada Irrigation District.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
NEUW ALD, Member: 	This case is before the Public Employment Relations
Board
(PERB or Board) on appeal by the American Federation
of
State County and Municipal
Employees Local 146, AFL-CIO (AFSCME)
of
a Board agent's dismissal (attached)
of
its
unfair practice charge. The charge alleged that the Nevada Irrigation District (District)
violated the Meyers-Milias-Brown Act (MMBA) 1 by refusing to process or arbitrate a
grievance concerning the termination
of
employee Gary Stoddard.
The Board reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the amended charge, the District's position statements, the Board
agent's warning and dismissal letters, AFSCME's appeal, and the District's response. 	Based
1MMBA is codified at Government Code section 3500 et seq.

on this review, the Board finds the Board agent's warning and dismissal letters to be a correct
statement
of
the law and well reasoned, and therefore adopts them as the decision
of
the Board
itself, subject to the discussion below.
DISCUSSION
Timeliness
AFSCME argues for the first time on appeal that the statute
of
limitations should be
tolled. The District responds that the Board cannot consider this argument because it was not
presented to the Board agent. 	The District relies on PERB Regulation 32635, subdivision (b ),2
which states in full: 	"Unless good cause is shown, a charging party may not present on appeal
new charge allegations or new supporting evidence." PERB Regulation 32635, subdivision (b)
does not apply here. As the Board stated in South San Francisco Unified School District
(1990) PERB Decision No. 830, "[t]he 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
instance, so that the Board agent can fully investigate the charge prior to deciding whether to
issue a complaint or dismiss the case." AFSCME's amended charge alleged that the charge
was timely and presented evidence in support
of
that allegation. AFSCME's equitable tolling
argument on appeal is merely a new legal argument on the issue of the timeliness charge, based
on the same evidence presented to the Board agent. 	Thus, the equitable tolling argument does
not constitute a new allegation or new evidence and PERB Regulation 32635, subdivision (b)
does not preclude the Board from considering the argument.
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
2

Equitable Tolling
We now turn to AFSCME's argument that the statute of limitations should be tolled. In
Long Beach Community College District (2009) PERB Decision No. 2002, the Board set forth
the limited circumstances in which equitable tolling will apply:
[T]he statute of limitations is tolled during the period of time the
parties are utilizing a non-binding dispute resolution procedure if:
( 1) the procedure is contained in a written agreement negotiated
by the parties; (2) the procedure is being used to resolve the same
dispute that is the subject of the unfair practice charge; (3) the
charging party reasonably and in good faith pursues the
procedure; and ( 4) tolling does not frustrate the purpose of the
statutory limitation period by causing surprise or prejudice to the
respondent.
The Board noted that the "same dispute" requirement "prevents prejudice to the respondent
because the initiation of the dispute resolution procedure puts the respondent on notice of the
dispute that is the subject of the unfair practice charge." (Id., citing Victor Valley Community
College District (1986) PERB Decision No. 570.) Without a "same dispute" requirement,
equitable tolling would subject a respondent to "stale claims" of which the respondent had no
notice, thereby eviscerating the purpose of the statute of limitations. (Id., see Addison v. State
of California (1978) 21 Cal.3d 313, 317 ["[T]he primary purpose of statutes oflimitation is to
prevent the assertion of stale claims by plaintiffs who have failed to file their action until
evidence is no longer fresh and witnesses are no longer available."].) In Solano County Fair
Association (2009) PERB Decision No. 2035-M, the Board held that equitable tolling applies
to cases filed under the MMBA.
In the present case, the parties' memorandum of understanding (MOU) contains a
negotiated grievance procedure. AFSCME alleges that the District unilaterally abrogated the
MOU by refusing to process or arbitrate a grievance in violation of MMBA section 3505. The
3

4
grievance, on the other hand, concerned the termination
of
an employee. Filing a grievance
concerning an employee's termination does not put the District on notice
of
a unilateral
change
concerning the negotiated agreement. As such, we decline to extend PERB
's
equitable
tolling
doctrine.
Sanctions (Attorney Fees)
As set forth in great detail in City
of
Alhambra (2009) PERB Decision No.
2036-M
(Alhambra), in order for a party to obtain an award
of
attorneys fees, the moving party
must
demonstrate that the charge was "without arguable merit" and pursued in "bad faith"
(Alhambra). 	In its response to AFSCME's appeal, the District argues that it is entitled
to
litigation costs and attorneys fees because AFSCME has persisted in bringing frivolous claims,
without any merit, at significant costs to the Board, the District, the water customers
and
taxpayers that the District serves. Based on our review, we find that the record lacks
evidence
that AFSCME pursued the appeal in bad faith and that the District failed to demonstrate
that
the appeal was "without arguable merit." Therefore, the Board does not award attorneys fees.
ORDER
The unfair practice charge in Case No. SA-CE-496-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Acting Chair Dowdin Calvillo and Member Wesley joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT 1illLATIONS BOARD
Sacramento Regional Office
103118th
Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
May 27, 2008
Costa Kerestenzis, Attorney
Beeson, Tayer & Bodine
520 Capitol Mall, Suite 300
Sacramento, CA 95814-4714
Re: 	AFSCME Local 146, AFL-CIO v. Nevada Irrigation District
Unfair Practice Charge No. SA-CE-496-M
DISMISSAL LETTER
Dear Mr. Kerestenzis:
ARNOLD
SCHWARZENEGGER,
Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 30, 2007. AFSCME Local 146, AFL-CIO (Union or Charging
P3:rty) alleges that
the_
Nevada Irrigation District (District or Respondent) violated the Meyers-
Miiias-Brown Act (MMBA) 1 by
refusinlto
process
or
arbitrate a gri~vance concerning
the
termination
of
an employee (Gary Stoddard).
Charging Party was informed by tbe attached Warning Letter dated April 14, 2008, that
the
above-referenced charge
-did
not
sta~
a prima facie case. Charging Party was advised that,
if
there were any factual inaccuracies or additional facts which would correct the deficiencies
explained in that letter, the charge should be amended. You were further advised that, unless
the charge was amended to state a prima facie case or withdrawn on or before April 24, 2008,
the charge would be dismissed.
We discussed the charge and Warning Letter by telephone on April 24, 2008, and Charging
Party was granted additional time in whicli to amend the charge.·. Charging Party filed a First
Amended Charge on May 1, 2008.
Background
The Union is the exclusive representative
of
non-management employees
of
the District. 	From
1981 until his termination on March 24, 2006, Mr. Stoddard w~s employed by the District, and
at all relevant times his position was included in the bargaining unit represented by the Union.
Following Mr. Stoddard's'termination, the Urion filed a grievan~c on his behalf.
By letter dated August 30, 2006, addressed to Union Business Ager,t Judy Steinke, the District
General Manager responded to earlier correspondence from the Union regarding the grievance
over the termination
of
Mr. Stoddard. In its letter, the District stated,
in
relevant part, that the
1 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 Inte:n~et
-~t
vvww.perb.ca.gov.

SA-CE-496-M
May 27, 2008
Page 2
"MOU grievance procedure
is
not available to Mr. Stoddard for three reasons." Among
the
three reasons cited was the statement that a "separation from employment" is not "a
disciplinary termination."
The Union alleges that, between August and November 2006, the Union and District discussed
"additional ways
of
settling the dispute
..
"2 In support
of
this assertion, the :Union attaches
to
the First Amended Charge a copy
of
an e-mail message from Ms. Steinke to Mr. Stoddard,
dated October 4, 2006, referencing a .conversation with Michael Sexton, an attorney
representing the District. The e~mail message; in relevant part, stated that Mr. Sexton
had
agreed to talk to a Human Resources representative with the District, but added that, "This is
about putting you back on leave only."
However, on November 8, 2006, another Union representative, Felix Huerta, sent an e-mail to
the District informing them
of
the death
of
Ms. Steinke and asking "for a period
of
abeyance
on any and all official union matters for a short period
of
time." The District agreed to
hold
matters in abeyance.
On March 27, 2007, responding to another e-mail message from Mr. Huerta,3 in which the
Union sought to elevate Mr. Stoddard's prevtously denied grievance to the next level, the
District again stated its conclusion that the decision to separate Mr. Stoddard from employment
was not subject to the grievance procedure. On April 12, 2007, the Union again argued
that
Mr. Stoddard's termination was grievable, and on April 18, 2007 the District again responded
that it would not process the grievance.
Discussion
The allegation that the District refused to process a grievance
is
properly reviewed
as
an alleged
unilateral abrogation
of
the MOU. (County
of
Riverside (2003) PERB Decision No. 1577-M.)
Such a unilateral change would violate MMBA section 3505 and is an unfair practice under
PERB Regulation 32603(c). (Ibid.)
As discussed in the Warning Letter, 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.)
Notably, the charge does not state that the Union appealed the General Manager's
August 30, 2006 letter pursuant to the grievance steps outlined in the MOU. Pursuant to
Article XIII, the General Manager responds to a grievance at step 2 of the process. The
General Manager's reply may be appealed within 10 workdays to the District Labor Committee
(step 3). The decision of the Labor Committee can be appealed at step 4 to the District Board
of Directors. Step 5 of the grievance procedure is binding arbitration.
3 The date of Mr. Huerta's e-mail message is not provided either by the First Amended
Charge or the contents of the District's March 27, 2007 letter.

SA-CE-496-M
May 27, 2008
Page 3
(
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 cases alleging a unilateral change, the statute
of
limitations begins to run on the date
the
charging party has actual or constructive notice
of
the respondent's clear intent to implement a
unilateral change in policy, provided that nothing subsequent to that date evinces a wavering
of
that intent. (Peralta Community College District (1998) PERB Decision No. 1281; West
Valley-Mission Community College District (1995) PERB Decision No. 1113; Cloverdale
Unified School District (1991) PERB Decision No. 911; Regents
of
the University
of
California (1990) PERB Decision No. 826-H.)4
In the Warning Letter, I concluded in relevant part:
[I]t appears that the Union had actual notice
of
the Respondent's
position that Mr. Stoddard's termination was not grievable at
least as early as August 30, 2006, or
11
months prior to the date
the charge was filed. 	The charge does not provide facts to
establish that the District, through its later conduct, evinced a
wavering
of
intent in this regard. Thus, as written, the charge is
time-barred and must be dismissed.
Through the First Amended Charge, the Union attempts to address this statute of limitations
issue by alleging that the Union and District continued to discuss Mr. Stoddard's termination
following the August 30, 2006 refusal to process the grievance, that the District agreed to hold
all pending union matters in abeyance for a period
of
time following the death of Ms. Steinke,
and that the District responded to Union correspondence concerning Mr. Stoddard's grievance
on March 27 and April 18, 2007. The Union further notes that the August 30, 2006 letter
closed with the comment, "Please feel free to contact me
if
you wish to discuss this matter [Mr.
Stoddard's grievance] further." The Union also alleges that, after Mr. Huerta assumed
responsibility for the matter on behalf
of
the Union, that it "was understood by the parties
during that process that the parties were still trying to determine the grievability of Stoddard's
termination."
In addition, the Union notes that the District's March 27, 2007 letter does not state that a final
decision had previously been made with regard to the issue of grievability, and thus concludes
that, only with the April 18, 2007 correspondence did the District signal its final decision and
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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SA-CE-496-M
May 27, 2008
Page 4
refusal to engage in further discussion
of
the matter. Thus, according to the Union, the
charge
was timely filed
as
it was filed within six months
of
the April 18, 2007 "final decision."
However, like the layoff decision considered by the Board in West Valley-Mission
Community
College District, supra, PERB Decision No. 1113, there is no evidence that "indicated
the
possibility that [the Respondent] was reconsidering" the objected-to decision. The October 4,
2006 e-mail message, from Ms. Steinke to Mr. Stoddard, makes clear that the discussions
with
the District only encompassed the possibility that Mr. Stoddard would be placed on leave.
	But
the decision to terminate Mr. Stoddard (or separate him from employment) is not the
decision
that lies at the heart
of
the instant matter.
The unfair practice charge, instead, concerns the decision by the District to deem a grievance
filed over a termination (or separation from employment) as outside the bounds
of
the
grievance and arbitration processes negotiated by the parties. While the Union asserts,
in
conclusory fashion, that "the parties were still trying to determine the grievability
of
Stoddard's termination" in November 2006, and later, the facts alleged in the charge do
not
support this conclusion. The October 4, 2006 e-mail from Ms. Steinke to Mr. Stoddard reveals
no discussions on-going between the Union and the District concerning the grievability
of
the
issue; rather, the discussions referenced concerned Mr. Stoddard's employment status.
Further, while the Union argues that the April 18, 2007 letter from the District constituted the
"definitive and final decision" on the issue
of
grievability, this conclusion is inconsistent
with
the Union's actions, or inaction, vis-a-vis pursuit
of
the grievance through the steps defined in
the MOU following August 30, 2006. It is clear that the Union continued to seek discussions
with the District over Mr. Stoddard's termination, and that the District responded to those
inquiries on more than one occasion, but there is simply no evidence to support the conclusion
that the District "was reconsidering" the August 30, 2006 decision that the Union could
not
grieve Mr. Stoddard's separation from employment. (West Valley-Mission Community
College District, supra, PERB Decision No. 1113; City
of
Santa Barbara, supra, PERB
Decision No. 1628-M.)
Finally, even
if
the period
of
time during which the parties agreed to hold matters in abeyance,
following the death
of
Ms. Steinke, is held to toll the statute
of
limitations period, the charge
would still be untimely. As noted previously,
11
months elapsed between the date (August 30,
2006) that the District informed the Union that the grievance would not be processed and the
date (July 30, 2007) that the instant charge was filed. 5 The "hold" that was placed on matters
5 It is, at best, questionable whether the equitable tolling described by the Board
in
Long Beach Community College District (2003) PERB Decision No. 1564 is applicable under
the facts
of
the instant case. In Long Beach, the Board held that the six-month limitation
period "should be extended equitably only when a party utilizes a bilaterally agreed upon
dispute resolution procedure," and "that the statute oflimitations is tolled during the period
of
time the grievance is being pursued if: (1) the charging party reasonably and in good faith
pursues the grievance; and (2) tolling did not frustrate the purpose of the statutory limitation
period by causing surprise or prejudice to the respondent." (Id.)

SA-CE-496-M
May 27, 2008
Page 5
extended only from November
8,
2006_
to the date on which Mr. Huerta again contacted the
District concerning Mr. Stoddard's termination. Since the District's next response was dated
6
March 27, 2007, the maximum span
of
the "hold" was for fewer than five months. 	Thus, the
charge was filed beyond the six-month statute oflimitations period even
if
this "hold" is
considered to "toll" the statute
of
limitations period.
Therefore, the charge is hereby dismissed as untimely filed based on the facts and reasons set
forth above.
Right to Appeal
Pursuant to PERB Regulations,7 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
the
	this dismissal. (Regulation 32635(a).) Any document filed with the Board must contain
case name and number, and the original and five (5) copies
of
all documents must be provided
to the Board.
day.	A document is considered "filed" when actually received during a regular PERB business
(Regulations 32135(a)a:nd 32130; see also Governme_nt 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
may
	If
Charging Party files a timely appeal
of
the refusal to issue a complaint, any other party
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).)
As noted previously, the date on which Mr. Huerta contacted the District and thus
terminated the "hold" is not specified in the charge. Thus, the "fewer than five months"
calculation is based on the period from November 8, 2006 to March 27, 2007, even though the
"hold" likely terminated earlier.
7 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-496-M
May 27, 2008
Page 6
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).)
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,
TAMIR. BOGERT
General Counsel
By
------i::::::,----------L es Chisholm
Division Chief
Attachment
cc: Michael Sexton

(,••'·
STATE OF CALIFORNIA 	\
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118th
Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
April 14, 2008
Costa Kerestenzis, Attorney
Beeson, Tayer & Bodine
520 Capitol Mall, Suite 300
Sacramento, CA 95814-4714
Re: 	AFSCME Local 146, AFL-CIO v. Nevada Irrigation District
Unfair Practice Charge No. SA-CE-496-M
WARNING LETTER
Dear Mr. Kerestenzis:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 30, 2007. AFSCME Local 146, AFL-CIO (Union or Charging
Party) alleges that the Nevada Irrigation District (District or Respondent) violated the Meyers-
Milias-Brown Act (MMBA) 1 by refusing to process or arbitrate a grievance concerning
the
termination
of
an employee (Gary Stoddard).
The Union is the exclusive representative
of
non-management employees
of
the District. 	From
1981 until his termination on March 24, 2006, Mr. Stoddard was employed by the District, and
at all relevant times his position was included in the bargaining unit represented by the Union.
Following Mr. Stoddard's termination, the Union filed a grievance on his behalf, attempted to
meet with the District regarding the termination, and sought to have the grievance elevated to
the arbitration step
of
the grievance procedure.
Citing a letter from the District dated April 18, 2007, the Union alleges that the District
violated the MMBA by refusing to process the grievance concerning Mr. Stoddard's
termination. The April 18 letter, in part, states that Mr. Stoddard was "separated from his
employment" and that such action is "not subject to the District's established grievance
procedure."
The charge does not attach a copy
of
the parties' memorandum
of
understanding (MOU),
if
any, nor a copy
of
the grievance procedure under which the Union sought to appeal Mr.
Stoddard's termination.
1 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 WVvTTN.perb.ca.gov.

SA-CE-496-M
April 14, 2008
Page 2
Discussion
The central violation asserted in this charge is that the District refused to process a grievance
This allegation will be reviewed
as
an alleged unilateral abrogation
of
the MOU. Such a
unilateral change violates MMBA section 3505 and is an unfair practice under PERB
Regulation 32603(c
). 
.
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also 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
.)
The District has also raised the statute
of
limitations as an affirmative
defense.
Statute
of
Limitations
With its August 20, 2007 response to the instant unfair practice charge, the District attached a
copy of a letter dated August 30, 2006, addressed to Union Business Agent Judy Steinke.3 The
August 30, 2006 letter responds to earlier correspondence from the Union regarding the filing
of
a grievance over the termination
of
Mr. Stoddard. In its letter, the District stated, in relevant
part, that the "MOU grievance procedure is not available to Mr. Stoddard for three reasons."
Among the three reasons cited was the argument that a "separation from employment" is not "a
disciplinary termination."
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 Nothing in the MMBA or PERB case law requires a Board Agent to ignore the facts
provided by the Respondent, and to only consider the facts provided by the Charging Party.
/Service Em lo 'ees International Union #790 fAdza 	(2004) PERB Decision No. 1632-M.)

SA-CE-496-M
April 14, 2008
Page 3
In cases alleging a unilateral change, the statute
of
limitations begins to run on the date
the
charging party has actual or constructive notice
of
the respondent's clear intent to implement a
unilateral change in policy, provided that nothing subsequent to that date evinces a wavering
of
that intent. (Cloverdale Unified School District (1991) PERB Decision No. 911; Regents
of
the University
of
California (1990) PERB Decision No. 826-H.)
As discussed above, it appears that the Union had actual notice
of
the Respondent's position
that Mr. Stoddard's termination was not grievable at least as early as August 30, 2006,
or
11
months prior to the date the charge was filed. The charge does not provide facts to establish
that the District, through its later conduct, evinced a wavering
of
intent in this regard. Thus, as
written, the charge is time-barred and must be dismissed.
Prima Facie Case
Even
if
not time-barred, the charge as presently ·written fails to provide sufficient, specific facts
to support finding a prima
fade
violation. As noted above, the charge alleges that the District
abrogated a negotiated grievance and arbitration procedure by refusing to process the grievance
for Mr. Stoddard, but the charge does not attach the MOU or grievance procedure. Thus, for
example, it is not possible to determine what the definition
of
a grievance is under the
established procedure, nor what limitations on filing a grievance may be present. Without such
information, it is not possible to conclude that the District's conduct was at variance with the
negotiated or established procedures. As also noted above, the allegation
of
legal conclusions
is not sufficient to state a prima facie case. (State
of
California (Department
of
Food and
Agriculture), supra, PERB Decision No. 1071-S.)
Conclusion
For these reasons the charge, as presently written, does not state a prima
fade
case. If there
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
the charge is not
amended or withdrawn on or before April 24, 2008, I shall dismiss the charge.
	If
you have any
questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief