Rio Teachers Association (Lucas) (PERB 2157E)

Appearances: L
STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION	DECISION OF THE	OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
LYNETTE LUCAS,	LYNETTE LUCAS,
Charging Party,	Charging Party,
vV..
RIO TEACHERS ASSOCIATION,	RIO TEACHERS ASSOCIATION,
Respondent.	Respondent.
Case No. LA-CO-1418-E
PERB Decision No. 2157
January 21, 2011
Appearances: 	Lynette Lucas, on her own behalf; California Teachers Association by	ynette Lucas, on her own behalf; California Teachers Association by
Michael D. Hersh, Attorney, for Rio Teachers Association.	Michael D. Hersh, Attorney, for Rio Teachers Association.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board	WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal from the partial dismissal of an unfair practice charge filed by	(PERB or Board) on appeal from the partial dismissal of an unfair practice charge filed by
Lynette Lucas (Lucas) alleging that the Rio Teachers Association (Association) violated	Lynette Lucas (Lucas) alleging that the Rio Teachers Association (Association) violated
section 3546.5 of the Educational Employment Relations Act (EERA)	section 3546.5 of the Educational Employment Relations Act (EERA 1
)'
E
by failing to provide	by failing to provide
her with financial reports covering a ten-year period.	her with financial reports covering a ten-year period.
The	The Board has reviewed the partial dismissal and the record in light of Lucas's appeal,	Board has reviewed the partial dismissal and the record in light of Lucas' s appeal,
the Association's response to the appeal and the relevant law. Based on this review, the Board	the Association's response to the appeal and the relevant law. Based on this review, the Board
affirms the partial dismissal of the charge as untimely with respect to the request for financial	affirms the partial dismissal of the charge as untimely with respect to the request for financial
reports for the periods 2000-2008.	reports for the periods 2000-2008.
1 EERA	ERA is codified at Government Code section 3540 et seq. Unless otherwise	is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.	indicated, all statutory references herein are to the Government Code.

BACKGROUND	BACKGROUND
The relevant	The relevant underlying facts are uncomplicated. Since 2009, Lucas has been	underlying facts are uncomplicated. Since 2009, Lucas has been
employed by the Rio School District	employed by the Rio School District and is a member of the bargaining unit exclusively	and is a member
of
the bargaining unit exclusively
represented by the Association. In January	represented by the Association. In January 2010, Lucas requested that the Association provide	2010, Lucas requested that the Association provide
her	her with the financial reports required by EERA section 3546.5 for the current fiscal year as	with the financial reports required by EERA section 3546.5 for the current fiscal year as
well as for the prior nine years. The Association has not produced the reports. 	On	well as for the prior nine years. The Association has not produced the reports. On
February 16, 2010, Lucas filed an unfair practice charge seeking an order compelling	February 16, 2010, Lucas filed an unfair practice charge seeking an order compelling
production
of
the financial reports. 	On June 17, 2010, a Board agent issued a partial	production of the financial reports. On June 17, 2010, a Board agent issued a partial warning	warning
letter advising	letter advising Lucas that the charge was untimely as to the allegations that the Association	Lucas that the charge was untimely as to the allegations that the Association
failed to provide her with financial reports for years	failed to provide her with financial reports for years prior to 2009. On July 29, 2010, Lucas	prior to 2009. On July 29, 2010, Lucas
filed an amended charge containing arguments why the charge should be considered timely.	filed an amended charge containing arguments why the charge should be considered timely.
BOARD AGENT'S PARTIAL DISMISSAL
The Board agent dismissed as untimely all allegations concerning the Association's	The Board agent dismissed as untimely all allegations concerning the Association's
failure to provide Lucas with financial reports required by section 3546.5 for the fiscal years	failure to provide Lucas with financial reports required by section 3546.5 for the fiscal years
2000-2008.	2000-2008. The Board agent found that the continuing violation doctrine did not apply to	The Board agent found that the continuing violation doctrine did not apply to
these allegations.	these allegations.
CHARGING PARTY'S APPEAL	CHARGING PARTY'S APPEAL
On appeal, Lucas contends that the charge is timely because: (1) the continuing	On appeal, Lucas contends that the charge is timely because: (1) the continuing
violation doctrine applies to this case; (2) equitable estoppel or equitable tolling prevents the	violation doctrine applies to this case; (2) equitable estoppel or equitable tolling prevents the
six-month statute oflimitations period from	six-month statute of limitations period from barring claims for violations of EERA	barring claims for violations
of
EERA
section 3546.5 occurring prior to fiscal year 2008-2009; (3)	section 3546.5 occurring prior to fiscal year 2008-2009; (3) the Association has an obligation	the Association has an obligation
to keep copies of its annual financial statements; and (4) PERB can and should, independent of	to keep copies of its annual financial statements; and (4) PERB can and should, independent of
the unfair practice	the unfair practice charge, compel the Association to produce financial reports for the most	charge, compel the Association to produce financial reports for the most
recent ten years.	recent ten years.
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Regulation 32125 w
DISCUSSION
Timeliness
EERA section 3546.5 requires recognized employee organizations to prepare and make
available to their members (and to the Board) an annual report
of
their financial transactions.
Section 3546.5 provides:
Every recognized or certified employee organization shall keep	Every recognized or certified employee organization shall keep
an adequate itemized record
of
its	an adequate itemized record of its financial transactions and shall	financial transactions and shall
make available annually, to the board and to the employees who	make available annually, to the board and to the employees who
are members
of
the organization, within 60 days after	are members of the organization, within 60 days after the end of	the end
of
its fiscal year, a detailed written financial report thereof in the	its fiscal year, a detailed written financial report thereof in the
form of a balance sheet and an operating statement, signed and	form
of
a balance sheet and an operating statement, signed and
certified as to accuracy by its president and treasurer, or	certified as to accuracy by its president and treasurer, or
corresponding principal officers. In the event
of
failure
of	corresponding principal officers. In the event of failure of
compliance with this section, any employee within the	compliance with this section, any employee within the
organization may petition the board for an order compelling such	organization may petition the board for an order compelling such
compliance, or the	compliance, or the board may issue such compliance order on its	board may issue such compliance order on its
motion.	motion.
Prior to 2006, a "petition to compel compliance" pursuant to former PERB	Prior to 2006, a "petition to compel compliance" pursuant to former PERB
Regulation 321252 was the appropriate means	as the appropriate means of redressing violations of section 3546.5.	
of
redressing violations
of
section 3546.5.
(See also Service Employees International Union, Local 99	(See also Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision	(Kimmett) (1979) PERB Decision
No. 106 [the appropriate remedy for failure to file financial reports was a petition to compel	No. 106 [the appropriate remedy for failure to file financial reports was a petition to compel
compliance, not an unfair practice charge].) Under former Regulation 32125(b), a	compliance, not an unfair practice charge].) Under former Regulation 32125(b), a petition to	petition to
compel	compel compliance had to be filed not later than 12 months following the end of the exclusive	compiiance had to be filed not later than 12 months following the end
of
the exclusive
representative's	representative's preceding fiscal year. Thus, the regulation effectively meant that an employee	preceding fiscal year. Thus, the regulation effectively meant that an employee
could	could only compel an employee organization to produce a financial report required by	only compel an employee organization to produce a financial report required by
section	section 3546.5 for the immediately preceding fiscal year.	3546.5 for the immediately preceding fiscal year.
2
PERB regulations are codified at California Code of Regulations, title 8,	PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.	section 31001 et seq.
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3
4
P
Regulation 32125(b) was repealed in 2006 and the appropriate procedure to remedy	Regulation 32125(b) was repealed in 2006 and the appropriate procedure to remedy
a failure to comply with section 3546.5 is now a unfair practice charge. (PERB Reg. 32602(a)	a failure to comply with section 3546.5 is now a unfair practice charge. (PERB Reg. 32602(a)
and (d).)	and (d).)3
Given that alleged violations of section 3546.5 are now processed as unfair practice	Given that alleged violations of section 3546.5 are now processed as unfair practice
charges, the statute of limitations applicable to the filing of unfair practice charges apply.	charges, the statute of limitations applicable to the filing of unfair practice charges apply.
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any	EERA section 3541.5(a)(1) 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	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	of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (	have known, of the conduct underlying the charge. (Gavilan Joint Community College District	Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the	(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. 	(Long Beach Community College District (2009) PERB Decision	charge is timely filed. (Long Beach Community College District (2009) PERB Decision
No. 2002.)	No. 2002.)
A violation of EERA section 3546.5 occurs when a recognized or certified employee	A violation of EERA section 3546.5 occurs when a recognized or certified employee
organization fails to make available to its members the financial report for the immediately	organization fails to make available to its members the financial report for the immediately
preceding fiscal year. Therefore, to be timely, a charge alleging a violation of section 3546.5	preceding fiscal year. Therefore, to be timely, a charge alleging a violation of section 3546.5
must be filed within six months of when the charging party knew or should have known that	must be filed within six months of when the charging party knew or should have known that
the employee organization failed or refused to provide the requested financial report for the	the employee organization failed or refused to provide the requested financial report for the
3 PERB	ERB Regulation 32602(a) provides:	Regulation 32602(a) provides:
(a)	(a) Alleged violations of the EERA, Ralph C. Dills Act, HEERA,	Alleged violations of the EERA, Ralph C. Dills Act, HEERA,
MMBA, TEERA, Article 3 of the Trial Court Act, the Court	MMBA, TEERA, Article 3 of the Trial Court Act, the Court
Interpreter Act, and alleged violations of local rules adopted	Interpreter Act, and alleged violations of local rules adopted
pursuant	pursuant to the MMBA, Trial Court Act or Court Interpreter Act,	to the MMBA, Trial Court Act or Court Interpreter Act,
shall be processed as unfair practice charges.	shall be processed as unfair practice charges.
PERB Regulation 32602(d) provides:	PERB Regulation 32602(d) provides:
(d)	(d) A charge alleging that an exclusive representative has failed	A charge alleging that an exclusive representative has failed
to comply with Government Code section 3515.7(e), 3546.5,	to comply with Government Code section 3515.7(e), 3546.5,
3584(b), or 3587, or Public Utilities Code Section 99566.3 may	3584(b), or 3587, or Public Utilities Code Section 99566.3 may
only be filed by an affected employee.	only be filed by an affected employee.
4

immediately preceding fiscal year. Thus, the allegations in the	immediately preceding fiscal year. Thus, the allegations in the present charge, filed on	present charge, filed on
February 16, 2010, are untimely with respect to the failure to provide financial reports for the	February 16, 2010, are untimely with respect to the failure to provide financial reports for the
2000-2008 fiscal years.	2000-2008 fiscal years.
Continuing Violation Doctrine
Lucas asserts that the	Lucas asserts that the charge is timely under the continuing violation doctrine. Under	charge is timely under the continuing violation doctrine. Under
this doctrine, a violation within the	this doctrine, a violation within the statute of limitations period may "revive" an earlier	statute
of
limitations period may "revive" an earlier
violation
of
the same type that occurred outside the	violation of the same type that occurred outside the limitations period. (Trustees of the	limitations period. (Trustees
of
the
California State University (2009) PERB Decision No. 2038-H.)	California State University (2009) PERB Decision No. 2038-H.) However, the doctrine does	However, the doctrine does
not apply where the alleged unlawful conduct outside the limitations	not apply where the alleged unlawful conduct outside the limitations period consists of acts	period consists
of
acts
that are separate and independent from the timely allegations. (Los Angeles	that are separate and independent from the timely allegations. (Los Angeles Unified School	Unified School
District (2009) PERB Decision No. 2011.)	District (2009) PERB Decision No. 2011.)
In this case, each year in which the Association failed to make available the financial
report required by EERA section 3546.5 constituted a separate and independent act. Therefore,
the timely allegation
of
a failure to do so in 2009 does not bring the allegations for the prior
nine years within the continuing violation doctrine.
Obligations Under EERA Section 3546.5
Even
if
the charge were considered timely, we would not find the alleged failure to
make prior year financial reports available to a current member who was not a member at
the time the reports were to have been prepared to constitute a prima facie violation
of
section 3546.5. The statute requires the employee organization to make its financial report
available annually within 60 days after the end of the fiscal year. By the terms of the statute,
the duty is owed to the Board and to employees who are members
of
the employee
5

" T
* A
6
organization at that time.4 The failure to make such reports available within the statutory time
frame is a violation of the statute subject to PERB's unfair practice jurisdiction. Nothing in the	frame is a violation of the statute subject to PERB's unfair practice jurisdiction. Nothing in the
statute, however, specifies that the organization has an obligation to keep or make financial	statute, however, specifies that the organization has an obligation to keep or make financial
reports available to future members on an ongoing basis. Therefore, the alleged failure to	reports available to future members on an ongoing basis. Therefore, the alleged failure to
provide reports for prior years does not state a prima facie violation of section 3546.5.	provide reports for prior years does not state a prima facie violation of section 3546.5.
Equitable Estoppel/Tolling
Lucas asserts that principles of equitable estoppel or equitable tolling should be applied	Lucas asserts that principles of equitable estoppel or equitable tolling should be applied
to toll the statute of limitations based upon the Association's alleged "fraudulent" conduct in	to toll the statute of limitations based upon the Association's alleged "fraudulent" conduct in
"assuring members over the years that there was nothing untoward, illegal or inappropriate	"assuring members over the years that there was nothing untoward, illegal or inappropriate
going on in the expenditure of union funds." In support of her position, Lucas cites Bowman v.	going on in the expenditure of union funds." In support of her position, Lucas cites Bowman v.
McPheeters	Mcpheeters (1947) 77	(1947) 77 Cal.App.2d	Cal.App.2d795 for the proposition that a defendant who, through	795 for the proposition that a defendant who, through
"fraud or deceit concealed material facts and by misrepresentations hindered the plaintiff from	"fraud or deceit concealed material facts and by misrepresentations hindered the plaintiff from
bringing an action within the statutory period, is estopped from taking advantage of his own	bringing an action within the statutory period, is estopped from taking advantage of his own
wrong." (Id. at p. 799.) Charging party fails to demonstrate, however, that any alleged	wrong." (Id. at p. 799.) Charging party fails to demonstrate, however, that any alleged
concealment or misrepresentations by the Association hindered her ability to act within the	concealment or misrepresentations by the Association hindered her ability to act within the
statutory period. Instead, the fact that Lucas was not employed by the District and was not a	statutory period. Instead, the fact that Lucas was not employed by the District and was not a
member of the Association during the relevant time periods when the prior year financial	member of the Association during the relevant time periods when the prior year financial
reports were to have been produced would have barred her from bringing an action to compel	reports were to have been produced would have barred her from bringing an action to compel
compliance. Therefore, equitable estoppel does not apply.	compliance. Therefore, equitable estoppel does not apply.
In Long Beach Community College District (2009) PERB Decision No. 2002, the Board
held that the statute of limitations under EERA is tolled during the period of time the parties
4 Although only members have a right to receive the financial reports, the Board has
held that agency fee payers also have standing to compel compliance with section 3546.5.
( California Teachers Association and National Education Association (Link) (1981) PERB
Order No. Ad-123.)
6

are utilizing a non-binding dispute resolution procedure if: 	(1) the procedure is contained in aare 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	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	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	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. Because this case does	limitation period by causing surprise or prejudice to the respondent. Because this case does
not demonstrate that this matter was subject to a grievance procedure, equitable tolling does	not demonstrate that this matter was subject to a grievance procedure, equitable tolling does
not apply.	not apply.
ORDER
The partial dismissal of the unfair practice charge in Case No. LA-C0-1418-E is hereby
AFFIRMED.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
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