International Federation of Professional and Technical Employees, Local 21, AFL-CIO (Hosny) (PERB 2192M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MOHAMED HOSNY,
Charging Party,
V.
IFPTE, LOCAL 21, AFL-CIO,
Respondent.
Case No. SF-CO-224-M
PERB Decision No. 2192-M
July 27, 2011
Appearance: 	Mohamed Hosny, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Mohamed Hosny (Hosny)
of
a Board agent's dismissal
of
his unfair practice charge. The charge alleged that IFPTE, Local 21, AFL-CIO (Local 21)
breached its duty
of
fair representation under the Meyers-Milias-Brown Act (MMBA) 1 by
failing to satisfactorily resolve an employment discrimination claim and failing to take a
grievance to arbitration. The Board agent found that the charge was untimely filed and failed
to state a prima facie violation
of
the duty
of
fair representation.
The Board has reviewed the dismissal and the record in light
of
Hosny's appeal and the
relevant law. Based on this review, we affirm the dismissal for the reasons set forth below.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

BACKGROUND
Settlement
of
2006 Civil Service Commission Decision
Hosny is employed by the San Francisco Municipal Transit Agency (MTA) as a Senior
Administrative Analyst and is a member
of
Local 21. In 2003, he filed a complaint with the
MT A alleging he was denied a promotion due to discrimination.2 The MT A denied the
complaint in 2004 and Hosny appealed the decision to the San Francisco Civil Service
Commission (CSC). Local
21
representative Criss Romero (Romero) represented Hosny
before the CSC. On June 21, 2006, the CSC issued a decision stating that the appeal was
granted, but provided no further instructions to the parties on how the ruling was to be
implemented. Following the issuance
of
the favorable CSC ruling, Romero attempted to
negotiate a settlement with MT A on Hosny' s behalf. Romero informed Hosny that he was
trying to negotiate a position for Hosny as a Principal Administrative Analyst and to obtain
back pay, but that MTA was not responding to him. Eventually, after Romero's attempts to
reach an agreement failed, he stopped responding to Hosny' s calls and email messages.
On August 8, 2006, Hosny sent an email message to Local
21
representative Bob
Britton (Britton) complaining that Romero had not responded to his emails. Britton responded
by saying that he had spoken with Romero and that Romero had said he would call Hosny.
The email further advised Hosny to let Britton know
if
he did not get a call from Romero.
There is no indication that Romero ever contacted Hosny or that Hosny followed up with
Britton until sometime in late 2007.
On October 29, 2007, Britton sent an email message to MTA concerning the 2006 CSC
ruling, with a copy to Hosny. The email message mentions prior discussions Britton had had
with the CSC and states that Local 21 was considering legal action to enforce the CSC' s ruling.
The record does not indicate the alleged basis of discrimination.
2

Britton suggested a meeting with Local 21, Hosny, the City Attorney's Office and MTA.
Hosny alleges that Britton never followed up on this email.
By letter dated March
6,
2008, Jennifer Johnston (Johnston)
of
the San Francisco
Department
of
Human Resources (DHR) responded to a letter Hosny had sent in February
of
that same year. That letter acknowledges that the CSC ruling did not provide any direction for
an appropriate remedy or resolution in granting his appeal, thus leaving the parties to resolve
the matter on their own. The letter further states that the CSC no longer has authority over
complaints against MTA, but that Johnston had contacted MTA representatives who indicated
that they would be in contact with Hosny's union representative, Pam Covington (Covington),
to schedule a meeting to discuss a possible settlement between Hosny and the MT
A.
	The letter
concludes with the statement, "You should hear from either party shortly; in the meantime, I
thank you for your continued patience." After receiving this letter from Johnston, Hosny
received no further communication regarding his CSC ruling and discrimination complaint
from either CSC, MT A, or Local 21. 3
2008 Suspension
In or around May 2008,4 MTA suspended Hosny for five days for refusing to perform
physical inspections
of
city bus shelters as directed by management. Hosny's refusal was
based upon his assertions that he had back problems that prevented him from performing these
duties, he lacked the necessary training and education, and that the inspections were not
In the meantime, on October 4, 2007, Hosny filed a complaint with the CSC
protesting a job announcement.
4 It is unclear from the record whether the suspension was imposed in March or May
2008. In his charge, Hosny asserts that he was asked to conduct the inspections sometime in
May 2008. However, in its July 31, 2008 denial of the grievance, DHR states that the MTA
notified Hosny of the suspension on March 7, 2008. This discrepancy is irrelevant to the
issues before the Board.
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included in his initial job description but rather were added later in subsequent revisions that
he was never informed of.
With the help
of
Local
21
representative Covington, Hosny initiated the grievance
procedure and a grievance meeting was held on June 19, 2008 with Hosny's manager, Gail
Stern (Stern). During that meeting, an agreement was reached under which Hosny would only
need to visit bus shelters to confirm that repairs had been completed, and he would not be
required to take pictures or conduct any repairs himself. Hosny agreed to this arrangement.
Stern allowed him to conduct the bus shelter inspections at his leisure and said that she would
organize a group visit to a bus shelter to further show Hosny what an inspection entailed.
Covington advised Hosny that he should request reasonable accommodation for his medical
condition
if
he sought to avoid performing the inspections, but that until such accommodation
was granted, he needed to comply with this directive to avoid a charge
of
insubordination. In
his charge, Hosny acknowledges that he was informed that, until he completed the reasonable
accommodation paperwork, he still had to carry out his assignments.
In a letter to Covington on July 31, 2008, the DHR Employee Relations Division (ERD)
denied Hosny's grievance to set aside his five-day suspension, based on his continued refusal
to perform bus shelter inspections as directed.5 The letter provides that Local
21
has twenty
days from the date
of
receipt
of
the ERD' s response to file a written appeal to arbitration.
On October 8, 2008, Covington sent a letter to Hosny informing him that, in light
of
his
continued refusal to perform the inspections, it was impossible to prevail on the removal
of
his
suspension and, therefore, Local
21
would not take the issue to arbitration. The letter states
5 Hosny denies that he continued to refuse to perform the inspections after June 19,
2008, and appears to assert that any noncompliance was excused due to his medical condition
or was outside the scope of his job duties. The issue of whether Hosny was in fact
insubordinate is not relevant to this proceeding.
4

that, Hosny should continue with the reasonable accommodation process
if
he sought relief
from his inspection duties. After Hosny filed the necessary reasonable accommodation
paperwork and medical reports, his reasonable accommodation request was granted in
December 2008, relieving him
of
the obligation to perform bus shelter inspections. MTA
refused, however, to remove the initial five-day suspension.
Renewed Efforts to Obtain Union Assistance
In May 2009, Hosny began sending email messages to Local
21
President Dean Coate
(Coate) in which he detailed his cases and asked for assistance. In a summary he prepared,
Hosny expresses concern that he has not had any communication from Local
21
regarding the
CSC ruling since March 2008. Hosny alleges that, during the period mid-2006 through 2008,
Local
21
"went through a long reorganization process" and that, during this period, Coate
asked him to "wait until the Union gets organized." The amended charge alleges that Hosny
spoke with Coate in December 2009 and that Coate asked him for a summary
of
the case and
told him that he was now in a position to help him. This prompted Hosny to re-send his
previous email messages from May 2009. However, at some point after that December
conversation, Coate informed Hosny that pursuing the matter would be difficult. Hosny then
filed his unfair practice charge on April 13, 2010.
Hosny contends that Local
21
breached its duty
of
fair representation to him by not
securing his settlement with MT A over his discrimination claim and for not submitting the
grievance regarding his five-day suspension to arbitration.
5

DISCUSSION
New Evidence on Appeal
In his appeal, Hosny presents new evidence that was not presented in the original charge.
The evidence consists
of
several series
of
email correspondence dated 2008 and a site visit report
dated September
1,
2008.
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU Employees
Union, SEJU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.) The Board has found
good cause when "the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal
of
the charge." (Sacramento City Teachers
Association (Ferreira) (2002) PERB Decision No. 1503.) On March
8,
2011, the Board agent
issued a letter advising Hosny that the charge failed to state a prima facie case and warning him
that the charge would be dismissed unless he amended the charge to state a prima facie case.
Hosny did file an amended charge on March 28, 2011, as well as a response to Local
21
's
position statement on May 4, 2010. The Board agent dismissed the charge on April
5,
2011. All
of
the dates
of
the events alleged for the first time on appeal predate the dismissal
of
the charge,
and the appeal provides no reason why they could not have been alleged in the original or
amended charge. Thus, we find no good cause to consider these new allegations and evidence.
Timeliness
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 & Vector Control Dist.
v.
Public Employment Relations Bd.
(2005) 35 Cal.4 th 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
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District ( 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
No. 2002.)
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, CFTIAFT (Violett, et al.) (1991) PERB
Decision No. 889; International Union
of
Operating Engineers, Local 501 (Reich) (1986)
PERB Decision No. 591-H; SE![], United Healthcare Workers West (Rivera) (2009) PERB
Decision No. 2025-M.) In the case
of
a union's failure to process a grievance in which there is
no definitive action upon which to base the limitations period, PERB has upheld the dismissal
of
a charge alleging violation
of
the duty
of
fair representation where the union failed to respond to
the employee's letter and telephone messages for several weeks, finding that employee should
have known that the union was not processing an employee's grievance prior to the expiration
of
the statutory limitations period. (California State Employees Association (Chen) (2005) PERB
Decision No. 1736-S; see also Oakland Education Association (Freeman) (1994) PERB
Decision No. 1057 [employee knew or should have known that union was failing to process his
grievance when it failed to return his telephone calls or reply to his correspondence].)
Once the statute begins to run, the employee cannot cause it to begin anew by making the
same request over and over again. (California State Employees Association, Local I 000, SEIU,
AFL-CIO, CLC (Sutton) (2003) PERB Decision No. 1553-S (Sutton); California State
Employees' Association (Calloway) (1985) PERB Decision No. 497-H (Calloway).) Nor does an
employee's complaint to higher-level union officials about the handling of the employee's
7

grievance extend the limitations period. (California School Employees Association (Spiegelman)
(1984) PERB Decision No. 400.)
The charge in this case was filed on April 13, 2010. Therefore, to be timely, the alleged
unlawful actions must have occurred on or after October 13, 2009. With respect to the 2006
CSC ruling, the last communication Hosny received from Local
21
was the October 2007 email
from Britton to MT A seeking to resolve the settlement, to which no response was received. 	In
March 2008, Hosny received a letter from DHR stating that MTA had been contacted and that he
should be hearing from either MTA or Local 21. Although he received no communication from
either entity, he then waited over a year to send his email messages in May 2009 to Local
21
President Coate asking for assistance, but received no response. An employee's continued
attempts to obtain assistance from the union does not extend the statute
of
limitations. (Sutton;
Calloway.) Thus, Hosny's repeated efforts to contact the union president did not relieve him
of
the obligation to file a timely charge. Having received no response to Brittan's October 2007
email and Hosny's May 2009 inquiries, Hosny knew or reasonably should have known long
before October 13, 2009 that further assistance from Local
21
was unlikely. Accordingly, the
charge filed on April 13, 2010 was not timely filed.
Likewise, the charge was not timely filed with respect to Local
21
's
refusal to request
arbitration over the 2008 suspension. Local
21
clearly informed Hosny on October 8, 2008
that it would not take the case to arbitration. Therefore, the charge filed over one and one-half
years later was not timely. (Teamsters Locals 78 & 853 (Hinek) (2009) PERB Decision
No. 2056-M.)6
Given our determination that the charge was not timely filed, the Board need not and
does not address the remaining issues raised on appeal.
8

On appeal, Hosny asserts that the delay in filing the charge was due to the actions
of
Coate, who allegedly asked Hosny sometime between 2006 and 2008 to "wait until the Union
gets back in order." The charge fails to provide any specifics as to when any reorganization
occurred. Thus, even
if
Hosny may have acted reasonably in waiting until the reorganization
was complete, the charge fails to provide sufficient facts to establish when that occurred or that
a delay
of
more than one and one-half years after the last communication he received from
Local
21
concerning his CSC appeal was reasonable. Moreover, even after Coate failed to
respond to Hosny's May 2009 inquiries, he still took no further action other than to reiterate
his request in December 2009. Therefore, even assuming that he was not aware in 2008 that
further action by Local
21
was unlikely, he knew or should have known that further assistance
was unlikely when Coate failed to respond to his inquiries in May 2009, yet, he still waited
nearly a year to file his charge. The fact that Coate finally told him after December 2009 that
he would not help him does not excuse the prior failure to file a timely charge.
ORDER
The unfair practice charge in Case No. SF-CO-224-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
9