Operating Engineers Local 3 (Williams) (PERB 2226C)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DEBORAH DIANE WILLIAMS,
Charging Party,
V.
OPERATING ENGINEERS LOCAL 3,
Respondent.
Case No. SF-CO-3-C
PERB Decision No. 2226-C
December
9,
2011
Appearance: Deborah Diane Williams, on her own behalf.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Deborah Diane Williams (Williams)
of
a Board agent's
dismissal (attached)
of
Williams' unfair practice charge. The charge alleged that Operating
Engineers Local 3 (OE) violated the Trial Court Employment Protection and Governance Act
(Trial Court Act)1 by failing to represent Williams following her termination from employment
with the Superior Court
of
Alameda County in breach
of
its duty
of
fair representation. 	The
Board agent dismissed the charge for failure to state a prima facie case.2
We have reviewed the entire record in this case. Based on our review, the Board finds
the Board agent's warning and dismissal letters to be well-reasoned, adequately supported by
The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise noted, all statutory references are to the Government Code.
2 Specifically, the Board agent found that PERB had no authority to process the charge.
(See, Trial Court Act section 7163 9
.1
[PERB' s unfair practice charge procedures are not
available to employees designated as management employees under section 7163 7 .1];
Los Angeles Community College District (1994) PERB Decision No. 1060 [Board agent must
examine the issu 	r to determining the existence of a prima facie case].)	e of standing prio

the record and in accordance with the applicable law. Accordingly, the Board adopts the
warning and dismissal letters
as
the decision
of
the Board itself, supplemented by the brief
discussion below.
DISCUSSION
Compliance with Requirements for Filing Appeal
PERB Regulation 32635(a)3 provides that an appeal from a dismissal "shall" comply
with the following requirements:
(
1)	
State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the
ill!@
or part
of
the dismissal to which each
appeal is taken:
(3) State the grounds for each issue stated.
(Emphasis added.)
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must
sufficiently place the Board and the respondent "on notice
of
the issues raised on appeal."
(State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H;
City & County
of
San Francisco (2009) PERB Decision No. 2075-M.) An appeal that
merely reiterates facts alleged in the unfair practice charge does not comply with PERB
Regulation 32635(a). (Ibid.) An appeal that does not reference the substance
of
the Board
agent's dismissal fails to comply with PERB Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt) (2009) PERB Order No. Ad-381; Lodi Education Association (Huddock)
(1995) PERB Decision No. 1124; United Teachers 	Los Angeles (Glickberg) (1990) PERB
Decision No. 846.)
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

The "appeal" in this matter is a one-page document filed on October 26, 2010.	
It
mainly reiterates facts stated in the unfair practice charge concerning Williams' termination
from employment and OE's alleged deceitful conduct. In the final paragraph, Williams
requested that her "initial complaint be suspended pending, my request for a fraud
investigation by the State Attorney General's Office." The proof
of
service describes the
document as a "Request to Withdraw Charge." 4
The appeal fails to reference any portion
of
the Board agent's determination or
otherwise identify the specific issues
of
procedure, fact, law or rationale to which the appeal is
taken, the page or part
of
the dismissal to which the appeal is taken, or the ground for each
issue stated. 	Thus, the appeal fails to sufficiently place the Board and OE on notice
of
the
issues raised on appeal and is subject to dismissal on that basis alone. (City
of
Brea (2009)
PERB Decision No. 2083-M.)
New Allegations on Appeal
In the first paragraph
of
the appeal, perhaps by way
of
introduction, Williams makes
further factual allegations concerning the circumstances in which she became a member
of
OE,
which were not presented in the original charge or in the amended charge. "Unless good cause
is shown, a charging party may not present on appeal new charge allegations or new supporting
The document filed by Williams on October 26, 2010, was not stylized as an appeal.
It
was referred to by Williams as a request to suspend the charge in the document itself and a
request to withdraw the charge in the proof of service. Accordingly, the Board's Appeals
Office sent Williams a letter dated November 3, 2011, seeking clarification. The Board's letter
informed Williams that PERB regulations do not provide a procedure for suspending a charge.
The Board's letter also inquired into Williams' intentions in filing the document given the
appearance that Williams was abandoning her charge and pursuing recourse through the Office
of the Attorney General. Williams responded by letter dated November 14, 2011, stating that
she had erred in requesting that her charge be suspended and reiterating facts alleged in her
charge, similar in substance to those contained in the original document. Because Williams'
response requested that her case be reviewed by the Board, the Board deems the original
document filed by Williams with the Board on October 26, 2010, as the appeal in this matter,
from which this decision issues herewith.
3

4
evidence." (PERB Reg. 32635(b); see also CSU Employees Union, SEIU 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.) To the extent Williams intended the statements made in the introductory
paragraph
of
her appeal to be included as part
of
her charge, there is no reason why she could
not have included them in the original charge or in the amended charge. Thus, we do not find
good cause to consider these new allegations on appeal.
ORDER
The unfair practice charge in Case No. SF-CO-3-C is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
September 13, 2010
Deborah Diane Williams
100 Hawthorn Drive #226
Fairfield, CA 94533
Re: 	Deborah Diane Williams
v.
Operating Engineers Local 3
Unfair Practice Charge No. SF-CO-3-C
DISMISSAL LETTER
Dear Ms. Williams:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 17, 2010. Deborah Diane Williams (Williams or Charging
Party) alleges that the Operating Engineers Local 3 (Local 3 or Respondent) violated section 1
71631
of
the Trial Court Employment Protection and Governance Act (Trial Court Act or Act)
by failing and refusing to fairly represent her following her termination from employment with
the Superior Court
of
Alameda County (Court) on April 23, 2010.
Charging Party was informed in the attached Warning Letter dated June 16, 2010, that the
above-referenced charge did not state a prima facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to June 30, 2010, the charge would be
dismissed.
After requesting and being granted an extension
of
time, Charging Party filed a First Amended
Charge on September
9,
2010.
Discussion
In the original charge, Williams described herself as a Court Supervisor. In response to the
charge, Local 3 asserted that the unit it represents is a management employee unit
In the attached Warning Letter, Charging Party was informed that without evidence that Court
Supervisors are not "management employees" under Section 7163 7 .1, PERB does not have
authority to further process the charge. (See California Correctional Peace Officers
Association (Smith, et al.) (1997) PERB Decision No. 1226-S; Rocklin Teachers Professional
The Trial Court Act is codified at Government Code section 71600 et seq. The text of
the Trial Court Act and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-3-C
September 13, 2010
Page 2
Association, CTAINEA (Romero) (1995) PERB Decision No. 1112 and Los Angeles
Community College District (1994) PERB Decision No. 1060.)
In response, Charging Party filed an amended charge containing an identical photocopy
of
the
original charge filed May 17, 2010 and one additional document titled "Amendment." This
document states:
Personnel Organization, Policies and Rules for the Superior Court
of
California, County
of
Alameda:
13.2. 7 Management Employee - Management Employee means
the Court Executive Officer, his or her chief deputy and
assistants, division heads and other positions as designated by the
Court.
13.2.14 Supervisory Employee - Supervisory Employee means
an employee working in a classification in which a majority
of
positions:
1)
require the incumbent, on a continuing basis, to
assign work to and rate work performance of, a subordinate
employee, and 2) authorize the incumbent to initiate or review
recommendations for dismissal or other disciplinary action.
As written, the above policy specifically includes "other positions as designated by the Court"
within the definition
of
a Management Employee. No other information was provided to
establish that Court Supervisors are not "management employees" under Section 7163 7
.1
of
the Act as required by the Warning Letter. As such, Charging Party has not established that
PERB has authority to further process the charge. (Los Angeles Community College District,
supra, PERB Decision No. 1060 [Board agent must examine issue
of
standing prior to
determining the existence
of
a prima facie case].) The charge is therefore dismissed based on
the facts and reasons set forth above and in the June 16, 2010 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 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
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-3-C
September 13, 2010
Page 3
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
PERB 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. (Cal.
Code
Regs, tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
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
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may 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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (b).)
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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit. 8, § 32135, subd. (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. 	(Cal. Code Regs, tit. 8, § 32132.)

SF-CO-3-C
September 13, 2010
Page 4
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI
R.
BOGERT
General Counsel
Regiona
Attachment
cc: Jolsna
M.
John, Associate House Counsel

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
June 16, 2010
Deborah Diane Williams
100 Hawthorn Drive #226
Fairfield, CA 94533
Re: 	Deborah Diane Williams
v.
Operating Engineers Local 3
Unfair Practice Charge No. SF-CO-3-C
WARNING LETTER
Dear Ms. Williams:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 17, 2010. Deborah Diane Williams (Williams or Charging
Party) alleges that the Operating Engineers Local 3 (Local 3 or Respondent) violated section 1
71631
of
the Trial Court Employment Protection and Governance Act (Trial Court Act or Act)
by failing and refusing to fairly represent her following her termination from employment with
the Superior Court
of
Alameda County (Court) on April 23, 2010.
Williams had been an employee
of
the Court for over twenty-two years. In September 2008,
she was promoted to Court Supervisor. The Court Supervisors are represented by Local 3. In
June 2009, Williams was subject to a layoff based on seniority. In April 2010, she was
recalled to work as a Court Supervisor, only to be laid off again on April 23, 2010 when the
Court's Human Resources department determined that she was not eligible for rehire because
she had not completed her 12-month probationary period prior to her initial layoff in June
2009.
Following the April 2010 termination, Williams contacted Local 3 for representation. Local 3
advised Williams that they would not assist her with the appeal
of
her termination. Based on
this failure and refusal to represent Williams in her appeal of her termination, Williams filed
the instant charge against Local 3.
In the charge Williams describes herself as a Court Supervisor. In response to the charge,
Local 3 asserts that the unit it represents is a management employee unit.
Section 7163 9
.1
of the Act spells out PERB' s authority over Trial Court employees.
Subsection ( c) states:
The Trial Court Act is codified at Government Code section 71600 et seq. 	The text of
the Trial Court Act and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-3-C
June 16, 2010
Page 2
A complaint alleging any violation
of
this article or
of
any rules
and regulations adopted by a trial court pursuant to Section 71636
shall be processed as an unfair practice charge by the board. The
initial determination as to whether the charge
of
unfair practice is
justified and,
if
so, the appropriate remedy necessary to effectuate
the purposes
of
this article, shall be a matter within the exclusive
jurisdiction
of
the board. The board shall apply and interpret
unfair labor practices consistent with existing judicial
interpretations
of
this article and Section 71639.3. The board shall
not issue a complaint in respect
of
any charge based upon an
alleged unfair practice occurring more than six months prior to the
filing
of
the charge, except that
if
the rules and regulations adopted
by a trial court require exhaustion
of
a remedy prior to filing an
unfair practice charge or the charging party chooses to exhaust a
trial court's remedy prior to filing an unfair practice charge, the
six-month limitation set forth in this subsection shall be tolled
during such reasonable amount
of
time it takes the charging party
to exhaust the remedy, but nothing herein shall require a charging
party to exhaust a remedy when that remedy would be futile.
Importantly, in subsection (e) which follows, the Act states:
This section does not apply to employees designated as
management employees under Section 7163 7 .1.
Section 7163 7
.1
states in relevant part:
For purposes
of
this article, in addition to those rules and
regulations that a trial court may adopt pursuant to, and in the same
manner as set forth in, Section 7163 6, any trial court may adopt
reasonable rules and regulations providing for designation
of
the
management and confidential employees
of
the trial court and
restricting those employees from representing any employee
organization that represents other employees
of
the trial court, on
matters within the scope
of
representation. Except as specifically
provided otherwise in this article, this section does not otherwise
limit the right
of
employees to be members of, and to hold office
in, an employee organization.
Without evidence that Court Supervisors are not "management employees" under Section
7163 7 .1, PERB does not have authority to further process this charge. (See California
Correctional Peace Officers Association (1997) PERB Decision No. 1226-S; Rocklin Teachers
Professional Association (1995) PERB Decision No. 1112 and Los Angeles Community
College District (1994) PERB Decision No. 1060.)

SF-CO-3-C
June16,2010
Page 3
For these reasons the charge,
as
presently written, does not state a prima facie case.2
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent
of
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
an amended charge or withdrawal
is
not filed on or before June 3 0, 2010 ,3
PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations
of
fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (lb id.)
3 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)