Service Employees International Union Local 790 (Montgomery) (PERB 1644M)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROBIN GIOVANNI MONTGOMERY,
Charging Party, Case No. SF-CO-42-M

V. PERB Decision No. 1644-M

SEIU LOCAL 790, June 15, 2004

Respondent.

Appearance: Robin Giovanni Montgomery, on her own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal of a Board agent’s dismissal (attached) of Robin Giovanni Montgomery’ s
(Montgomery) unfair practice charge. The charge alleged that SEIU Local 790 conspired with
the City and County of San Francisco in violation of the Meyers-Milias-Brown Act (MMBA)’
to terminate her employment and further failed to file grievances on her behalf.

The Board has reviewed the entire record in this case, including the unfair practice
charge, the appeal and other correspondence from Montgomery, and the Board agent’s warning
and dismissal letters. The Board finds the warning and dismissal letters to be free from
prejudicial error and adopts them as the decision of the Board itself, subject to the discussion

below.

‘The MMBA is codified at Government Code section 3500, et seq.

DISCUSSION
The charge filed by Montgomery was originally filed August 23, 2001, and dismissed
as lacking merit on August 6, 2002. 	This re-filing of the same charge is untimely under the
statute of limitations of the MMBA. As the Board agent states, the charges are being
dismissed because they are not timely filed.
After thoroughly reviewing the charges, attachments and correspondence from
Montgomery, the Board agrees that Montgomery has failed to state a prima facie case. 	The
charges must therefore be dismissed.
ORDER
The unfair practice charge in Case No. SF-CO-42-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

,'/OLD SCHWARZENEGGER, Governor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD,..o~TRtc.,,,..,,
F
C/11>.\
San Francisco Regional Office
1330 Broadway, Suite I 532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax (510) 622-1027
February 26, 2004
Robin Montgomery
5750 E. Shields Avenue, #124
Fresno, CA 93727
Re: 	Robin Giovanni Montgomery
v.
SEIU Local 790
Unfair Practice Charge No. SF-CO-42-M
DISMISSAL LETTER
Dear Ms. Montgomery:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 13, 2004. Robin Giovanni Montgomery alleges that the
SEIU Local 790 violated the Meyers-Milias-Brown Act (MMBA) 1 by breaching its duty
of
fair
representation.
I indicated to you in my attached letter dated February 18, 2004, 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 which 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 February 25, 2004, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my February 18, 2004 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you 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. 	(Regulation 32635(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 before the close
of
business (5 p.m.)
on the last day set for filing. 	(Regulations 32 l 35(a) and 32130.) A document is also
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 www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3100 I et seq.

SF-CO-42-M
February 26, 2004
Page 2
considered "filed" when received by facsimile transmission before the close
of
business on the
last day for filing 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 95814-4174
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. (Regulation 32635(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 Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may 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.

SF-CO-42-M
February 26, 2004
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
By_~----'--/
	__
2~/,~'-=---
Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Vincent Harrington

.~OLD	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ilJ-E.NT RE{	
~,,,O 	.,,,>o
,."'"~o~'i-+'
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone (510) 622-l 022
fax (510) 622-1027
February 18, 2004
Robin Montgomery
5750 E. Shields Avenue, #124
Fresno, CA 93727
Re: 	Robin Giovanni Montgomery v. SEIU Local 790
Unfair Practice Charge No. SF-CO-42-M
WARNING LETTER
Dear Ms. Montgomery:
SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 13, 2004. Robin Giovanni Montgomery alleges that the
SEIU Local 790 violated the Meyers-Milias-Brown Act (MMBA) 1 by bre.aching its duty of fair
representation.
Investigation of the charge revealed the following. 	You were employed by the City and
County of San Francisco as a Public Safety and Communications Dispatcher, assigned to the
Emergency Communications Division (ECD). As such, you were exclusively represented by
the SEIU Local 790. The City terminated your employment on November 16, 2000, asserting
that you failed to report to work when assigned. 2
On March 27, 2000, you informed your supervisor that you would not report to work effective
March 30, 2000, because of health and safety concerns relating to asbestos abatement. 	You
sent a copy of this letter to SEIU representative Tim West. On April 5, 2000, the ECD sent
you a letter indicating the air quality in your workplace had been tested and that the air was
found to be free of asbestos. As such, you were instructed to report to work on April 6, 2000.
On April 6, 2000, you reported for work ninety (90) minutes late. As such, Wayne Propoalis,
Police Communications Supervisor, issued you a written reprimand and placed that reprimand
in your personnel file. 	You contend this action violated the MOU. On April 14, 2000, you
again informed the ECD that you would not report to work due to asbestos abatement. 	You
further requested the City pay you for the time you refused to report to work. You again sent
Mr. West a copy of this letter.
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 www.perb.ca.gov.
2 On August 23, 2001, you filed an unfair practice charge with PERB regarding the
identical issues presented herein (SF-CE-12-M). On August 6, 2002, that charge was
dismissed as lacking merit. As the facts in both charges are substantially similar, I will provide
only an outline of the relevant facts herein.

SF-CO-42-M
February 18, 2004
Page 2
On April 17, 2000, Communications Director Rex Martin provided you with a report from
CAL/OSHA which indicates the air in your workplace is asbestos-free. You were again
instructed to report to work for your next scheduled assignment. You refused to report to
work, citing California law. You assert SEID failed to intervene in this matter.
On May 15, 2000, the City informed you that it would not pay you for your time off and
further informed you that you were considered absent without leave (AWOL). You allege the
City refused to pay you because you filed a safety grievance. However, contract language
between the City and SEIU indicates you will be paid only if you execute an agreement
indicating you will repay the City if the complaint was invalid. You did not execute such an
agreement. Additionally, on that date, you attempted to contact SEID representative Lawanna
Preston, but Ms. Preston was unavailable.
On June 19, 2000, Director of Emergency Communications, Thera Bradshaw, sent a letter
indicating the following: 	(1) you had been AWOL since April 14, 2000; (2) your workplace
safety concerns had been addressed; and (3) you had failed to respond to repeated requests to
return to work. Ms. Bradshaw ordered you to report to work on June 22, 2000.
On June 22, 2000, you informed the City you were taking Family Medical Leave, although it
appears you failed to file the proper paperwork for such leave. On July 11, 2000, Mr. West
indicated he would file a grievance on your behalf. It appears he failed to do so.
On September 15, 2000, Ms. Bradshaw again instructed you to report to work. Again, you
refused to return to work alleging health and safety concerns.
On October 30, 2000, Ms. Bradshaw sent you a letter indicating the City's intent to terminate
your employment due to your AWOL status. On November 2, 2000, you received notice of
your te1mination hearing. On November 8, 2000, the City conducted a Skelly hearing
regarding your termination. You failed to attend this hearing, and your termination became
effective November 9, 2000. SEID did not represent you at the hearing, as it appears you did
not contact them.
In November 2000, you filed a small claims action against SEID for repayment of union dues.
Your court case was dismissed, as PERB has exclusive jurisdiction over such matters.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation of the MMBA, for the reasons provided below.
Code of Civil Procedure section 338 prohibits PERB from issuing a complaint with respect to
any charge based upon an alleged unfair practice occurring more than three years prior to the
filing of the charge. A recent Court of Appeal decision in Coachella Valley Mosquito
Abatement v. PERB shortened the statute oflimitations period under the MMBA to six
months. However, this case is currently on appeal to the Supreme Court, and thus the three
year statute of limitations will be applied to your charge.

SF-CO-42-M
February 18, 2004
Page 3
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. )3 The statute of limitations is an affirmative defense which has been raised
by the respondent in this case. (Long Beach Community College District (2003) PERB
Decision No. 1564.) Therefore, charging party now bears the burden of demonstrating that the
charge is timely filed. (cf. Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department ofinsurance) (1997) PERB Decision No. 1197-S.)
In cases alleging a breach of the duty of fair representation, the statutory limitations period
begins to run on the date when the charging party, in the exercise ofreasonable diligence,
knew or should have known that further assistance from the union was unlikely. (Los Rios
College Federation of Teachers, CFT/AFT (1991) PERB Decision No. 889; United Teachers of
Los Angeles (2001) PERB Decision No. 1441.) Repeated union refusals to process a
grievance over a recurring issue do not start the limitations period anew. (California State
Employees Association (1985) PERB Decision No. 497-S.) As you knew in November 2000
of SEIU's alleged failure to represent you, this charge is untimely filed and must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie 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
comer 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. Ifl do not receive an
amended charge or withdrawal from you before February 25, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR
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.)