Stationary Engineers Local 39 (Fisher) (PERB 1940M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DARRELL FISHER,
Charging Party,
V.
STATIONARY ENGINEERS LOCAL 39,
Respondent.
Case No. SF-CO-158-M
PERB Decision No. 	1940-M
January 18, 2008
Appearance: Darrell Fisher, on his own behalf.
Before Members McKeag, Wesley and Rystrom.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Darrell Fisher (Fisher) of a Board agent's dismissal of his unfair
practice charge. 	The charge alleges that Stationary Engineers, Local 39 (Local 39 or Union)
breached its duty of fair representation in violation of the Meyers-Milias-Brown Act (MMBA)1
by refusing to submit his grievance to arbitration and by failing to inform him of his civil
service commission appeal rights.
Based on a review of Fisher's appeal and the entire record in this case, the Board
affirms the dismissal of the charge.
BACKGROUND
Fisher was employed by the City and County of San Francisco (City) as a stationary
engineer assigned to the Port of San Francisco (Port). Fisher's classification is in the
bargaining unit exclusively represented by Local 39.
1MMBA is codified at Government Code section 3500, et seq.

On March 14, 2006,2 at approximately 10:30 a.m., the City work truck assigned to
Fisher was observed by Port officials parked on a city street several miles from Fisher's work
site. The vehicle was unlocked and the keys were in the ignition. Photographs were taken
of
the vehicle by a Port official and Fisher's supervisor attempted to contact him on his work
radio. 	Fisher did not immediately respond to the radio calls.
Fisher spoke with his supervisor at approximately
1:
15
p.m. Fisher denied leaving the
vehicle on a city street claiming he had been on Port property with the vehicle all morning. He
also told his supervisor that he did not immediately respond to the radio calls because he had
left his radio in the office.
Fisher contacted Local 39 and met with Business Representative Stephanie Allan
(Allan) on March
16
to discuss possible disciplinary action. During the meeting, which was
summarized by Allan in a letter the same day, Allan expressed concern regarding the evidence
against Fisher. She noted the City was in possession
of
photographs that showed the work
truck was
off
Port property. 	Allan also stated the City had five supervisors who would testify
they saw Fisher's vehicle on the city street. Allan doubted that Fisher1
s claim that he had the
vehicle with him on Port property would prevail in arbitration in light
of
the City's evidence.
Allan advised Fisher to consider an immediate retirement to preserve his pension and health
care benefits.
Local 39 represented Fisher at a Skelly3 hearing held on June 14.
On July 18, the City notified Fisher that his employment was terminated. The City also
provided Fisher with a Notice of Future Employment Restrictions advising him that he would
2All dates refer to 2006 unless otherwise noted.
3Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
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be denied future employment with the City. The notice advised Fisher
of
his right to appeal
the employment ban to the civil service commission within 20 days.
Local 39 filed a grievance challenging Fisher's termination on July
19.
	On August 17,
the Union represented Fisher at a meeting with City representatives to discuss Fisher's
termination. 	Subsequently, Local 39 advanced Fisher's grievance to Step 2
of
the grievance
procedure. On September 15, the City denied the grievance and upheld the termination
of
Fisher's employment.
In a letter dated October 16, Local 39 advised Fisher that it would not take his
grievance to arbitration. The letter stated:
After receiving the September 15, 2006 notice from the City's
Employee Relations Division upholding your termination, the
Union sought the advice
of
Local 39's attorneys. Upon reviewing
the file, including all the documents, arguments made on your
behalf by the Union and the analysis by management, the
attorneys have advised us that we cannot prevail before an
arbitrator. Therefore, we will not appeal this decision and seek
arbitration on the matter.
BOARD AGENT'S DISMISSAL
The Board agent found the charge untimely filed. 	Local 39 informed Fisher on
October 16 that it would not pursue arbitration
of
his grievance. The Board agent concluded
that Fisher should have filed his charge within six months
of
October 16. Fisher did not file
his charge until June 25, 2007.
Even if timely filed, the Board agent concluded the charge did not state a prima facie
case. The Board agent found the charge did not demonstrate that Local 39's decision declining
to take his grievance to arbitration demonstrated arbitrary or discriminatory conduct.
(International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M.)
Furthermore, the Board agent advised Fisher that Local 39 did not have a duty of fair
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representation over extra-contractual matters, such as the civil service commission appeal.
(California State Employees Association (Parisi) (1989) PERB Decision No. 733-S.)4
FISHER'S APPEAL
Fisher generally complains that Local 39 did not provide adequate representation or
notify him
of
his right to appeal future employment restrictions with the civil service
comm1ss1on. Fisher's appeal did not address the timeliness
of
his charge.
DISCUSSION
The issue in this case is whether Fisher's charge was filed within the statutory
limitations period. 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.) 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, CFT/AFT
(Violett, et al.) (1991) PERB Decision No. 889.)
Local 39 filed a grievance on Fisher's behalf and represented him at the Skelly hearing
and in meetings with City representatives. 	After the City denied Fisher's grievance and upheld
the termination of his employment, Local 39 reviewed the case to determine whether to submit
the grievance to arbitration. 	On October 16, Local 39 notified Fisher that it would not take his
grievance to arbitration. The Union's decision on October 16 declining to pursue the grievance
to arbitration was conclusive.
4When 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. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
4

The charge was filed on June 25, 2007. Thus, the statutory limitations period extended
six months prior to the filing
of
the charge to December 25, 2006. Fisher knew or should have
known on October 16, 2006 that further assistance from Local 39 was unlikely. 	This date
is
more than two months outside the statutory limitations period. Accordingly, the charge is
untimely filed and
is
dismissed on that basis.
ORDER
The unfair practice charge in Case No. SF-CO-158-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
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