Los Angeles City and County School Employees Union, Local 99 (Grove) (PERB 1973E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS
PETER NELSON GROVE,	NELSON GROVE,
Charging Party,	Charging Party,
V.
LOS ANGELES CITY & COUNTY SCHOOL
EMPLOYEES UNION, LOCAL 99,
Respondent.
Case No. LA-CO-1333-E
PERB Decision No. 	1973
August 26, 2008
Appearances: Peter Nelson Grove, on his own behalf; Rothner, Segall & Greenstone by
Jonathan Cohen, Attorney, for Los Angeles City and County School Employees Union,
Local 99.
Before Wesley, Rystrom and Dowdin Calvillo, Members.
DECISION
RYSTROM, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Peter Nelson Grove (Grove)
of
a Board agent's dismissal
of
his
unfair practice charge. The Board agent found that Grove's claim that the Los Angeles City &unfair practice charge. The Board agent found that Grove's claim that the Los Angeles City &
County School Employees Union, Local 99 (Local 99) violated the Educational Employment
Relations Act (EERA) 1 by failing to honor his request to cease deducting full dues following
his resignation
of
his union membership was untimely filed. 	The Board agent also found that
Grove's claim
of
a constitutional right to resign from union membership at any time and enjoy
an immediate reduction in membership dues was not within PERB' s jurisdiction. 	Grove's
charge was dismissed on both bases.	charge was dismissed on both bases.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
Appearances: P
Local 99.
E

Board has reviewed the entire record in this case, including but not limited to, the	The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, Local 99's position statement, the amended charge, the Board agent's	unfair practice charge, Local 99's position statement, the amended charge, the Board agent's
warning and dismissal letters, Grove's appeal of the dismissal, and Local 99's response	warning and dismissal letters, Grove's appeal of the dismissal, and Local 99' s response
thereto. Based on this review, the Board affirms the Board agent's dismissal for the reasons	thereto. Based on this review, the Board affirms the Board agent's dismissal for the reasons
stated below.	stated below.
FINDINGS OF FACT
Grove is employed by the Los Angeles Unified School District (District) as a bus driver
and at all times relevant herein was a member of Bargaining Unit C. Local 99 is the exclusive
representative of Bargaining Unit C. Local 99 and the District are parties to a collective
bargaining agreement (CBA) that is effective from December 14, 2006, through June 30, 2008.
On or about January 29, 2007, Grove wrote to Local 99, resigned his membership and
requested a deduction in his union dues. In that letter Grove stated that he authorized only
"those costs that are lawfully chargeable under the First Amendment to the United States
Constitution."
On April 15, 2007, Grove wrote again to Local 99 and complained that his union dues
deduction had not been reduced.
On June 13, 2007, Local 99's written response to Grove denied his request for a dues
reduction, citing the CBA' s "maintenance of membership" provision,2 and stating that it would
honor Grove's request provided that it was submitted during the appropriate window period.
2CBA Article VIII, section 5.0 provides that: "A dues deduction may only be revoked
by an employee in writing during the thirty (30) day period commencing ninety (90) days
before the expiration of the Agreement and/or upon expiration of the Agreement. The dues
deduction shall automatically terminate if an employee terminates employment or otherwise
ceases to be a member of the bargaining unit."
Constitution."
r
C
2

In his second letter to Local 99 dated August 16, 2007, Grove stated that he:
(1) acknowledged Local 99's June 13, 2007, refusal to honor his dues deduction request;
(2) disagreed with Local 99' s position that a dues deduction request is valid only if submitted
within the window period provided in the CBA; and (3) renewed his previous requests for an
immediate dues reduction.
By letter dated August 23, 2007, Local 99's attorney responded to Grove's August 16,
2007, letter. This response referenced Local 99's June 13, 2007, letter's denial of the same
request and reiterated the information contained in the June 13, 2007, letter.
Grove's third letter to Local 99, dated October 15, 2007, again demanded a dues rebate
disagreeing with Local 99's window period reasoning.
Grove's instant unfair practice charge was filed with PERB on February 13, 2008.
DISCUSSION
Grove's EERA Claim Was Untimely Filed
We agree with the Board agent that Grove's EERA claim was untimely and that Grove
has not alleged sufficient facts to show a continuing violation.
EERA section 3 541. 5 provides in pertinent part that 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." In Tehachapi Unified School District (1993)
PERB Decision No. 1024, the Board held that "In order to state a prima facie case a charging
party must allege and ultimately establish that the conduct complained of either occurred or
was discovered within the six-month period immediately preceding the filing of the charge."
The limitations period begins to run once, in the exercise of reasonable diligence, the charging
party knows, or should have known, of the conduct underlying the charge. 	(Fremont Unified
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District Teachers Association (Kaiser) (2003) PERB Decision No. 1572; Gavilan Joint
Community College District (1996) PERB Decision No. 1177.) A charging party bears the
burden of demonstrating that the charge is timely filed. 	(United Teachers of Los Angeles
(DePace) (2008) PERB Decision No. 1964; Los Angeles Unified School District (2007) PERB
Decision No. 1929.)
Local 99's June 13, 2007, letter to Grove unequivocally notified him that his dues
would not be reduced explaining as follows:
We declined your request to pay the reduced fair share fee
payable by non-members. The current collective bargaining
agreement, which was adopted on January 23, 2007, includes a
"maintenance of membership" provision, pursuant to which
members who authorize payroll deduction of dues can only
revoke that authorization during a 3 0-day window period that
commences 90 days prior to the agreement's expiration. The
expiration date of the current agreement is June 30, 2008. Thus,
your request to revoke that authorization must be submitted
between March 31 and April 30, 2008. Also, under state law you
may revoke that authorization during the 30 days following
expiration of the current agreement on June 30, 2008.
If you submit a revocation request at the appropriate time, we will
honor it.	honor it.
Grove acknowledges this in his August 10, 2007, letter to Local 99 in which he states:
"Unfortunately, your letter seems to indicate that you will not honor my right, as a
nonmember, to object to the collection and expenditure of any fees seized from me for
purposes unrelated to collective bargaining."
We find that the statute of limitations began running June 13, 2007, because that is
when Grove knew or at least should have known that Local 99 would not reduce his union
dues deduction prior to the window period provided for in the CBA.

The "Continuing Violation" Doctrine Does Not Extend Grove's Statute of Limitations Period
On appeal, Grove again3 asserts that his claim was timely and argues that each month
his membership dues are not reduced constitutes a continuing violation. Grove claims a
distinction between the "original offense" - the June 13, 2007 refusal, and the "changed
offense" - each subsequent "seizure" of dues from his paycheck. Grove, however, fails to
explain and cites no legal authority justifying his argument that the continuing deductions of
membership dues from his paycheck constitute "changed offenses."
On appeal, Grove again' a
Under the "continuing violation" doctrine, "a violation within the statute of limitations
period may 'revive' an earlier violation of the same type that occurred outside of the
limitations period." (Sacramento City Teachers Association (Franz) (2008) PERB Decision
No. 1959.)
However, an employee cannot show a continuing violation unless the nature of the
respondent's actions have changed. (State of California (Department of Corrections) (2003)
PERB Decision No. 1559-S, citing State of California (Department of Consumer Affairs)
(1994) PERB Decision No. 1066-S; El Dorado Union High School District (1984) PERB
Decision No. 382 (statute of limitations began running when district adopted the new sign-out
policy and requiring teachers to comply with employer's sign-out policy during the limitations
period did not constitute a reimplementation or revival of that policy); California State
Employees' Association (Calloway) (1985) PERB Decision No. 497-H (denial of subsequent
requests for representation did not constitute a continuing violation).)
P
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Grove raised this argument in his first amended charge which was filed in response to
the Board agent's warning letter.

To have the effect of being a continuing violation, a violation within the limitations
period must constitute an independent unfair practice without reference to the prior violation.
(North Orange County Community College District (1999) PERB Decision No. 1342.)
In this case, Grove has failed to demonstrate that his charge was timely because he has
not shown that the nature of Local 99' s actions have changed since it denied his request on	not shown that the nature of Local 99's actions have changed since it denied his request on
June 13, 2007. PERB has held that once the statutory period begins to run, an employee
"cannot cause it to begin anew by making the same request over and over again" because "such
a result would eviscerate the purpose of the statute of limitations." (California State
Employees Association, Local 1000, SEIU, AFL-CIO, CLC (Sutton) (2003) PERB Decision
No. 1553-S.)
Accordingly, we find that Local 99's refusal to reduce Grove's dues deduction has been
consistent since June 13, 2007, and that Grove has not alleged facts which demonstrate a prima
facie case that the "continuing violation" doctrine applies.
PERB Lacks Jurisdiction Over Grove's Constitutional Claim	PERB Lacks Jurisdiction Over Grove's Constitutional Claim
In his appeal Grove continues to assert that Local 99's refusal to reduce his union dues	In his appeal Grove continues to assert that Local 99's refusal to reduce his union dues
deduction violates his constitutional right to resign from union membership at any time. 	Grove	deduction violates his constitutional right to resign from union membership at any time. Grove
argues he is entitled to pay a fee "that covers the union's costs of collective bargaining,	argues he is entitled to pay a fee "that covers the union's costs of collective bargaining,
contract administration, and grievance adjustment (the 'financial core fee'), not the costs of the	contract administration, and grievance adjustment (the 'financial core fee'), not the costs of the
union's political, ideological and non-representational activities."	union's political, ideological and non-representational activities."
We disagree as set forth below and affirm the Board agent's dismissal of Grove's
constitutional claim.
In Kern High Faculty Association, CTA/NEA (Maaskant) (2007) PERB Decision
No. 1885, an employee alleged that his union's refusal to allow him to serve on its
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representative council violated his right of free association under the First Amendment to the
United States Constitution. In its decision, the Board explained that PERB's function was to
protect employees, employee organizations and employers from violations of organizational
and collective bargaining rights guaranteed by state labor laws4 and held that "PERB does not
have the authority to decide the constitutionality of any entity's actions or decisions and is
without jurisdiction over this aspect of the charge." (See Union of American Physicians &
Dentists (Menaster) (2007) PERB Decision No. 1918-S (PERB has no jurisdiction over the
United States Constitution); State of California (Department of Transportation) (2005) PERB
Decision No. 1735-S (Board lacks jurisdiction over the United States and California
Constitutions).)
ORDER
The unfair practice charge filed by Peter Nelson Grove in Case No. LA-CO-1333-E is
hereby DISMISSED WITHOUT LEA VE TO AMEND.
Members Wesley and Dowdin Calvillo joined in this Decision.	Members Wesley and Dowdin Calvillo joined in this Decision.
4(See Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 198 [172 Cal.Rptr.
487]; Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804;
[244 Cal.Rptr. 671].)
(
[244 Cal.Rptr. 671].)
7