California State University Employees Union, Service Employees International Union Local 2579 (Kyrias) (PERB 2175H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
V ALINDA KYRIAS,
Charging Party,
V.
CSU EMPLOYEES UNION, SEIU LOCAL 2579,
Respondent.
Case No. SF-CO-172-H
PERB Decision No. 2175-H
March 25, 2011
Appearance: Valinda Kyrias, on her own behalf.
Before Dowdin Calvillo, Chair; McKeag and Miner, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Valinda Kyrias (Kyrias)
of
a Board agent's dismissal
of
her unfair practice charge. The charge alleged that CSU Employees Union, SEIU Local 2579
(CSUEU) violated the Higher Education Employer-Employee Relations Act (HEERA) 1 when
it failed to file a timely request to move Kyrias' grievance to arbitration. The Board agent
dismissed the charge on the basis that it was not timely filed, and that it failed to establish a
prima facie case
of
a breach
of
the duty
of
fair representation or retaliation for protected
activity.
The Board has reviewed the dismissal and the record in light
of
Kyrias' appeal and the
relevant law. Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
Kyrias is an employee at Sonoma State University (SSU) and a member of a bargaining
unit that is exclusively represented by CSUEU. Kyrias became a CSUEU steward in 2003. 	In
2007, Kyrias filed a grievance on behalf of employees after CSUEU Labor Relations
Representative Phillip Coonley (Coonley) refused to file it. After prevailing on the grievance,
Kyrias resigned as a CSUEU steward.
In early 2008, Kyrias filed a grievance alleging that SSU violated the collective
bargaining agreement (CBA) between CSUEU and the California State University (CSU) when
it moved her to another job and gave her prior position to another employee. A CSUEU
steward originally represented Kyrias in this grievance but at some point she decided to
represent herself. Around this same time, two other employees asked Kyrias if she would
represent them in grievances. After explaining to the employees that she was no longer a
CSUEU steward, the employees agreed that she could represent them as a fellow employee.2
After receiving Level III grievances from Kyrias, CSU Labor Relations Manager
Teyanna Williams (Williams) contacted CSUEU Labor Relations Representative Michael
Hejazi (Hejazi) about Kyrias' status as a steward. On June 25, 2008, Kyrias, Hejazi, and
CSUEU steward Liona Spring held a teleconference to discuss the grievances. During the call,
Hejazi stated that only CSUEU could represent grievants at Level III. 	When Kyrias responded
that under the CBA employees have the right to be represented by a fellow employee at
Level III, Hejazi accused Kyrias of taking his job. Hejazi then requested that Kyrias confirm
she was no longer a steward; Kyrias responded that she had not been a steward since
2 Article 7.3 of the CBA provides that "a Union Representative or an employee" may
represent a grievant through Level III of the grievance procedure. "Representation at Level IV
[arbitration] shall be by the Union only."
2

July 15, 2007. The following day, Hej azi sent a letter to Williams stating that Kyrias was no
longer a CSUEU steward or an agent of CSUEU.
On August 13, 2008, CSU denied Kyrias' grievance at Level III. The following day,
Kyrias gave Hejazi all documentation from Level III and asked him to notify CSU that she
wished to arbitrate the grievance. Per CBA Article 7.19, CSUEU had forty days to notify CSU
that it wanted to submit the grievance to arbitration. Kyrias reminded Hejazi on August 27,
and September 5, 11 and 15 that she wanted arbitration of her grievance; Hejazi responded
with comments indicating that CSUEU was reviewing the merits of her case.
On September 15, Coonley, who had been promoted to Administrative Manager,
emailed Kyrias that the arbitration notice would be submitted by September 22, the fortieth day
following the denial of the grievance at Level III. 	Kyrias requested a copy of the arbitration
request from Coonley on September 25, 26, and 30.
On September 30, Kyrias received CSU's position statement in PERB Case No.
SF-CE-870-H.3 The filing stated that CSUEU had not notified CSU of its intent to arbitrate the
grievance. That same day, Coonley told Kyrias via email that he would check with Hejazi to
see if he had filed the notice. 	On October 1, Coonley emailed Kyrias that he would file a
notice because he found no record of one in Hejazi's files. 4
On October 10, Coonley emailed Kyrias that CSU had rejected the ,arbitration request
as untimely, that CSU could waive the untimeliness defense to avoid the PERB proceedings,
and that the CSUEU representation committee would review her grievance on the merits at its
3 Although Kyrias did not provide a copy of the grievance over her position change, it
appears from statements in the charge that the grievance contained the same factual allegations
as the charge in PERB Case No. SF-CE-870-H. The Board affirmed the dismissal of that
charge in Trustees of the California State University (2009) PERB Decision No. 2038-H.
4 Attached to the charge is a copy of an October 1, 2008 letter from Coonley to CSU
Human Resources requesting arbitration of a grievance. It appears, however, that the letter
references one of Kyrias' other grievances, not the one she filed over her position change.
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November meeting. Attached to the email was a letter from CSU Human Resources stating
that the arbitration request was untimely and that Kyrias' complaints about SSU's retention
of
employees' sexual harassment training records were not arbitrable. Following a subsequent
email in which Kyrias pointed out the apparent confusion over which grievance she wanted to
arbitrate, Coonley emailed Kyrias on October 27, 2008, saying he would communicate to CSU
that CSUEU had always intended to arbitrate the grievance over Kyrias' change in position.
DISCUSSION
1.
	New Allegations on Appeal
In her appeal, Kyrias raises allegations that were not presented in the original or
amended charge, such as retaliation by CSUEU against an employee whom Kyrias represented
in a grievance and CSUEU' s failure to follow its internal procedures in deciding whether to
arbitrate her position change grievance. "Unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b).)5 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.)
The Board agent dismissed Kyrias' charge on July 22, 2010. All
of
the dates
of
the
events alleged for the first time on appeal predate the dismissal, 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.
2. 	Statute of Limitations
HEERA section 3563.2, subdivision (a) prohibits PERB from issuing a complaint with
respect to "any charge based upon an alleged unfair practice occurring more than six months
5 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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prior to the filing
of
the charge." 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.) A charging party bears the
burden
of
demonstrating that the charge is timely filed. 	(Long Beach Community College
District (2009) PERB Decision No. 2002.)
Kyrias filed this charge on April 13, 2009. Therefore, only allegations
of
conduct by
CSUEU that occurred, or that Kyrias discovered, after October 13, 2008 are timely. The
charge alleged that Hejazi's failure to file a timely request for arbitration
of
Kyrias' position
change grievance breached CSUEU' s duty
of
fair representation, constituted retaliation against
Kyrias for her protected activity
of
representing other employees, and interfered with her rights
under HEERA. However, this alleged conduct occurred no later than September 22, 2008, the
final day for CSUEU to file the arbitration request under the CBA timeline. Furthermore,
Kyrias learned on September 30, 2008 that CSUEU had not filed the request by the
September 22 deadline. Thus, the alleged violations occurred, and Kyrias first learned
of
them, more than six months before she filed this charge. Accordingly, the aliegations are
barred by the statute
of
limitations.
Responding to the warning letter's conclusion that the charge was untimely, Kyrias
pointed out in her amended charge that CSUEU was still making efforts on her behalf as late as
October 27, 2008, when Coonley told her he would clarify to CSU that CSUEU had intended
to request arbitration of her position change grievance. However, the charge did not allege that
any conduct by CSUEU after October 13, 2008 breached its duty of fair representation, or was
an act ofretaliation or interference. Indeed, the amended charge stated, "Coonley's actions
were an attempt to cure Hejazi's breach of the Union's duty of fair representation." Kyrias'
reliance on Coonley's conduct in October 2008 is therefore unavailing.
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ORDER
The unfair practice charge in Case No. SF-CO-172-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Miner joined in this Decision.
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