Decision A270E – Davis Teachers Association (Heffner)

An exclusive representative does not violate the duty of fair representation by refusing to represent a unit memeber who seeks vindication of rights in a non-contractual administrative or judicial forum not controlled by the exclusive representative such as under the Education Code; p. 7, 8, ALJ's order. The national affiliate of an exclusive representative does not become an exclusive representative through affiliation with a local chapter; p. 7, ALJ's order.

The national affiliate of an exclusive representative does not become an exclusive representative through affiliation with a local chapter; p. 7, ALJ's order.

The national affiliate of an exclusive representative does not become an exclusive representative through affiliation with a local chapter; p. 7, ALJ's order.

Timeliness cannot be waived either by the parties or the Board itself and need not be plead affirmatively but is part of the charging party's burden of proof; p. 5, ALJ's order. Limitations period begins when charging party has actual or constructive notice of respondent's clear intent and nothing subsequent evinces waivering; Charging party's failure to understand the legal significance of the actions taken against him until later does not excuse an otherwise untimely filing; p. 6, ALJ's order.

The six-month period is to be computed by excluding the day the alleged misconduct took place and including the last day, unless the last day is a holiday, and then it also is excluded; p. 5, ALJ's order.

Under the continuing violation theory even if the first act in a series was outside the period of timeliness, the underlying unfair practice may be revived by a subsequent act within the statutory period. But it is critical in allegations involving continuing violations that the subsequent act itself sets out a prima facie unfair practice; where the subsequent act is by someone not an agent of respondent, there is no prima facie case; p. 6, ALJ's order.