City and County of San Francisco (PERB 1643M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROBIN GIOVANNI MONTGOMERY,
Charging Party, Case No. SF-CE-166-M

Vv. PERB Decision No. 1643-M

CITY & COUNTY OF SAN FRANCISCO, 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 the City and County of San
Francisco violated the Meyers-Milias-Brown Act (MMBA)' by terminating her employment.

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 regional attorney states, the charges are being
dismissed because they are not timely filed.
In addition to being untimely, there is another problem with these charges. Re-filing
charges identical to those already dismissed can be an abuse of process. While we agree with
the Board agent's dismissal of this action, we believe Montgomery should also have been
warned that continuing to file charges after they have been dismissed may lead to sanctions.
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-CE-166-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA 	NOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
February 26, 2004
Robin Montgomery
Re: 	Robin Giovanni Montgomery v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-166-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
City & County of San Francisco violated the Meyers-Milias-Brown Act (MMBA) by
terminating her employment.
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," 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.
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.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-166-M
February 26, 2004
Page 2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
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-CE-166-M
February 26, 2004
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
By
Kristin L. Rosi
Regional Attorney
Attachment
cc: Phillip Ginsburg

STATE OF CALIFORNIA 	NOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
February 18, 2004
Robin Montgomery
Re: 	Robin Giovanni Montgomery v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-166-M
WARNING 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
City & County of San Francisco violated the Meyers-Milias-Brown Act (MMBA) by
terminating her employment.
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.
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. 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.
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.
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-CE-166-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.
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.
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 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 termination 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.
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 Dist. v. PERB shortened the statute of limitations 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.
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

SF-CE-166-M
February 18, 2004
Page 3
Decision No. 1177.)' 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 of Insurance) (1997) PERB Decision No. 1197-S.) As you
were aware of the City's conduct in November 2000, your charge, filed February 13, 2004, 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
corner 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. If I 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.)