South Placer Fire Protection District (PERB 1944M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SOUTH PLACER FIRE ADMINISTRATIVE
OFFICERS ASSOCIATION,
Charging Party, Case No. SA-CE-447-M
Vv. PERB Decision No. 1944-M
SOUTH PLACER FIRE PROTECTION February 27, 2008
DISTRICT,
Respondent.

Appearances: Carroll, Burdick & McDonough by Gary M. Messing and Jason H. Jasmine,
Attorneys, for the South Placer Fire Administrative Officers Association; Pinnell & Kingsley
by Paul R. Gant, Attorney, for South Placer Fire Protection District.
Before Neuwald, Chair, McKeag and Wesley, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the South Placer Fire Administrative Officers Association
(Association) of a Board agent’s dismissal (attached) of the unfair practice charge. The charge
alleged that the South Placer Fire Protection District (District) violated the Meyers-Milias-
Brown Act (MMBA)' when it unilaterally removed work from a bargaining unit represented by
the Association. The Association alleged this conduct constituted violations of MMBA

sections 3502, 3504, 3504.5, 3505 and PERB Regulations” 32603(a), (b), (c) and 32620(b)(4).

The Board agent found the unfair practice charge was not timely filed and dismissed the case.

'MMBA is codified at Government Code section 3500, et seq.

°PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

We have reviewed the entire record in this matter, including but not limited to, the
initial and amended charges, the District's position statement, the warning and dismissal
letters, the Association's appeal and the District's response. 	Based on this review, we find the
unfair practice charge was not timely filed. 	Accordingly, the Board hereby dismisses the
unfair practice charge for the reasons set forth below.
BACKGROUND
The Association represents the Battalion Chief bargaining unit which, prior to
September 2005, included the position of Emergency Medical Services (EMS) Administrator.
On September 21, 2005, the District's governing board revised the job description for the EMS
Administrator. This revised position was designated a Division Chief position and renamed
EMS Officer, Division Chief. Division Chief positions, however, were not included in the
Battalion Chief unit. 	Consequently, the EMS Officer, Division Chief position was moved out
of the Battalion Chief unit and was no longer represented by the Association. On October 5,
2005, the District provided the Association with the revised job description for its Operations
Manual.
On June 16, 2006, the District announced that, effective June 24, 2006, an employee
would begin working as the EMS Officer, Division Chief. On July 10, 2006, the President of
the Association, Jim Stephens, wrote a letter to the District which provides, in relevant part:
[The Association] formally grieves the appointment of the
position of Division Chief EMS. 	Since the EMS Administrator
position exists within this bargaining unit as a recognized
position it must remain as part of this contract until such time as
the contract is renegotiated.
The District has failed to bring this unilateral change to the terms
and conditions of employment set forth in the existing contract in
violation of Government Code Section 3500 (Meyers-Milias
2

Brown Act) and Articles 17,
18
and 19
of
the Memorandum
of
Understanding currently in effect with this unit.
We respectfully request that [sic] position recently appointed and
previously titled EMS Administrator, be rescinded and
reappointed per our current contract.
The Association alleges this conduct by the District constituted an unlawful unilateral
change in violation
of
the MMBA.
DISCUSSION
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 & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 3 5 Cal.4th 1072 [29 Cal.Rptr.3d 234].) 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
(Gavilan).)3 The charging party 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 oflnsurance) (1997) PERB Decision No. 1197-S.)
In this case, the Association knew the District revised the EMS Administrator position
to the EMS Officer, Division Chief position on September 21, 2005. Accordingly, the
Association had until March 21, 2006, to file its charge. 	Since the charge was filed on
December 7, 2006, well outside the limitation period, the charge was not timely filed and
properly dismissed.
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. 	(Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608
[ 116 Cal.Rptr. 5 07].)
3

On appeal, the Association argues the charge was not based on the District's creation
of
a new classification outside the bargaining unit. Rather, the Association claims the charge was
based on the fact that the Association was first noticed on June 16, 2006, that the District
intended to remove work from the bargaining unit on June 24, 2006, in violation
of
the zipper
clause in the memorandum
of
understanding. We disagree.
In a unilateral change case, the statute
of
limitations begins to run on the date the
charging party has actual or constructive notice
of
the respondent's intent to implement a
change in policy. 	(Gavilan.) Here, the Association argues that the statute
of
limitations began
running when it received notice
of
the District's actual implementation
of
the change.
However, the Board has long rejected arguments that a unilateral change does not occur until it
is implemented. 	(Folsom-Cordova Unified School District (2004) PERB Decision No. 1712;
Clovis Unified School District (2002) PERB Decision No. 1504.) Thus, a charging party that
rests on its rights until actual implementation
of
the change bears the risk
of
running afoul
of
the statute
of
limitations.
Based on the foregoing, the Association had until March 21, 2006, to file its charge.
The mere fact that the Association was notified on June 16, 2006, that the District intended to
fill the EMS Officer, Division Chief position does not reset or otherwise restart the running
of
the statute
of
limitations. 	Since the charge was filed on December 7, 2006, well outside the
limitation period, the charge was not timely filed and properly dismissed.
4

ORDER
The unfair practice charge in Case No. SA-CE-447-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Neuwald and Member Wesley joined in this Decision.
5

STA~.·,,
O~<'
CALIFORNIA	
(,"
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT
'
kELATIONS
BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
June 11, 2007
Gary M. Messing, Attorney
Carroll & Burdick
1007 7th Street, Suite 200
Sacramento, CA 95814
Re: 	South Placer Fire Administrative Officers Association v. South Placer Fire Protection
District
Unfair Practice Charge No. SA-CE-447-M, Second Amended Charge
DISMISSAL LETTER
Dear Mr. Messing:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2006. The South Placer Fire Administrative Officers
Association (SPF AOA) alleges that the South Placer Fire Protection District (District) violated
section 3506
of
the Meyers-Milias-Brown Act (MMBA)1 by unilaterally changing the EMS
Administrator position from one included in the Battalion Chief classification to one in the
Division Chief classification.
I informed you in my attached letter dated April 11, 2007, 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 aprima
facie case or withdrew it, the charge would be dismissed. On April 27, 2007, you filed a
Second Amended Charge.
In the attached letter, I explained that the charge was untimely filed because the SPF
AOA
knew on September 21, 2005, that the District was creating an EMS Officer position outside
of
the bargaining unit and the District did not waver from this position. Although SPFAOA
contended that the statute
of
limitations period should begin to run on June 24, 2006, when the
new EMS Officer, Division Chief began working, the Warning Letter cited the following
authority to the contrary. A charging party must file a charge when it has actual or
constructive notice
of
a clear intent to implement the action which constitutes the basis for the
unfair practice, provided that nothing subsequent to that date evinces a wavering of that intent.
The charging party may not wait until actual implementation occurs. 	(See Peralta Community
College District (1998) PERB Decision No. 1281.)
1 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.

SA-CE-44 7-M
June 11, 2007
Page 2
In the Second Amended Charge, SPF AOA contends the charge is timely filed because the
parties' MOU includes a zipper clause. 	SPFAOA argues that the District did not take action to
violate the parties' MOU until at least June 16, 2006, when the District announced that an
employee would be promoted to the EMS Officer, Division Chief position effective
June 24, 2006. 	SPF AOA asserts that it was not obligated to bargain about changes to its MOU
during the life
of
the MOU because it included a zipper clause. SPFAOA then argues:
Thus, in absence
of
an agreement between the parties, no change
could be made to the MOU. The parties were not required to
bargain over the proposed changes. 	Because the District did not
take action to violate the contract until at least June 16, 2006, the
statutory time period could not begin to run until at least that
date. Thus, the SPFAOA's December 7, 2006 unfair practice
charge was timely. 	[footnote omitted.]
In a footnote to this argument, SPFAOA acknowledges the Board's holding in Peralta
Community College District, supra, and argues it is distinguishable because this case involves
a zipper clause. 	SPF AOA also argues the charge is timely filed due to tolling.
The above-stated information does not correct the deficiencies noted in the Warning Letter.
SPF AOA knew that the District was creating an EMS Officer position outside
of
the
bargaining unit on September 21, 2005. 	The charge does not present facts indicative
of
a
wavering
of
intent. The existence
of
a zipper clause does not change the statute
of
limitations
period. Nor has SPF AOA provided any facts supporting its assertion that the statute
of
limitations should be tolled. As such, the charge must be dismissed as untimely filed.
Right to Appeal
Pursuant to PERB Regulations,2 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.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 3213 5(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 3213 5(b ), ( c)
and (d); see also Regulations 32090 and 32130.)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-447-M
June 11, 2007
Page 3
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
103
1 18th Street
Sacramento, CA 95814-4174
(916) 322-8231
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also 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.)

SA-CE-447-M
June 11, 2007
Page 4
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
..-=-
~f,u,,u./
TammySamel
Senior Regional Attorney
Attachment
cc: 	Paul R. Gant

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
April 11, 2007
Gary Messing, Attorney
Carroll & Burdick
1007 7th Street, Suite 200
Sacramento,
CA
95814
Re: 	South Placer Fire Administrative Officers Association v. South Placer Fire Protection
District
Unfair Practice Charge No. SA-CE-447-M, First Amended Charge
WARNING LETTER
Dear Mr. Messing:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2006. The South Placer Fire Administrative Officers
Association (SPF AOA) alleges that the South Placer Fire Protection District (District) violated
the Meyers-Milias-Brown Act (MMBA)1
by unilaterally changing the EMS Administrator
position from one included in the Battalion Chief classification to one in the Division
Chief
classification. My investigation revealed the following information.2
SPF AOA represents the Battalion Chief bargaining unit, which includes an EMS Officer, EMS
Coordinator or EMS Administrator position.
On
September 21, 2005, the District revised the
job
description for the EMS Officer, to make it a Division Chief position. Division
Chiefpositions are not within the unit represented
by
SPF AOA.
SPFAOA was aware
of
the District's action on September 21, 2005, when SPFAOA attended
the board meeting during which the change was adopted. On October 5, 2005, the District
provided the revised
job
description to SPF AOA in its Operations Manual.
On June 16, 2006, the District announced that effective June 24, 2006, an employeewould
begin working as the EMS Officer, Division Chief. 	On July 10, 2006, SPF AOA President Jim
Stephens, wrote the following letter to the District:
SPFAOA formally grieves the appointment
of
the position
of
Division Chief EMS. 	Since the EMS Administrator position
exists within the bargaining unit as a recognized position it must
1 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.
2 The charge referenced unfair practice charge SA-CE-380.:.M. In or about February
2006, PERB issued a complaint in that charge alleging the District unlawfully reclassifiedthe
incumbent Fire Marshal as an Assistant Chief on September 21, 2005.

SA-CE-447-M
April 11, 2007
Page 2
remain as part
of
this contract until such time as the contract is
renegotiated.
The District has failed to bring this unilateral change to the terms
and conditions
of
employment set forth
in
the existing contract
violation
of
Government Code Section 3500 (Meyers-Milias
Brown Act) and Articles 17, 18, and 19
of
the Memorandum
of
Understanding currently in effect with this unit.
We respectfully request that position recently appointed and
previously titled EMS Administrator, be rescinded and
reappointed per our current contract.
In addition to the above-described grievance, this charge was filed.
In
its position statement,
the Respondent alleges that the charge was untimely filed. 	The Charging Party clarified its
position regarding the charge as follows:
While it may be true that the District created the EMS Officer
position on or about September 21, 2005, that is not the subject
of
the original grievance, nor is it the subject
of
the ULP. Rather,
the ULP is based on the District's June 24, 2006 [Exhibit 2]
decision to take the work that had previously been performed by
the EMS Administrator (in the SPFAOA bargaining unit) and
assign it to the EMS Officer.
* 	* 	* 	* 	* 	* 	* 	* 	*
Contrary to the District's assertions, the SPF AO A could not have
had actual notice
of
the District's act
of
removing work from the
bargaining unit on September 21, 2005, or October 5, 2005. The
District's improper action was its removal
of
work from the
bargaining unit without bargaining, and in violation
of
the zipper
clause in the MOU between the parties. This action happened no
earlier than June 16, 2006. 	Thus, the SPF AOA ULP is timely.
The above-stated information fails to state a prima facie violation for the reasons that follow.
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 [29 Cal.Rptr.3d 234].) The limitations period begins to run once the charging
party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint

SA-CE-447-M
April 11, 2007
Page 3
Community College District (1996) PERB Decision No. 1177.)3 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.)
The facts indicate that the SPFAOA knew on September 21, 2005, that the District was
creating an EMS Officer position outside
of
the bargaining unit. The job description clearly
indicates that the position
is
a Division Chief position. Although the Charging Party contends
the statute
of
limitations period should begin to run on June 24, 2006, when the new EMS
Officer, Division Chief began working, the facts do not support such a conclusion. 	The
charging party must file a charge when it has actual or constructive notice
of
a clear intent to
implement the action which constitutes the basis for the unfair practice, provided that nothing
subsequent to that date evinces a wavering
of
that intent. The charging party may not wait until
actual implementation occurs. (See Peralta Community College District (1998) PERB
Decision No. 1281.) It appears the District implemented the change or transfer
of
work on
September 21, 2005. The charge does not provide facts indicating that the District wavered
from this position. As such, SPFAOA had until March 21, 2006 to file this unfair practice
charge. Thus, the charge 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 April 23, 2007, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
---	
7
!M1u4!11v{7
Tammy Samsel
Senior Regional Attorney
TLS
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.)