City and County of San Francisco (PERB A391M)

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_ STATE OF CALIFORNIA aera
DECISION OF THE eae,
PUBLIC EMPLOYMENT RELATIONS BOARD Nl
OLUCHI NNACHI,
Case No. SF-CE-657-M
Charging Party,
Administrative Appeal
V.

PERB Order No. Ad-391-M

CITY & COUNTY OF SAN FRANCISCO,
November 9, 2011

Respondent.

Appearances: Oluchi Nnachi, on his own behalf; Office of the City Attorney by Stacey A.
Lucas, Deputy City Attorney, for City & County of San Francisco.

Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Oluchi Nnachi (Nnachi) of a dismissal (attached) of an unfair
practice charge by a Board agent and request to accept a late filing. The charge alleged that the
City & County of San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA)! when
it demoted him without regard to his seniority rights. Nnachi alleged that this conduct
constituted a violation of MMBA section 3506 and PERB Regulation 32603(a).”

The Board agent found the charge was not timely filed. Additionally, the Board agent

found that Nnachi failed to plead sufficient facts to establish a prima facie case of discrimination

in violation of the MMBA. Accordingly, the Board agent dismissed the charge.

' MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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

We have reviewed the entire record in this matter and find the Board agent's warning and
dismissal letters to be well-reasoned, free
of
prejudicial error and in accordance with applicable
law. Accordingly, we hereby adopt the warning and dismissal letters as the decision
of
the
Board itself, subject to the following discussion.
MOTION TO ACCEPT LATE FILING
In the June 23, 2010, dismissal letter, Nnachi was informed that he could appeal the
Board agent's determination by filing an appeal to the Board itself within 20 days following the
service
of
the dismissal. Nnachi's appeal, however, was received by the Board on July 29, 2010,
well outside the 20-day-limit.
PERB Regulation 32136 provides that the Board may excuse a late filing for good cause.
The Board has found good cause when the explanation for the late filing was "reasonable and
credible" and the delay did not cause prejudice to any party. (Barstow Unified School District
(1996) PERB Order No. Ad-277.) Good cause is typically found when the late filing was caused
by circumstances beyond the party's control. (United Teachers
of
Los Angeles (Kestin) (2003)
PERB Order No. Ad-325.)
In the instant case, Nnachi claims he timely mailed his appeal, but the United States
Postal Service (USPS) inexplicably returned his envelope with the notation, "no such number."
Nnachi included the returned envelope in his motion. We find this envelope confirms the fact
that Nnachi timely mailed his appeal and that the envelope was, in fact, returned by the USPS.
We further find, and the City does not dispute, that the City was not prejudiced by the delay.
Accordingly, since the delay in filing was caused by circumstances beyond Nnachi's control, we
find Nnachi demonstrated good cause to excuse his late-filed appeal.
2

DISCUSSION
In his appeal, Nnachi alleges for the first time that he participated in a collection
of
salary
data from comparable counties that would be used to set the salaries
of
the City's juvenile hall
supervisors. According to Nnachi, the salary data would have resulted in significant raises for
the supervisors. Nnachi claims he was demoted because
of
his participation in the data
collection process.
PERB Regulation 32635(b) provides, "Unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." 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.)
In the instant case, the Board agent issued a warning letter on April 13, 2010, informing
Nnachi, among other things, that the charge did not state a prima facie case
of
retaliation.
Nnachi fiied an amended charge on April 21, 2010. The Board agent found the amended charge
also failed to state a prima facie case ofretaliation. Accordingly, the Board agent dismissed
Nnachi's amended charge on June 23, 2010. Nnachi timely appealed the dismissal. The appeal,
however, does not provide a reason why his participation in the salary data collection process
could not have been alleged in either his original charge or his amended charge. Thus, we do not
find good cause to consider these new allegations and evidence on appeal.
ORDER
The unfair practice charge in Case No. SF-CE-657-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
3

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622- I 021
Fax: (510) 622-1027
June 23, 2010
Oluchi Nnachi
784 Alcatraz Avenue
Oakland, CA 94609
Re: 	Oluchi Nnachi v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-657-M
DISMISSAL LETTER
Dear Mr. Nnachi:
( 	ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 26, 2009. Oluchi Nnachi (Nnachi or Charging Party) alleges
that the City and County of San Francisco (City or Respondent) violated the Meyers-Milias-
Brown Act (MMBA or Act) 1 by demoting him from a supervisory position into a lower
classification.
Charging Party was informed in the attached Warning Letter dated April 13, 2010, that the
above-referenced charge did not state a prima facie case. Charging P
1
arty was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge should be amended. 	Charging Party was further advised
that, unless the charge was amended to state a prima facie case or withdrawn prior to April 23,
2010, the charge would be dismissed.
On April 21, 2010, Charging Party filed an amended charge. As discussed below, the amended
charge does not cure the deficiencies identified in the Warning Letter. Therefore, the charge is
hereby dismissed based on the facts and reasons set forth below and in the April 13, 2010,
Warning Letter.
Summary of Allegations
The amended charge alleges as follows.
In June 2008, the City had an agreement with Nnachi's exclusive representative, Teamsters
Local 856, to do a wage survey. Before 	study was done, the City demoted certain
employees, including Charging Party, from the classification of Supervising Counselor.
According to information previously submitted, the demotions were the result of the City's
1 The 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. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

layoff process. Nnachi alleges that the City "protected" some employees from demotion and
that Mr. Siffermann (elsewhere identified as the chief probation officer) does not like
union
members he cannot control. Nnachi alleges that he was demoted without regard to his
seniority rights. Following the demotions, the City spent
over$
1.5 million to hire new
employees. Nnachi believes that the demotions were due to the push to conduct the wage
survey.
SF-CE-657-M
June 23, 2010
Page 2
Nnachi alleges that he "began the grievance process in June 2008, with the Department
of
Human Resources." The Department then approved the demotions because they were
not
objective. Nnachi filed an appeal with the Civil Service Commission, which is still pending.
Discussion
As explained in the Warning Letter, unfair practice charges under the MMBA are subject to a
six-month limitations period. (Coachella Valley Mosquito and Vector Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.) This charge was filed on May
26, 2009. Therefore, events occurring prior to November 26, 2008, are outside
of
the
limitations period and untimely. Pursuant to the equitable tolling doctrine, the statute
of
limitations under the MMBA is tolled (i.e., suspended) when the parties use a bilaterally
agreed-upon dispute resolution procedure to resolve the same dispute that is the subject
of
the
unfair practice charge, where such tolling does not frustrate the purposes
of
the MMBA.
(Solano County Fair Association (2009) PERB Decision No. 2035-M.)
Nnachi alleges that he filed a "grievance" in June 2008. He does not allege any facts to show
that the grievance was filed pursuant to a "bilaterally agreed-upon dispute resolution
procedure." Typically, a bilaterally agreed-upon dispute resolution procedure is a grievance
and arbitration procedure provided for in a Memorandum
of
Understanding (MOU) or
Collective Bargaining Agreement (CBA) between an employer and an exclusive
representative. Nnachi does not refer to an MOU or CBA nor does he explain in what context
or with whom the grievance was filed. Nnachi alleges that the grievance was denied on an
unspecified date by the Dep,artment
of
Human Resources and that the matter
Yvas
appealed to
the Civil Service Commission. He does not allege any facts to establish that this procedure or
the appeal to the Civil Service Commission was the result
of
a bilaterally agreed-upon dispute
resolution procedure. Therefore, there is no basis under which PERB can apply the equitable
tolling doctrine to extend the limitations period under the MMBA.
The City's allegedly unlawful demotion
of
employees, including Nnachi, occurred in June
2008, more than
:Six
months prior to the filing
of
the charge on May 26, 2009. Therefore, the
charge is not timely filed and Nnachi has failed to allege facts sufficient to constitute a prima
facie case.2
Even assuming, arguendo, that the allegations were timely filed within the limitations
period, and as also discussed in the earlier Warning Letter, the amended charge does not allege
with any specificity that Nnachi engaged in protected activity, within the meaning of the
MMBA, for purposes of determining whether his employer unlawfully retaliated against him

SF-CE-657-M
June 23, 2010
Page 3
for his protected activity in violation of Government Code section 3506 and PERB Regulation
32603(a).
Right to Appeal
Pursuant to PERB Regulations, Charging Party 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. (Cal. Code Regs, tit.
8,
§ 32635, subd. (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.
(Cal. Code Regs, tit.
8, §§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (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
PERB 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. (Cal. Code
Regs, tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8, §§
32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
the
	If
you file a timely appeal of the refusal
to
issue a complaint, any other party may file with
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Cal. Code Regs, tit.
8,
§ 32635, subd. (b).)
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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)

SF-CE-657-M
June 23, 2010
Page 4
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. (Cal. Code Regs, tit.
8,
§ 32132.)
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
aura Davis
Regional Attorney
Attachment
cc: Gina Roccanova, Deputy City Attorney

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (5 l 0) 622-1021
Fax: (510) 622-1027
April 13, 2010
Oluchi Nnachi
784 Alcatraz A venue
Oakland, CA 94609
Re: 	Oluchi Nnachi v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-657-M
WARNING LETTER
Dear Mr. Nnachi:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 26, 2009. Oluchi Nnachi (Nnachi or Charging Party) alleges
that the City and County of San Francisco (City or Respondent) violated the Meyers-Milias-
Brown Act (MMBA or Act) 1 by demoting him from a supervisory position into a lower
classification.
Summary of Facts as Alleged
In addition to the charge filed on May 26, 2009, Nnachi submitted further statements of his
charge on July 7, 2009 and on August 11, 2009. These further statements were submitted in
response to position statements filed by the City and appear to be intended to amend his
charge. Accordingly, the three documents will be treated as one charge2 and the pertinent facts
are summarized below.
Nnachi has been employed bythe City's Juvenile Probation Department for approximately 23
years. During this time, he has experienced discrimination on the basis of his race, ethnicity
and nationai origin. For six years he was classified as a Senior Counselor 8322 and for ten
years he was classified as a Supervising Counselor 8324. On an unspecified date, the City
demoted him, apparently from the Supervising Counselor 8324 position to the classification of
Counselor 8320. 	Nnachi alleges that the demotion was made without due process and in
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 Where a later charge incorporates pleadings of original charge, all will be considered
one pleading. (Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision
No. 332.)
3 It does not appear from the facts alleged that Nnachi is excluded from PERB's
jurisdiction as a peace officer pursuant to MMBA section 3511.

SF-CE-657-M
April 13, 2010
Page 2
violation
of
various State and Federal laws.4 He further alleges that he was treated differently
on the basis
of
his race, and that Caucasian employees were not similarly demoted.
At the time Nnachi was demoted, eight other employees classified
as
Supervising Counselors
were serving probationary periods in those positions but were not demoted. The City, through
Mr. W.B. Sifferman (Sifferman), the chief probation officer, "protected" those eight employees
from demotion, and also protected sixteen other employees from demotion from other
classifications. This matter was taken to the City's Civil Service Commission which has not
yet made a final decision. Nnachi contends that the City's Civil Service Rule
121
requires that
reductions in force be made by seniority and not by class, and that the rule was not followed.
He further contends that the City violated its Civil Service Rule 109.11.1
The City alleges that Nnachi's demotion was the result
of
a layoff and that due to a budget
crisis the City was implementing layoffs City-wide. The City makes the uncontradicted
allegation that it notified Nnachi on June 2, 2008 that he would be laid off from the
Supervising Counselor 8324 classification, effective August 22, 2008. The City alleges that it
followed Civil Service rules pertaining to layoffs and, because Nnachi had permanent rights as
a Counselor 8320, he was placed in that position.
Nnachi argues that the City's budget shortfall does not justify demoting him. He gives several
examples where the City has replaced incumbent employees at higher salaries, has hired new
employees at high salaries, and has show favoritism in awarding "Status Grants" to certain
employees.
5
Nnachi alleges that the City violated PERB regulations 	32603(a), (e) and (f). Nnachi requests
relief pursuant to California Government Code section 12926 [defining unlawful practices
under the California Fair Employment and Housing Act].)
Legal Analysis
Nnachi alleges violations of both the Dills Act (the Ralph C. Dills Act is codified at
Government Code section 3512 et seq.) and the MMBA. Because Nnachi is an employee of
the City, which is an employer covered by the MMBA, his charge will be analyzed under the
MMBA and not the Dills Act. A Board Agent may, upon review of an unfair practice charge,
determine the grounds under which the charge should be analyzed. (Los Banos Unified School
District (2007) PERB Decision No. 1935.)
4 In particular, Amendment XIV to the U.S. Constitution; Title VII (i.e., 42 U.S.C.
§§2000 et seq.) and California Proposition 209.
5 PERB regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CE-657-M
April 13, 2010
Page 3
PERB Regulation 32615(a)(5) requires that an unfair practice charge include a "clear and
concise statement
of
the facts and conduct alleged
to
constitute an unfair practice." The
charging party's burden includes alleging the "who, what, when, where and how"
of
an unfair
practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision
No. I 071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)
Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak
Unified School District (1991) PERB Decision No. 873.)
1.
	Statute
of
Limitations
The charging party's burden includes alleging facts showing that the unfair practice charge was
timely filed; i.e., that the alleged unfair practice occurred no more than six months prior to the
filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision No. 1929;
City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) 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.) The
limitations period begins to run once the charging party know?, or should have known,
of
the
conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that the six months statute
of
limitations period provided by the Educational Employment
Relations Act "is to be computed by excluding the day the alleged misconduct took place and
including the last day." Thus, where the school employer adopted a proposal on June 20, 1984,
the Board calculated that "the six-month period started on June 21, 1984, the day after the
school board adopted the proposal, and ended at the close
of
business on December 20, 1984."
(Ibid.; see also California State University, Fullerton (1986) PERB Decision No. 605-H.) The
same method
of
calculation should be applied to the statute
of
limitations under the MMBA. 6
This charge was filed on May 26, 2009. Therefore, events occurring prior to November 26,
2008, are outside
of
the limitations period and untimely. Nnachi's charge alleges that the City
committed an unfair practice when it demoted him from the Supervising Counselor 8324
position to the classification
of
Counselor 8320. The City makes the uncontradicted allegation
that it notified Nnachi
of
this demotion on June 2, 2008 and that the demotion would be
effective on August 22, 2008.7 Nnachi knew or should have
k-
..
nown
of
the demotion no later
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 (197 4) 12 Cal.3d 608
.)
7 A Board agent is not required to ignore the facts provided by Respondent and to only
consider the facts provided by Charging Party. (Service Employees International Union #790
(Adza) (2004) PERB Decision No. 1632-M.)

SF-CE-657-M
April 13, 2010
Page 4
than August 22, 2008, and possibly as early
as
June 2, 2008. Nnachi did not file his charge
until May 2009. Therefore, the charge is untimely filed.
Nnachi contends that the time to file his charge should be tolled while he pursued the matter
before the City's Civil Service Commission. The statute oflimitations under the MMBA is
tolled when the parties use a bilaterally agreed-upon dispute resolution procedure to resolve the
same dispute that is the subject
of
the unfair practice charge, where such tolling does not
frustrate the purposes
of
the MMBA. (Solano County Fair Association (2009) PERB Decision
No. 2035-M.) However, Nnachi does not provide any facts concerning when he took the
matter to the City's Civil Service Commission or what transpired at those proceedings.
Further, it is unlikely that the City's Civil Service Commission would be considered a
"bilaterally agreed-up dispute resolution procedure." (See, e.g., City
of
Alhambra (2009)
PERB Decision No. 2036-M [equitable tolling does not apply to non-contractual disciplinary
proceedings].)
Accordingly, Nnachi has not established that the charge is timely filed within the limitations
period.
2.
	P ERB 's Jurisdiction
In should be noted that the MMBA does not extend a remedy against all acts
of
perceived
unfairness or discrimination against public employees. Rather, PERB' s jurisdiction is limited
to resolving claims
of
unfair practices, as defined, which violate the Acts enforced by PERB.
(See, e.g., Los Angeles Unified School District (1984) PERB Decision No. 448.)
Absent an independent violation
of
the MMBA, PERB does not have jurisdiction over other
California Government Code provisions, Federal law, or the U.S. Constitution. (See, e.g.,
Ventura County Community College District (1996) PERB Decision No. 1167; California
State University, Hayward (1991) PERB Decision No. 869-H.) PERB does not have
jurisdiction over claims
of
racial discrimination. (Berkeley Federation
of
Teachers,
T ,.,.,,J
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he was discriminated against on the basis
of
his race, ethnic background, or national origin,
and that Caucasian employees
of
the City received preferential treatment. PERB lacks
jurisdiction over these claims.
3.
	Retaliation for Protected Activity
To demonstrate that an employer discriminated or retaliated against an employee in violation
of Government Code section 3506 and PERB Regulation 32603(a), the charging party must
show that: ( 1) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise of those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because of the exercise of those rights. 	(Novato Unified
School District (1982) PERB Decision No. 210 (Novato); Campbell Municipal Employees
Assn.
v.
City
of
Campbell (1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers
Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) In determining

SF-CE-657-M
April 13, 2010
Page 5
whether evidence
of
adverse action is established, the Board uses an objective test and will not
rely upon the subjective reactions
of
the employee. (Palo Verde Unified School District (1988)
PERB Decision No. 689.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact
on
the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra,
131
Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3)
the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra,
55 Cal.App.3d 553); (4) the employer's cursory investigation
of
the employee's misconduct
(City
of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
at the time it took action ( Oakland Unified School District (2003) PERB Decision No. 1529) or
the offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
The demotion
of
an employee may be viewed as adverse action within the meaning
of the
MMBA. (Trustees
of
the California State University (2009) PERB Decision No. 2038-H.)
However, Nnachi does not allege any facts to establish that he engaged in protected activity or
that he was demoted because
of
any such protected activity. Rather, Nnachi contends that he
was demoted on the basis
of
his race, ethnic background, or national origin. 8 He further
He makes a single allegation that "CCSF did not respect my seniority because
of
my
past complaints," but he provides no explanation of this conclusory statement nor does he
specify what those past complaints were or when they were made. 	"

SF-CE-657-M
April 13, 2010
Page 6
contends that the City wasted money or spent money in other areas and therefore was not
experiencing a budget crises sufficient to justify demoting him. These allegations do not
establish that the City retaliated against Nnachi because of his protected activity. Accordingly,
Nnachi fails to state a prima facie case of a violation under the MMBA.
d. 	Failure to Participate in Impasse Proceedings
Nnachi alleges a violation of PERB Regulation 32603(e), which states that it is an unfair
practice for a local agency to fail to exercise good faith while participating in impasse
proceedings. Nnachi does not allege any facts to suggest that the City was engaged in impasse
proceedings. 9 Moreover, Nnachi lacks standing with respect to this claim. (County of
Riverside (2009) PERB Decision No. 2065-M [individual lacks standing to allege that
employer failed to meet and confer].)
e. 	Adoption or Enforcement or Local Rule
Nnaci also alleges a violation of PERB Regulation 32603(£), which states that it is an unfair
practice for a local agency to adopt or enforce a local rule that is not in conformance with the
MMBA. Nnachi does not identify any local rule which he alleges is not in conformance with
the MMBA. Therefore he does not establish a prima facie case on this basis.
For these reasons the charge, as presently written, does not state a prima facie case. 10 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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
He makes a vague reference to the City's agreement with his Union, Teamsters Local
856, to conduct a classification compensation study which, he states, was "botched."
10 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid)

SF-CE-657-M
April 13, 2010
Page 7
PERB. If an amended charge or withdrawal is not filed on or before April 23, 2010,11 PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
L ura Davis
Regional Attorney
LD
1 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)