City of Long Beach (PERB 1977M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COSME MONTOYA,
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COSME MONTOYA,
Charging Party,	Charging Party,
V .	V.
CITY OF LONG BEACH,	CITY OF LONG BEACH,
Respondent.
Case No. LA-CE-432-M
PERB Decision No. 	1977-M
September 16, 2008
Case No. LA-CE-432-M
Appearances: 	Cosme Montoya, on his own behalf; 	Christina L. Checel, Deputy City
Attorney, for City of Long Beach.
Before McKeag, Rystrom and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case comes before the Public Employment
Relations Board (PERB or Board) on appeal by Cosme Montoya (Montoya) of a Board agent's
dismissal of his unfair practice charge. 	The charge alleged that the City of Long Beach (City)
violated the Meyers-Milias-Brown Act (MMBA)1 by: 	(1) failing to pay Montoya mileage
reimbursement as provided in the memorandum of understanding (MOU) between the City and
Montoya's union, the International Association of Machinists and Aerospace Workers (IAM);
and (2) retaliating against Montoya for filing a grievance over the mileage reimbursement issue
and a discrimination complaint with the Equal Employment Opportunity Commission (EEOC).
The Board agent dismissed the charge for failure to state a prima facie case of either unilateral
change or retaliation.
1MMBA is codified at Government Code section 3500 et seq.
Respondent.
Appearances
b
PERB Decision No. 1977-M
September 16, 2008
Attorney, for C

The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the City's position statement, the Board
agent's
warning and dismissal letters, Montoya's appeal and supplemental filings, and the
City's
response thereto. Based on this review, the Board affirms the dismissal
of
the charge for the
reasons discussed below.
BACKGROUND
Montoya's position as a Business Systems Specialist for the City requires him to use
his personal vehicle to travel to various
job
sites within a single day. Article Two, section
VI(D)
of
the MOU between the City and IAM provides that employees who use their personal
vehicle to travel between
job
sites are to be reimbursed at a flat monthly rate plus mileage.
The City had a past practice
of
only reimbursing mileage at the flat rate plus mileage when an
employee traveled 300 miles or more in a month. 	The City reimbursed Montoya for actual
miles traveled but did not pay him the flat monthly rate.
On January 3, 2007, Montoya filed a grievance with the City claiming that he was
entitled to reimbursement at the flat monthly rate plus mileage. After he stopped receiving
regular updates on the progress
of
his grievance, Montoya called the City's human resources
department and was told that it was unaware
of
the grievance.2 On May 4, IAM informed
Montoya that the grievance paperwork had been lost.
On July 30, 2007, IAM re-filed Montoya's mileage reimbursement grievance with the
City. The grievance was heard at three levels by various human resources representatives. 	On
December 20, 2007, the City conducted a hearing on Montoya's grievance before Assistant
City Manager, Suzanne Frick (Frick). Frick ruled that the City would pay Montoya the flat
rate plus mileage whenever he traveled at least 270 miles in a particular month. IAM then
It is unclear from the charge whether IAM or the City was updating Montoya on the
progress of his grievance.
2
is unclear from the charge whether IAM or the City was updating Montoya on the
reasons discussed below.
e."
It
progress of his grievance.

requested arbitration
of
the grievance. On May 21, 2008, the arbitrator issued an award
dismissing Montoya's grievance because
of
the City's past practice
of
only paying the flat
monthly rate when the employee traveled 300 miles or more in a given month.
Meanwhile,	Meanwhile, sometime prior to July 2007, Montoya filed another charge with the City	sometime prior to July 2007, Montoya filed another charge with the City
claiming that the City was discriminating against him by hiring less	claiming that the City was discriminating against him by hiring less qualified candidates to fill	qualified candidates to fill
positions for which he had applied.
requested arbitration of the grievance. On May 21, 2008, the arbitrator issued an award
positions for which he had applied.
On July 12, 2007, Montoya was assigned to provide system support at fire department
headquarters on a part-time basis. Montoya considered this to be a demotion. After two
months, the fire department ended his assignment there.
On September 14, 2007, Montoya filed a complaint with the EEOC alleging
discrimination on the same grounds as in his earlier charge with the City. 	Sometime in
October, the EEOC notified the City
of
Montoya's September
14
discrimination complaint.
On July 12, 2007, Montoya was assigned to provide system support at fire department
On September 14, 2007, Montoya filed a complaint with the EEOC alleging
discrimination on the same grounds as in his earlier charge with the City. Sometime in
October, the EEOC notified the City of Montoya's September 14 discrimination complaint.
On November 7, 2007, Montoya's Manager, Jerry Wada (Wada), issued Montoya a
counseling memorandum addressing his failure to "provide quality customer service" during
his assignment to the fire department. 	The memorandum stated: "Failure to improve in this
area may result in disciplinary actions." Wada told Montoya that the memorandum would be
placed in Montoya's personnel file.
Unfair Practice Charge and Dismissal
On November 7, 2007, Montoya's Manager, Jerry Wada (Wada), issued Montoya a
Unfair Practice Charge and Dismissal
On January 24, 2008, Montoya filed his unfair practice charge. The charge alleged that
the City violated MMBA by refusing to reimburse him for mileage pursuant to the MOU. 	On
April 3, 2008, Montoya amended his charge to add an allegation that the City retaliated against
him for filing grievances and discrimination claims by demoting him and issuing him a
counseling memorandum. The amended charge also acknowledged that "PERB cannot enforce
the MOU" but alleged that the City retaliated against Montoya by using a policy not contained
in the MOU to deny him mileage reimbursement.
3
On January 24, 2008, Montoya filed his unfair practice charge. The charge alleged that
months, the fire department ended his assignment there.
3
dismissing Montoya's grievance because of the City's past practice of only paying the flat
monthly rate when the employee traveled 300 miles or more in a given month.
headquarters on a part-time basis. Montoya considered this to be a demotion. After two
counseling memorandum addressing his failure to "provide quality customer service" during
his assignment to the fire department. The memorandum stated: "Failure to improve in this
area may result in disciplinary actions." Wada told Montoya that the memorandum would be
placed in Montoya's personnel file.
the City violated MMBA by refusing to reimburse him for mileage pursuant to the MOU. On
April 3, 2008, Montoya amended his charge to add an allegation that the City retaliated against
him for filing grievances and discrimination claims by demoting him and issuing him a
counseling memorandum. The amended charge also acknowledged that "PERB cannot enforce
the MOU" but alleged that the City retaliated against Montoya by using a policy not contained
in the MOU to deny him mileage reimbursement.

The Board agent dismissed the entire charge on April 17, 2008. The Board agent
dismissed the unilateral change allegation because the charge did not allege facts establishing
that the City had an obligation to meet and confer with Montoya or that the alleged MOU
violation had
"a
generalized effect or continuing impact on the terms and conditions
of
employment."
4
The Board agent dismissed the entire charge on April 17, 2008. The Board agent
Turning to the retaliation allegation, the Board agent found that Montoya engaged in
MMBA-protected activity by filing the mileage reimbursement grievances but not by filing the
EEOC complaint. Regarding adverse action, the Board agent noted that any alleged
misconduct by the City prior to July 24, 2007, could not support a finding
of
an unfair practice
due to the six-month statute
of
limitations. As a result, the only timely adverse action alleged
was the November 7, 2007 counseling memorandum. The Board agent found the charge failed
to establish a nexus between Montoya's protected activity and the counseling memorandum
because: (1) too much time elapsed between the protected activity and the counseling
memorandum; and (2) the alleged facts did not demonstrate the City deviated from any
established practice or treated Montoya differently than similarly situated employees.
Montoya's Appeal and Supplemental Filings	Montoya's Appeal and Supplemental Filings
On May 12, 2008, Montoya filed a timely appeal
of
the dismissal. The appeal sets forth
a timeline
of
Montoya's grievance and discrimination complaint filings, his alleged demotion
and the counseling memorandum. Montoya argues the timing of events establishes that the
City retaliated against him. He also asserts the charge was timely filed within three and one
half months after the November 7, 2007 counseling memorandum. As for the unilateral
change allegation, the appeal states only that the "the mileage arbitration is scheduled for
May 20th, 2008." Twelve new exhibits are attached to the appeal. Montoya did not file a proof
of service along with his appeal. However, he did provide one after the PERB Appeals
Assistant notified him that proof of service was required as part of the filing.
Turning to the retaliation allegation, the Board agent found that Montoya engaged in
On May 12, 2008, Montoya filed a timely appeal of the dismissal. The appeal sets forth
a timeline of Montoya's grievance and discrimination complaint filings, his alleged demotion
and the counseling memorandum. Montoya argues the timing of events establishes that the
City retaliated against him. He also asserts the charge was timely filed within three and one-
half months after the November 7, 2007 counseling memorandum. As for the unilateral
change allegation, the appeal states only that the "the mileage arbitration is scheduled for
May 20", 2008." Twelve new exhibits are attached to the appeal. Montoya did not file a proof
of service along with his appeal. However, he did provide one after the PERB Appeals
Assistant notified him that proof of service was required as part of the filing.
dismissed the unilateral change allegation because the charge did not allege facts establishing
that the City had an obligation to meet and confer with Montoya or that the alleged MOU
violation had "a generalized effect or continuing impact on the terms and conditions of
employment."
MMBA-protected activity by filing the mileage reimbursement grievances but not by filing the
EEOC complaint. Regarding adverse action, the Board agent noted that any alleged
misconduct by the City prior to July 24, 2007, could not support a finding of an unfair practice
due to the six-month statute of limitations. As a result, the only timely adverse action alleged
was the November 7, 2007 counseling memorandum. The Board agent found the charge failed
to establish a nexus between Montoya's protected activity and the counseling memorandum
because: (1) too much time elapsed between the protected activity and the counseling
memorandum; and (2) the alleged facts did not demonstrate the City deviated from any
established practice or treated Montoya differently than similarly situated employees.

The Appeals Assistant placed this case on the Board's docket on June 23, 2008. 	On
June 26, the City contacted the Appeals Assistant claiming it had not been served with the
appeal. 	The Appeals Assistant faxed the appeal to the City that same day. Also on June 26,
the City requested by letter that Montoya's appeal be dismissed because
of
improper service
and that the City be given 20 days from June 26 to file a response. The City faxed and mailed
its letter to the Los Angeles Regional Office, but it was not received at the Headquarters Office
until July 30, 2008.
On July 10, 2008, Montoya filed a supplement to his appeal. The supplement contains
a May 21, 2008 arbitration award in Montoya's mileage reimbursement grievance and a
May 30 letter to Montoya from 1AM stating that the arbitration award is "final and binding"
and therefore 1AM has "no other avenues to pursue and shall consider this case closed." The
supplement also contains documents previously provided with the amended charge. A
proof
of
service did not accompany the supplemental filing. 	After prompting by the Appeals Assistant,
Montoya provided a proof
of
service.
The Appeals Assistant placed this case on the Board's docket on June 23, 2008. On
On July 10, 2008, Montoya filed a supplement to his appeal. The supplement contains
a May 21, 2008 arbitration award in Montoya's mileage reimbursement grievance and a
May 30 letter to Montoya from IAM stating that the arbitration award is "final and binding"
and therefore IAM has "no other avenues to pursue and shall consider this case closed." The
supplement also contains documents previously provided with the amended charge. A proof of
service did not accompany the supplemental filing. After prompting by the Appeals Assistant,
On July 30, 2008, the City phoned the Appeals Assistant and stated that it had not been
served with the supplemental filing. 	The Appeals Assistant faxed the supplemental filing to
the City on August
1.
That same day, the City again asked by letter that Montoya's appeal be
dismissed for improper service or, in the alternative, that PERB grant the City 20 days from
August I to respond. 	On August 13, the Appeals Assistant informed the parties by letter that
the Board had granted the City's request for an extension
of
time to file a response, which
would be due 20 days from the date the letter was served. The City filed its response on
August 21, 2008.
On September 8, 2008, Montoya filed an additional 48 pages of documents with the
Board, accompanied by a proof of service. After confirming by phone that the City had not
received the filing, the Appeals Assistant faxed a copy of the third filing to the City. The filing
On July 30, 2008, the City phoned the Appeals Assistant and stated that it had not been
On September 8, 2008, Montoya filed an additional 48 pages of documents with the
Board, accompanied by a proof of service. After confirming by phone that the City had not
received the filing, the Appeals Assistant faxed a copy of the third filing to the City. The filing
5
Montoya provided a proof of service.
5
June 26, the City contacted the Appeals Assistant claiming it had not been served with the
appeal. The Appeals Assistant faxed the appeal to the City that same day. Also on June 26,
the City requested by letter that Montoya's appeal be dismissed because of improper service
and that the City be given 20 days from June 26 to file a response. The City faxed and mailed
its letter to the Los Angeles Regional Office, but it was not received at the Headquarters Office
until July 30, 2008.
served with the supplemental filing. The Appeals Assistant faxed the supplemental filing to
the City on August 1. That same day, the City again asked by letter that Montoya's appeal be
dismissed for improper service or, in the alternative, that PERB grant the City 20 days from
August 1 to respond. On August 13, the Appeals Assistant informed the parties by letter that
the Board had granted the City's request for an extension of time to file a response, which
would be due 20 days from the date the letter was served. The City filed its response on
August 21, 2008.

consists
of
e-mails and other printouts from various dates in August and September 2007. 	The
filing also alleges for the first time that on June 11, 2008, Wada gave Montoya a performance
evaluation covering the period
of
May 2005 to May 2008 which rated him as "meets
expectations" but also stated that Montoya failed to meet the fire department's expectations.
DISCUSSION
consists of e-mails and other printouts from various dates in August and September 2007. The
DISCUSSION
Service
of
Appeal and Supplemental Filings	Service of Appeal and Supplemental Filings
Though not raised in its response to the appeal, the City has twice urged the Board by
letter to dismiss Montoya's appeal on the ground that it fails to comply with the service
requirements in PERB Regulation 32140.3
Though not raised in its response to the appeal, the City has twice urged the Board by
Specifically, the City claims that Montoya never
served it with the appeal or the July 10, 2008 supplemental filing. 4
Specifically, the City claims that Montoya never
PERB Regulation 32140 states in full:
(a)
PERB Regulation 32140 states in full:
(a) 	All documents referred to in these regulations requiring 'service,'
except subpoenas, shall be considered 'served' by the Board or a
party when personally delivered, deposited in the mail or with a
delivery service properly addressed, or when sent by facsimile
transmission in accordance with the requirements
of
Sections
32090 and 32135(d). All documents required to be served shall
include a
'proof
of
service' declaration signed under penalty
of
perjury which contains the following information: (1) The name
of
the declarant; (2) the county and state in which the declarant is
employed or resides; (3) a statement that the declarant is over the
age
of
18 and not a party to the case; (4) the address
of
the
declarant; (5) a description
of
the documents served; (6) the
method
of
service and a statement that any postage or other costs
were prepaid; (7) the name( s ), address(es) and,
if
applicable, fax
number(s) used for service on the party(ies); and (8) the date
of
service.
(b)
All documents referred to in these regulations requiring 'service,'
( b ) 	Whenever 'service' is required by these regulations, service shall
be on all parties to the proceeding and shall be concurrent with
the filing in question.
3
Whenever 'service' is required by these regulations, service shall
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
4
ERB regulations are codified at California Code of Regulations, title 8, section 31001
The City also told the Appeals Assistant that it was not served with a copy of the
September 8, 2008 filing but has not asked the Board to dismiss the appeal on that ground.
6
The City also told the Appeals Assistant that it was not served with a copy of the
.'
P
"
filing also alleges for the first time that on June 11, 2008, Wada gave Montoya a performance
evaluation covering the period of May 2005 to May 2008 which rated him as "meets
expectations" but also stated that Montoya failed to meet the fire department's expectations.
letter to dismiss Montoya's appeal on the ground that it fails to comply with the service
requirements in PERB Regulation 32140
served it with the appeal or the July 10, 2008 supplemental filing."
except subpoenas, shall be considered 'served' by the Board or a
party when personally delivered, deposited in the mail or with a
delivery service properly addressed, or when sent by facsimile
transmission in accordance with the requirements of Sections
32090 and 32135(d). All documents required to be served shall
include a "proof of service' declaration signed under penalty of
perjury which contains the following information: (1) The name
of the declarant; (2) the county and state in which the declarant is
employed or resides; (3) a statement that the declarant is over the
age of 18 and not a party to the case; (4) the address of the
declarant; (5) a description of the documents served; (6) the
method of service and a statement that any postage or other costs
were prepaid; (7) the name(s), address(es) and, if applicable, fax
number(s) used for service on the party(ies); and (8) the date of
service.
be on all parties to the proceeding and shall be concurrent with
the filing in question.
et seq.
September 8, 2008 filing but has not asked the Board to dismiss the appeal on that ground.

The Board has excused a party's failure to comply with PERB Regulation 32140 when:
(
1)
the opposing party received actual notice
of
the filing; and (2) defective service did not
prejudice the opposing party. (Fontana Unified School District (2003) PERB Order
No. Ad-324.)
The record does not establish conclusively that the City had actual notice
of
Montoya's
appeal and July 10, 2008 supplemental filing before it received copies
of
the filings from
PERB. However, "[ d]ocuments accompanied by a valid proof
of
service, signed under penalty
of
perjury, are presumed to have been properly served. (Evidence Code sec. 641; Glasser v.
Glasser (1998) 64 Cal.App.4th 1004
[75
Cal.Rptr.2d 621] (Glasser).) The party claiming that
service was invalid bears the burden
of
rebutting the presumption
of
validity. (Glasser, pp. 1010-
1011.)" (United Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325 (UTLA).)
The Board has excused a party's failure to comply with PERB Regulation 32140 when:
The record does not establish conclusively that the City had actual notice of Montoya's
appeal and July 10, 2008 supplemental filing before it received copies of the filings from
PERB. However, "[djocuments accompanied by a valid proof of service, signed under penalty
of perjury, are presumed to have been properly served. (Evidence Code sec. 641; Glasser v.
Glasser (1998) 64 Cal.App.4th 1004 [75 Cal.Rptr.2d 621] (Glasser).) The party claiming that
service was invalid bears the burden of rebutting the presumption of validity. (Glasser, pp. 1010-
1011.)" (United Teachers of Los Angeles (Kestin) (2003) PERB Order No. Ad-325 (UTLA).)
Montoya provided PERB with a valid proof
of
service showing that he served his appeal
on the City by mail and facsimile on May 27, 2008. Similarly, he provided a valid proof
of
service showing service
of
the July 10, 2008 supplemental filing on the City by mail and
facsimile on July 28, 2008. Thus, Montoya
is
entitled to the presumption that he served both
filings on the City. (UTLA.) The City has provided no evidence to rebut the presumption other
than its unsupported assertion that it never received copies of the filings. Because the assertion
standing alone is insufficient to rebut the presumption, we must presume that Montoya served
the City with both filings. 	(See UTLA ["uncorroborated, unsworn" assertion that dismissal letter
was "lost in the mail" did not rebut presumption of service].) From this, we conclude that the
City had actual notice of the filings.
7
Montoya provided PERB with a valid proof of service showing that he served his appeal
Nonetheless, Montoya's service was still defective because both filings were served on
the City after they were served on the Board. "When considering the charging party's non
compliance with the Board's service requirements, we should read and apply PERB regulations
in light of their intended purpose, that is, to protect a respondent from stale claims or to prevent
Nonetheless, Montoya's service was still defective because both filings were served on
(1) the opposing party received actual notice of the filing; and (2) defective service did not
prejudice the opposing party. (Fontana Unified School District (2003) PERB Order
No. Ad-324.)
on the City by mail and facsimile on May 27, 2008. Similarly, he provided a valid proof of
service showing service of the July 10, 2008 supplemental filing on the City by mail and
facsimile on July 28, 2008. Thus, Montoya is entitled to the presumption that he served both
filings on the City. (UTLA.) The City has provided no evidence to rebut the presumption other
than its unsupported assertion that it never received copies of the filings. Because the assertion
standing alone is insufficient to rebut the presumption, we must presume that Montoya served
the City with both filings. (See UTLA ["uncorroborated, unsworn" assertion that dismissal letter
was "lost in the mail" did not rebut presumption of service].) From this, we conclude that the
City had actual notice of the filings.
the City after they were served on the Board. "When considering the charging party's non-
compliance with the Board's service requirements, we should read and apply PERB regulations
in light of their intended purpose, that is, to protect a respondent from stale claims or to prevent

prejudice because a respondent was unable to defend itself due to the late service." (San Diego
Community College District (1988) PERB Decision No. 662.) In State of California
(Department of Developmental Services) (1996) PERB Decision No. 1150-S, the Board excused
a party's failure to concurrently serve its appeal on the Board and the opposing party because it
found the late service did not impair the opposing party's ability to adequately defend itself.
Here, the Board granted the City's request for a 20-day extension to file its response to
Montoya's appeal and the City has responded to the appeal. 5
prejudice because a respondent was unable to defend itself due to the late service." (San Diego
Thus, though Montoya did not
concurrently serve the City, his late service of both filings resulted in no prejudice to the City.6
hus, though Montoya did not
Accordingly, we excuse Montoya's failure to comply with PERB Regulation 32140.Accordingly, we excuse Montoya's failure to comply with PERB Regulation 32140." 7
New Allegations and Supporting Evidence on Appeal
Montoya's appeal and supplemental filings each contain allegations and supporting
evidence not presented to the Board agent. "Unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b).) 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.)
New Allegations and Supporting Evidence on Appeal
Montoya's appeal and supplemental filings each contain allegations and supporting
evidence not presented to the Board agent. "Unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b).) 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.)
5In granting the extension, the Board exercised its discretion under PERB
Regulation 32136 to excuse a late filing for good cause. Because good cause is determined on
a case-by-case basis, the Board's action should not be interpreted as establishing an entitlement
to an extension in all cases where an appeal is served late on the opposing party.
6
granting the extension, the Board exercised its discretion under PERB
The City did not request an opportunity to respond to the September 8, 2008 filing.
Nonetheless, in light of our finding below that Montoya has not established good cause for the
Board to consider the contents of that filing, we find the City was not prejudiced by the
September 8 filing.
7
he City did not request an opportunity to respond to the September 8, 2008 filing.
8
" T
In
T
T
8
The City also contends that Montoya's May 27, 2008 proof of service was defective
because it failed to include the address and facsimile number used to serve the City. This is
precisely the type of technical violation the Board has excused in the absence of prejudice to
the opposing party. (See e.g., California School Employees Association (Kotch) (1992) PERB
Decision No. 953 [excusing proof of service signed by charging party because defect caused
no prejudice].)
he City also contends that Montoya's May 27, 2008 proof of service was defective
Community College District (1988) PERB Decision No. 662.) In State of California
(Department of Developmental Services) (1996) PERB Decision No. 1150-S, the Board excused
a party's failure to concurrently serve its appeal on the Board and the opposing party because it
found the late service did not impair the opposing party's ability to adequately defend itself.
Here, the Board granted the City's request for a 20-day extension to file its response to
Montoya's appeal and the City has responded to the appeal.
concurrently serve the City, his late service of both filings resulted in no prejudice to the City.
Regulation 32136 to excuse a late filing for good cause. Because good cause is determined on
a case-by-case basis, the Board's action should not be interpreted as establishing an entitlement
to an extension in all cases where an appeal is served late on the opposing party.
Nonetheless, in light of our finding below that Montoya has not established good cause for the
Board to consider the contents of that filing, we find the City was not prejudiced by the
September 8 filing
because it failed to include the address and facsimile number used to serve the City. This is
precisely the type of technical violation the Board has excused in the absence of prejudice to
the opposing party. (See e.g., California School Employees Association (Kotch) (1992) PERB
Decision No. 953 [excusing proof of service signed by charging party because defect caused
no prejudice].)

Attached to Montoya's appeal are 12 new exhibits not presented to the Board agent.
The date on each exhibit indicates that it existed prior to the dismissal of the charge. The
record fails to show that Montoya could not have obtained the documents before the charge
was dismissed. Consequently, there is no good cause to consider these exhibits on appeal.
Montoya's July 10, 2008 supplemental filing consists of a May 21, 2008 arbitration
award, a May 30, 2008 letter to him from IAM regarding the award, and several other
documents that were part of the amended charge. By their dates, it is clear that the arbitration
award and letter from IAM did not exist at the time the charge was dismissed. Thus, Montoya
has established good cause for the Board to consider this evidence on appeal. However, the
Board will only consider these two documents to the extent they are relevant to the allegations
in the amended charge. Moreover, the remaining documents in this filing are already part of
the record on appeal and thus may be considered without a showing of good cause.
Attached to Montoya's appeal are 12 new exhibits not presented to the Board agent.
Montoya's July 10, 2008 supplemental filing consists of a May 21, 2008 arbitration
award, a May 30, 2008 letter to him from IAM regarding the award, and several other
documents that were part of the amended charge. By their dates, it is clear that the arbitration
award and letter from IAM did not exist at the time the charge was dismissed. Thus, Montoya
has established good cause for the Board to consider this evidence on appeal. However, the
Board will only consider these two documents to the extent they are relevant to the allegations
in the amended charge. Moreover, the remaining documents in this filing are already part of
the record on appeal and thus may be considered without a showing of good cause.
The September 8, 2008 supplemental filing contains 48 pages of documents from
various dates in August and September 2007. Montoya's name appears on most of them as a
sender or recipient. 	Since these documents also existed prior to the dismissal of the charge and
Montoya was aware of them before that time, there is no good cause to consider them on
appeal.
In addition to new supporting evidence, each of Montoya's supplemental filings
includes an allegation raised for the first time on appeal. The July 10, 2008 filing alleges that
in the May 21, 2008 arbitration award, the arbitrator improperly added terms to the MOU by
considering the City's past practice regarding mileage reimbursement. The September 8, 2008
filing alleges that on June 11, 2008, Montoya's Manager, Wada, issued him a performance
evaluation for the period May 2005 through May 2008 that rated him as "meets expectations"
but also stated that Montoya failed to meet the fire department's expectations.
The September 8, 2008 supplemental filing contains 48 pages of documents from
In addition to new supporting evidence, each of Montoya's supplemental filings
includes an allegation raised for the first time on appeal. The July 10, 2008 filing alleges that
in the May 21, 2008 arbitration award, the arbitrator improperly added terms to the MOU by
considering the City's past practice regarding mileage reimbursement. The September 8, 2008
filing alleges that on June 11, 2008, Montoya's Manager, Wada, issued him a performance
evaluation for the period May 2005 through May 2008 that rated him as "meets expectations"
but also stated that Montoya failed to meet the fire department's expectations.
9	9
The date on each exhibit indicates that it existed prior to the dismissal of the charge. The
record fails to show that Montoya could not have obtained the documents before the charge
was dismissed. Consequently, there is no good cause to consider these exhibits on appeal.
various dates in August and September 2007. Montoya's name appears on most of them as a
sender or recipient. Since these documents also existed prior to the dismissal of the charge and
Montoya was aware of them before that time, there is no good cause to consider them on
appeal.

"The purpose of PERB Regulation 32635(b) is to require the charging party to present
its allegations and supporting evidence to the Board agent in the first instance, so that the
Board agent can fully investigate the charge prior to deciding whether to issue a complaint or
dismiss the case." (Regents of the University of California (2006) PERB Decision
No. 1851-H.) When a charging party raises for the first time on appeal unfair practice
allegations based on conduct that occurred after the charge was dismissed, the Board has not
found good cause to consider the allegations on appeal. Nonetheless, under these
circumstances the charging party may file a new unfair practice charge based on the post
dismissal conduct. (Sacramento City Unified School District (1992) PERB Decision No. 952.)
The Board agent dismissed Montoya's unfair practice charge on April 17, 2008. 	The
allegations raised for the first time in Montoya's supplemental filings are based on conduct that
occurred on May 21 and June 11, 2008. 	Thus, there is no good cause for the Board to consider
the new allegations on appeal. Indeed, to find otherwise would directly contravene the purpose
of PERB Regulation 32635(6) by allowing a charging party to add new allegations to the
charge as long as the appeal remained before the Board. However, the Board's finding does
not preclude Montoya from filing an unfair practice charge based on the post-dismissal
conduct, provided all of the requirements for filing a charge, including timeliness, are met.
MOU Violation/Unilateral Change
"The purpose of PERB Regulation 32635(b) is to require the charging party to present
The Board agent dismissed Montoya's unfair practice charge on April 17, 2008. The
allegations raised for the first time in Montoya's supplemental filings are based on conduct that
occurred on May 21 and June 11, 2008. Thus, there is no good cause for the Board to consider
the new allegations on appeal. Indeed, to find otherwise would directly contravene the purpose
of PERB Regulation 32635(b) by allowing a charging party to add new allegations to the
charge as long as the appeal remained before the Board. However, the Board's finding does
not preclude Montoya from filing an unfair practice charge based on the post-dismissal
conduct, provided all of the requirements for filing a charge, including timeliness, are met.
MOU Violation/Unilateral Change
The unfair practice charge alleged that the City violated the MMBA by not reimbursing
Montoya for mileage pursuant to Article Two, section VI(D) of the MOU between the City and
IAM. PERB has no jurisdiction to remedy a violation of a collective bargaining agreement
unless the violation also constitutes an unlawful unilateral change. (Grant Joint Union High
School District (1982) PERB Decision No. 196 (Grant); see County of Riverside (2003) PERB
10
The unfair practice charge alleged that the City violated the MMBA by not reimbursing
10
its allegations and supporting evidence to the Board agent in the first instance, so that the
Board agent can fully investigate the charge prior to deciding whether to issue a complaint or
dismiss the case." (Regents of the University of California (2006) PERB Decision
No. 1851-H.) When a charging party raises for the first time on appeal unfair practice
allegations based on conduct that occurred after the charge was dismissed, the Board has not
found good cause to consider the allegations on appeal. Nonetheless, under these
circumstances the charging party may file a new unfair practice charge based on the post-
dismissal conduct. (Sacramento City Unified School District (1992) PERB Decision No. 952.)
Montoya for mileage pursuant to Article Two, section VI(D) of the MOU between the City and
IAM. PERB has no jurisdiction to remedy a violation of a collective bargaining agreement
unless the violation also constitutes an unlawful unilateral change. (Grant Joint Union High
School District (1982) PERB Decision No. 196 (Grant); see County of Riverside (2003) PERB

Decision No. 1577-M [applying Grant under MMBA].)8 Thus, to the extent the charge alleged
an isolated breach of the MOU, PERB had no jurisdiction over the charge. Further, Montoya
does not have standing to allege a unilateral change because the City has no statutory duty to
meet and confer in good faith with him as an individual. (City of Beverly Hills (Transportation
Department) (2007) PERB Decision No. 1913-M.) For these reasons, the Board agent properly
dismissed the allegation that the City violated the MMBA by breaching the parties' MOU.
Retaliation	Retaliation
Decision No. 1577-M [applying Grant under MMBA].)" Thus, to the extent the charge alleged
The amended charge alleged that the City retaliated against Montoya for filing
grievances and an EEOC complaint by demoting him and issuing him a counseling
memorandum. 	On appeal, he argues that the timing of these events demonstrates the City took
the adverse actions against him because of his protected activity. For the following reasons,
we affirm the Board agent's dismissal of the retaliation allegation.
To establish a prima facie case of retaliation in violation ofMMBA section 3506 and
PERB Regulation 32603(a), Montoya must show that: 	(1) he exercised rights under MMBA;
(2) the City had knowledge of the exercise of those rights; and (3) the City imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained, or coerced him because of the exercise of those rights. 	(Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416
[182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
To establish a prima facie case of retaliation in violation of MMBA section 3506 and
The amended charge alleged that the City retaliated against Montoya for filing
8When 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
[ I 16 Cal.Rptr. 507].)
11
hen interpreting the MMBA, it is appropriate to take guidance from cases	W
11
an isolated breach of the MOU, PERB had no jurisdiction over the charge. Further, Montoya
does not have standing to allege a unilateral change because the City has no statutory duty to
meet and confer in good faith with him as an individual. (City of Beverly Hills (Transportation
Department) (2007) PERB Decision No. 1913-M.) For these reasons, the Board agent properly
dismissed the allegation that the City violated the MMBA by breaching the parties' MOU.
grievances and an EEOC complaint by demoting him and issuing him a counseling
memorandum. On appeal, he argues that the timing of these events demonstrates the City took
the adverse actions against him because of his protected activity. For the following reasons,
we affirm the Board agent's dismissal of the retaliation allegation.
PERB Regulation 32603(a), Montoya must show that: (1) he exercised rights under MMBA;
(2) the City had knowledge of the exercise of those rights; and (3) the City imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained, or coerced him because of the exercise of those rights. (Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416
[182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
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
[1 16 Cal.Rptr. 507].)

Protected Activity	Protected Activity
The charge alleged that Montoya engaged in two separate activities protected by the
MMBA: 	(1) filing the January 3, 2007 and July 30, 2007 mileage reimbursement grievances;
and (2) filing the September 14, 2007 EEOC complaint. Filing a grievance
is
protected
activity under the MMBA. (Bay Area Air Quality Management District (2006) PERB
Decision No. 1807-M.) However, filing an EEOC complaint is not protected activity.
(San Diego Unified School District (1991) PERB Decision No. 885.) Thus, the Board agent
properly found that the mileage grievances, but not the EEOC complaint, constituted protected
activity under MMBA.
As for the City's knowledge
of
Montoya's protected activity, the charge alleges that the
July 30, 2007 grievance proceeded through several different levels
of
review by City human
resources as provided for in the MOU. Thus, the City clearly had knowledge
of
this grievance.
As for the January 3, 2007 grievance, the charge alleges that human resources was not aware
of
the grievance. However, the charge also alleges that Montoya's Manager, Wada, called IAM
sometime prior to May 31, 2007, regarding the grievance because he believed Montoya's
mileage reimbursement had been authorized. Thus, the City also had knowledge
of
Montoya's
January 3, 2007 grievance.
The charge alleged that Montoya engaged in two separate activities protected by the
As for the City's knowledge of Montoya's protected activity, the charge alleges that the
July 30, 2007 grievance proceeded through several different levels of review by City human
resources as provided for in the MOU. Thus, the City clearly had knowledge of this grievance.
As for the January 3, 2007 grievance, the charge alleges that human resources was not aware of
the grievance. However, the charge also alleges that Montoya's Manager, Wada, called IAM
sometime prior to May 31, 2007, regarding the grievance because he believed Montoya's
mileage reimbursement had been authorized. Thus, the City also had knowledge of Montoya's
January 3, 2007 grievance.
Adverse Action	Adverse Action
12
Evidence
of
adverse action is also required to support a claim
of
retaliation. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In determining whether such evidence
is established, the Board uses an objective test and will not rely upon the subjective reactions
of
the employee. (Ibid.) 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.]
Evidence of adverse action is also required to support a claim of retaliation. (Palo Verde
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.]
12
MMBA: (1) filing the January 3, 2007 and July 30, 2007 mileage reimbursement grievances;
and (2) filing the September 14, 2007 EEOC complaint. Filing a grievance is protected
activity under the MMBA. (Bay Area Air Quality Management District (2006) PERB
Decision No. 1807-M.) However, filing an EEOC complaint is not protected activity.
(San Diego Unified School District (1991) PERB Decision No. 885.) Thus, the Board agent
properly found that the mileage grievances, but not the EEOC complaint, constituted protected
activity under MMBA.
Unified School District (1988) PERB Decision No. 689.) In determining whether such evidence
is established, the Board uses an objective test and will not rely upon the subjective reactions of
the employee. (Ibid.) In a later decision, the Board further explained that:

The charge alleged that the City took two adverse actions against Montoya:
(1) demoting him to a part-time assignment at the fire department on July 12, 2007; and
(2) issuing him a counseling memorandum on November 7, 2007. A counseling memorandum
that threatens future disciplinary action is an adverse action. 	(Los Angeles Unified School
District (2007) PERB Decision No. 1930.) Moreover, placing a document that could support
future discipline in an employee's personnel file is also an adverse action. 	(Alisal Union
Elementary School District (2000) PERB Decision No. 1412.) The November 7, 2007
counseling memorandum noted Montoya's failure to "provide quality customer service" during
his assignment to the fire department and warned that "[f]ailure to improve in this area may
result in disciplinary actions." Montoya's Manager, Wada, told Montoya that the
memorandum would be placed in his personnel file. 	For both of these reasons, the counseling
memorandum constituted an adverse action.
result in disciplinary actions." Montoya's Manager, Wada, told Montoya that the
(2)
The charge alleged that the City took two adverse actions against Montoya:
As for the alleged demotion, we need not determine whether it amounted to an adverse
action because the allegation is untimely. 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) 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 Community College District (1996) PERB
Decision No. 1177.) A charging party bears the burden of alleging that the charge is timely
filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
(Department oflnsurance) (1997) PERB Decision No. 1197-S.)
13
As for the alleged demotion, we need not determine whether it amounted to an adverse
Montoya filed his unfair practice charge on January 24, 2008. 	Thus, any conduct by the
City before July 24, 2007, cannot form the basis for a complaint. The charge alleged that
Montoya was assigned to the fire department on July 12, 2007. Accordingly, even if the
13
Montoya filed his unfair practice charge on January 24, 2008. Thus, any conduct by the
(1) demoting him to a part-time assignment at the fire department on July 12, 2007; and
issuing him a counseling memorandum on November 7, 2007. A counseling memorandum
that threatens future disciplinary action is an adverse action. (Los Angeles Unified School
District (2007) PERB Decision No. 1930.) Moreover, placing a document that could support
future discipline in an employee's personnel file is also an adverse action. (Alisal Union
Elementary School District (2000) PERB Decision No. 1412.) The November 7, 2007
counseling memorandum noted Montoya's failure to "provide quality customer service" during
his assignment to the fire department and warned that "[failure to improve in this area may
memorandum would be placed in his personnel file. For both of these reasons, the counseling
memorandum constituted an adverse action.
action because the allegation is untimely. 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) 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 Community College District (1996) PERB
Decision No. 1177.) A charging party bears the burden of alleging that the charge is timely
filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
(Department of Insurance) (1997) PERB Decision No. 1197-S.)
City before July 24, 2007, cannot form the basis for a complaint. The charge alleged that
Montoya was assigned to the fire department on July 12, 2007. Accordingly, even if the

assignment was an adverse action, it occurred outside
of
the six-month statute
of
limitations
period and therefore cannot support the issuance
of
a complaint.
Nexus	Nexus
assignment was an adverse action, it occurred outside of the six-month statute of limitations
To establish a prima facie case
of
retaliation, Montoya must demonstrate a "nexus"
between his protected activity and the City's adverse action. In other words, Montoya must
show that the City acted with discriminatory intent. Because direct evidence
of
discriminatory
intent is rarely possible, the Board has held that "unlawful motive can be established by
circumstantial evidence and inferred from the record
as
a whole." 	(Novato Unified School
District (1982) PERB Decision No. 210.)
The occurrence
of
the adverse action close in time to the employee's protected activity
is an important indicia of unlawful motive. (North Sacramento School District (1982) PERB
Decision No. 264.) However, timing alone
is
insufficient to establish retaliation. (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 (Campbell); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro); (3) the employer's inconsistent or
contradictory justifications for its actions (San Leandro); (4) the employer's cursory
investigation
of
the employee's misconduct; (5) the employer's failure to offer the employee
justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous
reasons; or (6) employer animosity towards union activists (San Leandro; Los Angeles County
Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683 [214 Cal.Rptr. 350]).
To establish a prima facie case of retaliation, Montoya must demonstrate a "nexus"
The occurrence of the adverse action close in time to the employee's protected activity
is an important indicia of unlawful motive. (North Sacramento School District (1982) PERB
Decision No. 264.) However, timing alone is insufficient to establish retaliation. (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 (Campbell); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro); (3) the employer's inconsistent or
contradictory justifications for its actions (San Leandro); (4) the employer's cursory
investigation of the employee's misconduct; (5) the employer's failure to offer the employee
justification at the time it took action or the offering of exaggerated, vague, or ambiguous
reasons; or (6) employer animosity towards union activists (San Leandro; Los Angeles County
Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683 [214 Cal.Rptr. 350]).
14
The Board agent concluded that the ten month lapse between Montoya's
January 3, 2007 mileage grievance and the November 7, 2007 counseling memorandum was
insufficient to establish the timing factor. 	However, Montoya re-filed his grievance on
July 30, 2007, approximately three months before he received the counseling memorandum.
14
The Board agent concluded that the ten month lapse between Montoya's
period and therefore cannot support the issuance of a complaint.
between his protected activity and the City's adverse action. In other words, Montoya must
show that the City acted with discriminatory intent. Because direct evidence of discriminatory
intent is rarely possible, the Board has held that "unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole." (Novato Unified School
District (1982) PERB Decision No. 210.)
January 3, 2007 mileage grievance and the November 7, 2007 counseling memorandum was
insufficient to establish the timing factor. However, Montoya re-filed his grievance on
July 30, 2007, approximately three months before he received the counseling memorandum.

Arguably, this still does not establish sufficient closeness in time to support an inference of
retaliation. 	(See Los Angeles Unified School District (1998) PERB Decision No. 1300 [lapse
of five months insufficient to establish timing factor]; Jurupa Community Services District
(2007) PERB Decision No. 1920-M [two months sufficient to establish timing].)
However, even if the charge establishes timing, it fails to establish any of the other
factors that would demonstrate a nexus between Montoya's grievances and the counseling
memorandum. The charge alleges no facts showing that Montoya was treated differently from
other similarly situated employees or that the counseling memorandum in any way departed
from established procedures. While Montoya argues on appeal that the memorandum was not
justified, he fails to allege facts showing that the City gave him inconsistent, contradictory,
exaggerated, vague, or ambiguous reasons for issuing him the memorandum or placing it in his
personnel file. Nor does the charge contain any allegation that the City harbored animus
against IAM or its members. For these reasons, the charge did not establish a nexus between
Montoya's protected activity and the City's adverse action against him. Accordingly, the
retaliation allegation was properly dismissed by the Board agent.
15
However, even if the charge establishes timing, it fails to establish any of the other
factors that would demonstrate a nexus between Montoya's grievances and the counseling
memorandum. The charge alleges no facts showing that Montoya was treated differently from
other similarly situated employees or that the counseling memorandum in any way departed
from established procedures. While Montoya argues on appeal that the memorandum was not
justified, he fails to allege facts showing that the City gave him inconsistent, contradictory,
exaggerated, vague, or ambiguous reasons for issuing him the memorandum or placing it in his
personnel file. Nor does the charge contain any allegation that the City harbored animus
against IAM or its members. For these reasons, the charge did not establish a nexus between
Montoya's protected activity and the City's adverse action against him. Accordingly, the
retaliation allegation was properly dismissed by the Board agent.
Arguably, this still does not establish sufficient closeness in time to support an inference of
ORDER	ORDER
The unfair practice charge in Case No. LA-CE-432-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
The unfair practice charge in Case No. LA-CE-432-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
15
Members McKeag and Rystrom joined in this Decision.	Members Mckeag and Rystrom joined in this Decision.
retaliation. (See Los Angeles Unified School District (1998) PERB Decision No. 1300 [lapse
of five months insufficient to establish timing factor]; Jurupa Community Services District
(2007) PERB Decision No. 1920-M [two months sufficient to establish timing].)