State of California (Department of Forestry and Fire Protection) (PERB 1619S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MOSES M. SARINANA,
Charging Party, Case No. SA-CE-1398-S

Vv. PERB Decision No. 1619~+S

STATE OF CALIFORNIA (DEPARTMENT OF April 16, 2004

FORESTRY & FIRE PROTECTION),

Respondent.

Appearances: Moses M. Sarinana, on his own behalf; State of California (Department of
Personnel Administration) by Gail T. Onodera, Labor Relations Counsel, for State of
California (Department of Forestry & Fire Protection).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Moses M. Sarinana (Sarinana) of a Board agent’s dismissal (attached)
of his unfair practice charge. The charge alleged that the State of California (Department of
Forestry & Fire Protection) (State) violated the Ralph C. Dills Act (Dills Act)! by retaliating
against Sarinana for protected activities. The Board agent dismissed the charge as untimely.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters, Sarinana’s appeal and the State’s response. The

Board finds the warning and dismissal letters to be free of prejudicial error and adopts them as

the decision of the Board itself, subject to the discussion below.

‘The Dills Act is codified at Government Code section 3512, et seq.

DISCUSSION
Sarinana's unfair practice charge was filed on April 7, 2003. As all the relevant events
in the charge occurred in June, July, and August 2002, the Board agent dismissed the charge as
untimely. On appeal, Sarinana urges the Board to excuse his untimely charge. Sarinana
alleges that:
The original case was put together by me, and submitted to CDF
Firefighters (Employees Association) on October 2002. After
learning that the case was still sitting on the shelves of the
association office I ask [sic] why, and the reply from state rank &
file office was they [were too] busy, I immediately requested the
files back.
Sarinana's appeal must be rejected.
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.
Sarinana's allegations regarding why his charge was filed late constitute new supporting
evidence. Sarinana provides no reason why he could not have included such evidence in an
amended charge. Indeed, Sarinana requested and received an extension to file an amended
charge, but failed to do so. Accordingly, the Board finds that good cause does not exist to
accept Sarinana's new evidence.
Even if the Board were to accept Sarinana's new evidence, however, the disposition of
this case would not change. Sarinana alleges that his union "misrepresented" his claim by
allowing the claim to expire. However, there is no evidence that Sarinana or his union ever
filed a contract grievance, which may have tolled the limitations period. (Long Beach
Community College District (2003) PERB Decision No. 1564.) These allegations, even if
accepted as true, would not save Sarinana's untimely charge.
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

ORDER
The unfair practice charge in Case No. SA-CE-1398-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916)
Fax: (916) 327-6377
June 25, 2003
Moses M. Sarinana
Re: 	Moses M. Sarinana v. State of California (Department of Forestry & Fire Protection)
Unfair Practice Charge No. SA-CE-1398-S
DISMISSAL LETTER
Dear Mr. Sarinana:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 7, 2003 and amended to provide the proof of service on April
23, 2003. You allege that the State of California (Department of Forestry & Fire Protection)
violated the Ralph C. Dills Act (Dills Act)' by retaliating against you.
I indicated to you in my attached letter dated June 6, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to June 13, 2003, the charge would be dismissed. I spoke
with you on June 10, and you explained that you needed additional time to amend your charge.
We selected June 23, 2003, as the date by which you should amend your charge.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my June 10 letter.
Right to Appeal
Pursuant to PERB Regulations," you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1398-S
June 25, 2003
Page 2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date

SA-CE-1398-S
June 25, 2003
Page 3
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Marie A. Nakamura
Regional Attorney
Attachment
cc: Gail T. Onodera

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
June 6, 2003
Moses M. Sarinana
Re: 	Moses M. Sarinana v. State of California (Department of Forestry & Fire Protection)
Unfair Practice Charge No. SA-CE-1398-S
WARNING LETTER
Dear Mr. Sarinana:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 7, 2003 and amended to provide the proof of service on April
23, 2003. You allege that the State of California (Department of Forestry & Fire Protection)
violated the Ralph C. Dills Act (Dills Act)' by retaliating against you.
You work for the California Department of Forestry in Santa Clara and are a member of State
Bargaining Unit 8, represented by the CDF Firefighters. Previously you worked in Riverside
and on an undisclosed date you began working in Santa Clara as a Limited Term Fire
Apparatus Engineer.
On June 24, 2002, you became the CDF Firefighters Santa Clara Chapter's rank and file
representative. You were immediately asked to represent a member who had been demoted.
On June 25, 2002, you called CDF Administration Chief Rick Hutchinson to ask questions
about the demotion case. Mr. Hutchinson became very upset and told you that the matter was
being dealt with as a rejection of probation.
On June 29, 2002, you had a meeting with Operations Chief John Ferreira. During that
meeting, Mr. Ferreira stated that you were number 20 on a hire list, ranked number 4 and that
there were at least four permanent Fire Apparatus Engineer openings. On June 30, 2002, you
received a phone call from Mr. Hutchinson. He explained that he was sending you back to
Riverside because there had been a mistake and you were not reachable on the Fire Apparatus
Engineer list. He told you that your report back date to Riverside was July 1, 2002. On July 2,
you received a phone call from Mr. Ferreira who told you that there had been a mistake and
you could stay in Santa Clara.
On July 9, 2002, you received a call from Riverside Battalion Chief Jim Cook, who asked you
if you would be reporting to work in Riverside on July 10. When you explained that you had
been told by Mr. Ferreira that there had been a mistake and you were to stay in Santa Clara,
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1398-S
June 6, 2003
Page 2
Mr. Cook told you that if you did not report to work in Riverside on July 10, you would be
absent without leave. There are no facts in the charge indicating whether you reported to work
in Riverside on July 10, 2002.
In early August 2002, you were at the Morgan Hill Headquarters and you heard Mr.
Hutchinson on the phone asking if he could pick from a higher rank for Fire Apparatus
Engineer, because he wanted to select someone from the academy for the position.
Discussion
As Charging Party, you allege that the CDF violated the Dills Act by retaliating against you.
Further you allege that CDF violated Government Code sections 3502.1, 18525.1 and
11507.6(E). For the following reasons this charge fails to establish a prima facie violation of
the Dills Act.
Dills Act section 3514.5(a)(1) prohibits PERB 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." 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.) The charging party bears the burden of demonstrating 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.)
This charge was filed on April 7, 2003. Thus only conduct occurring on or after October 7,
2002 falls within the six-month statue of limitations. The facts provided in the charge occurred
in June, July and August 2002 when Mr. Hutchinson allegedly retaliated against you by stating
that you were not reachable on the Fire Apparatus Engineer list and threatening to transfer you
back to Riverside. As such, the allegation that Mr. Hutchinson retaliated against you is outside
the statute of limitations and PERB does not have jurisdiction to address it.
It should also be noted that you allege without explanation that CDF violated Government
Code sections 18525.1 and 11507.6(B) and 3502.1.
Government Code section 3502.1 provides:
No public employee shall be subject to punitive action or denied
promotion, or threatened with any such treatment, for the exercise
of lawful action as an elected, appointed, or recognized
representative of any employee bargaining unit.
This section of the Government Code is part of the Meyers-Milias-Brown Act, which covers
most employees of California's counties, cities and special districts. Although PERB does
have jurisdiction to administer this Act, it does not apply to employees of the State of
California, and is thus inapplicable to this charge. The other two sections of the Government
Code allegedly violated are not within PERB's jurisdiction.

SA-CE-1398-S
June 6, 2003
Page 3
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 June 13, 2003, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Marie A. Nakamura
Regional Attorney
MAN