State of California (Department of Personnel Administration) (PERB 2013S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
Case No. SA-CE-1648-S
PERB Decision No. 	2013-S
March 13, 2009
Appearances: 	Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; Paul
M.
Starkey, Labor Relations Counsel, for State
of
California (Department
of
Personnel Administration).
Before Rystrom, Chair; Wesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA)
of
a Board agent's dismissal ( attached)
of
its unfair practice charge. 	The charge
alleged that the State
of
California (Department
of
Personnel Administration) (DP A) violated
the Ralph
C.
Dills Act (Dills Act)1 by failing to provide CCPOA with requested information
relevant to ongoing negotiations for a successor memorandum
of
understanding. 	The Board
agent dismissed the charge for lack
of
timeliness and failure to state a prima facie case.
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, DP A's position statements, the Board agent's
warning and dismissal letters, CCPOA's appeal and DPA's response thereto. Based on this
1The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

review, the Board finds the Board agent's warning and dismissal letters to be a correct
statement
of
the law and well reasoned, and therefore adopts them as the decision
of
the Board
itself,2 as supplemented by the discussion below.
DISCUSSION
New Argument on Appeal
CCPOA argues for the first time on appeal that the statute
of
limitations should be
equitably tolled in this case. DP A responds that the Board cannot consider this argument
because it was not presented to the Board agent. 	Specifically, DP A relies on PERB Regulation
32635(b),3 which states in full: "Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence." DPA also relies on the Board's
use
of
PERB Regulation 32635(b) in State
of
California (Department
of
Food and Agriculture)
(1994) PERB Decision No. 1071-S (Food and Agriculture), to decline to consider an allegation
of
failure to provide requested information raised for the first time on appeal.
Neither PERB Regulation 32635(b) nor the Food and Agriculture decision apply here.
As the Board stated in South San Francisco Unified School District (1990) PERB Decision
No. 830, "[t]he 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." CCPOA's amended charge alleged that the charge was timely and presented evidence
in support of that allegation. CCPOA's equitable tolling argument on appeal is merely a new
In Long Beach Community College District (2009) PERB Decision No. 2002
(Long Beach CCD II), the Board held that the statute of limitations is not an affirmative
defense but an element of the charging party's prima facie case. In light of this holding, we do
not adopt the statement on page 2 of the attached warning letter that "The statute of limitations
is an affirmative defense which has been raised by the State in this case."
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
2

legal argument on the issue
of
the timeliness
of
the charge, based on the same evidence presented
to the Board agent. Thus, the equitable tolling argument does not constitute a new allegation or
new evidence and PERB Regulation 32635(b) does not preclude the Board from considering the
argument.
Equitable Tolling
The Board agent found that the six-month statute
of
limitations period for filing the
charge began on June 25, 2007, when CCPOA received DPA's response to its information
request. Because the only evidence presented by CCPOA that it had reasserted its information
request after that date was inadmissible under Evidence Code sections 703.5 and 1119, the
Board agent concluded that the charge filed on December 28, 2007, was untimely. 	CCPOA
argues that
if
PERB is going to apply these Evidence Code sections "in such a draconian
manner," it must reshape its equitable tolling doctrine "to protect and encourage parties who
participate in mediation under Government Code section 3518." Hence, CCPOA asks the
Board to extend its equitable tolling doctrine to apply to mandatory impasse mediation under
the Dills Act.
In Long Beach CCD II, the Board set forth the limited circumstances in which equitable
tolling will apply: 	"the statute
of
limitations is tolled during the period
of
time the parties are
utilizing a non-binding dispute resolution procedure if: 	(1) the procedure is contained in a
written agreement negotiated by the parties; (2) the procedure is being used to resolve the same
dispute that is the subject
of
the unfair practice charge; (3) the charging party reasonably and in
good faith pursues the procedure; and ( 4) tolling does not frustrate the purpose
of
the statutory
limitation period by causing surprise or prejudice to the respondent. "4 The Board noted that
4The Board adopted the doctrine of equitable tolling for cases arising under the Dills
Act in State of California (Department of Water Resources) (1981) PERB Order
No. Ad-122-S. Though PERB has not applied the doctrine in a Dills Act case since the
3

the "same dispute" requirement "prevents prejudice to the respondent because the initiation
of
the dispute resolution procedure puts the respondent on notice
of
the dispute that is the subject
of
the unfair practice charge." (Id., citing Victor Valley Community College District (1986)
PERB Decision No. 570.) Without a "same dispute" requirement, equitable tolling would
subject a respondent to "stale claims"
of
which the respondent had no notice, thereby
eviscerating the purpose
of
the statute oflimitations. (Id.; see Addison
v.
State
of
California
(1978)
21
Cal.3d 313, 317 [146 Cal.Rptr. 224] (Addison) ["[T]he primary purpose
of
statutes
of
limitation
is
to prevent the assertion
of
stale claims by plaintiffs who have failed to file their
action until evidence
is
no longer fresh and witnesses are no longer available."].)
Expanding the scope
of
equitable tolling as CCPOA urges would effectively eliminate
the "same dispute" requirement because mediation pursuant to Dills Act section 3518 does not
provide the respondent with notice
of
the subject
of
the unfair practice charge. In Long Beach
CCD II, non-binding mediation was the final step in a grievance process. Thus, by filing a
grievance over a unilateral change in classified employees' workweek, the union gave the
employer notice
of
the subject
of
the later unfair practice charge. 	In contrast, Dills Act
section 3518 provides for non-binding mediation as a mandatory impasse procedure. Filing a
request for Section 3 518 mediation with PERB does not put the other party on notice
of
a
dispute that could result in an unfair practice charge. At most, it lets the other party know that
the requesting party believes there is an impasse in negotiations. Allowing equitable tolling
when the parties participate in statutory impasse procedures is therefore contrary to the
standard the Board has established for adequately protecting a respondent from the assertion of
doctrine was reinstated in Long Beach Community College District (2003) PERB Decision
No. 1564 (Long Beach CCD I), in light of the virtually identical statute of limitations
provisions in the Dills Act and the Educational Employment Relations Act (cod. at Gov. Code
sec. 3540 et seq.), we conclude the doctrine, as recently refined in Long Beach CCD II, is
applicable in Dills Act cases.
4

stale claims. 	Consequently, we decline to extend PERB's equitable tolling doctrine to
encompass mandatory impasse mediation pursuant to Dills Act section 3518.
As an alternative to the extension
of
the equitable tolling doctrine, CCPOA argues that
equitable tolling is appropriate in this case under existing law. More specifically, CCPOA
asserts equitable tolling is appropriate here under the test set forth in Addison, which formed
the basis for the Board's equitable tolling test in Long Beach CCD
I.
	Because the Board's
formulation
of
the equitable tolling test in Long Beach CCD
II is
merely a refinement
of
the
test set forth in Long Beach CCD
I,
we apply the Long Beach CCD
II
test to the facts alleged
in the charge.
Upon review
of
the original and amended charge, we find that CCPOA has failed to
establish any
of
the required criteria for equitable tolling. First, the mediation procedure in
which CCPOA and DP A participated is not contained in a written agreement negotiated by the
parties. 	Instead, it was mandated by Dills Act section 3518. Second, the parties did not
mediate over CCPOA's information request but over the terms
of
a successor memorandum
of
understanding. 	Thus, the mediation was not "used to resolve the same dispute that is the
subject
of
the unfair practice charge." Third, CCPOA did not pursue mediation initially and in
fact opposed DP A's request for impasse determination by PERB. Nonetheless, the charge
does not indicate that CCPOA participated in mediation in bad faith. 	Finally, there are no
allegations in the charge, other than the inadmissible statements to and by the mediator, that
CCPOA reasserted its information request to DPA after June 25, 2007. Thus, because DP A
did not have notice of the subject of the unfair practice charge until the charge was filed,
tolling in this case would prejudice DP A.
For the foregoing reasons, we find that the statute of limitations was not equitably
tolled while the parties engaged in mandatory impasse mediation pursuant to Dills Act
5

section 3518. Accordingly, the Board agent properly dismissed the charge for lack
of
timeliness.
ORDER
The unfair practice charge in Case No. SA-CE-1648-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Rystrom and Member Wesley joined in this Decision.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Connsel
103118th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 24, 2008
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
ARNOLD SCHWARZENEGGER, Governor
Re: 	California Correctional Peace Officers Association v. State
of
California (Department
of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1648-S
DISMISSAL LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed \Vith the Public Employment Relations
Board (PERB or Board) on December 28, 2007. The California Correctional Peace Officers
Association (CCPOA) alleges that the State
of
California (Department
of
Personnel
Administration) (State or DP A) violated the Ralph C. Dills Act (Dills Act)1 by failing to
provide "complete and truthful" information in response to CCPOA's information request
of
April 6, 2007. The charge addresses both a response to said information request made by DP A
on June 25, 2007, and allegations that DPA failed to respond further despite CCPOA's
communications that it found the June 25 response to be unresponsive.
CCPOA was informed by the attached Warning Letter dated February 13, 2008, 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 that would correct the deficiencies explained in that
letter, CCPOA could amend the charge. You were further advised that, unless the charge was
amended
to
state a prima facie case or withdrawn prior to February 20, 2008, the charge would
be dismissed.
CCPOA's subsequent request for additional time in which to file an amended charge was
granted, and a First Amended Charge was filed on February 26, 2008.
Discussion
The February 13, 2008 Warning Letter first informed CCPOA that, to the extent the charge
alleged that the State violated section 3519, subsection (c) by failing to respond to the April 6,
2007 information request prior to seeking an impasse determination, the charge was filed more
than seven months after the complained-of conduct and was thus untimely filed. 	(Dills Act
1 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-1648-S
March 24, 2008
Page 2
(
section 3514.5, subsection (a)(l); Los Angeles Unified School District (2007) PERB Decision
No. 1929.) The First Amended Charge does not provide any new information or argument that
would change this conclusion, and thus the allegation that the State violated Dills Act section
3519, subsection (c) is dismissed.
The February 13, 2008 Warning Letter also informed CCPOA that a prima facie violation
of
Dills Act section 3519, subsection (e) was not demonstrated, for the following reasons:
The charge does not reveal how or in what way, or as to which
categories of information requested, the State's written response
was inadequate or incomplete. Further, except for the statement
that CCPOA sought clarification through the mediator, there is no
indication in the charge that CCPOA communicated to DP A that
the response was incomplete.
(Emphasis in original.)
In its First Amended Charge, CCPOA does provide additional information
as
to which specific
items it found DP
A's
June 25 response deficient. In addition to providing this additional
detail, the First Amended Charge, in relevant part, adds the following allegations to its
statement
of
the charge:
Specifically, during mediation sessions on August 8, August 9,
August
21
and August 22, 2007, representatives
of
CCPOA
communicated to DP A through the mediator that the June 25,
2007 response was incomplete, inaccurate and that CCPOA
required more information to meaningfully participate in
mediation. At each session, the mediator stated that he would
seek further information from DP A in response to CCPOA
requests. At each session, CCPOA representatives renewed their
requests for information in light
of
the mediator's assurances that
he would encourage DP A to provide further information.
CCPOA relied on the mediator's assurances that he was seeking
and hoped to obtain the cooperation
of
DPA in providing the
needed information. It was not until the final mediation sessions
on August
21
and 22, 2007 that representatives
of
CCPOA
learned through the mediator that DP A had no intention
ofproviding the requested information.
The repeated requests by CCPOA to receive information on the
issues described
...
stand alone as new requests when viewed in
the context of which each request occurred. CCPOA made
requests during the August mediation sessions and was told by

SA-CE-1648-S
March 24, 2008
Page 3
the mediator that he was seeking DP
A's
cooperation and that he
was attempting to procure the information from DP A. Thus
CCPOA did not become aware
of
DP
A's
firm refusal to provide
the requested information until the mediation sessions
of
August
21
and 22.
For the following reasons, the First Amended Charge fails to state a prima facie violation
of
Dills Act section 3519, subsection (e). CCPOA's charge still relies upon the assertion that
alleged deficiencies were discussed by the mediator, the mediator reported discussing the
information requests with DP A, and the mediator ultimately reported that DP A would not
provide additional information. Missing from this account is the requisite "who, what, when,
where and how"
of
an unfair practice. (PERB Regulation 32615(a)(5)2; State
of
California
(Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S.) CCPOA does not
provide any facts to establish CCPOA communicated directly with DP A, as opposed to
through the mediator, during the relevant time frame concerning its dissatisfaction with the
response to its information request. 3 (State
of
California (Departments
of
Personnel
Administration and Transportation) (1997) PERB Decision No. 1227-S; Oakland Unified
School District (1983) PERB Decision No. 367.)
Sole reliance on alleged communications made through and by the mediator is not sufficient to
state a prima facie case for the following reason. The mediator in this matter was appointed,
following PERB' s approval
of
the State's request for impasse determination/appointment
of
a
mediator in PERB Case No. SA-IM-3041-S, by the California State Mediation and
Conciliation Service (CSMCS). Labor Code sections 65 and 66 provide for the conduct
of
mediation in labor disputes by CSMCS-employed mediators. Labor Code section 65 further
provides that Evidence Code section 703.5, as well as Chapter 2 (commencing with section
1115)
of
Division 9
of
the Evidence Code, shall apply to mediation conducted pursuant to
Labor Code section 65.
Evidence Code section 703.5, in relevant part, reads as follows:
No person presiding at any judicial or quasi-judicial proceeding,
and no arbitrator or mediator, shall be competent to testify, in any
subsequent civil proceeding, as to any statement, conduct,
decision, or ruling, occurring at or in conjunction with the prior
proceeding, except as to a statement or conduct that could (a)
2 PERB' s Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
3 CCPOA also omits from the instant charge any reference to the letters sent by CCPOA
to DP A on August 22 and 31, 2007 that addressed, in part, the request for information, as well
as DP A's response letter of September 4, 2007. These documents were considered in
dismissing a refusal to provide information allegation raised in PERB Case No.
SA-CE-1621-S. CCPOA' s appeal of that dismissal is now pending before the Board itself.

SA-CE-1648-S
March 24, 2008
Page 4
give rise to civil or criminal contempt, (b) constitute a crime, (c)
be the subject
of
investigation by the State Bar or Commission on
Judicial Performance, or (
d)
give rise to disqualification
proceedings under paragraph (1) or (6)
of
subdivision (a)
of
Section 170.1
of
the Code
of
Civil Procedure.
Further, Evidence Code section 1119 provides in relevant part that, except
as
otherwise
expressly provided,
(a) No evidence
of
anything said or any admission made for the
purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation is admissible or subject to discovery, and
disclosure
of
the evidence shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can
be compelled to be given.
(c) All communications, negotiations, or settlement discussions
by and between participants in the course
of
a mediation or a
mediation consultation shall remain confidential.
It would be, at best, inconsistent with the statutory provisions cited above to rely upon
assertions as to alleged communications made with and by the mediator as the requisite
evidence to support issuance
of
a complaint in this matter.
Therefore, I am dismissing the charge based on the facts and reasons set forth above as well as
in the February 13, 2008 Warning 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.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
together with a Facsimile Transmission Cover Sheet which meets the requirements of
Regulation 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.)

SA-CE-1648-S
March 24, 2008
Page 5
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
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(6).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
II
II
II
II
II
II
II

SA-CE-1648-S
March 24, 2008
Page 6
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
_________________
_
Les Chisholm
Division Chief
Attachment
cc: 	Paul M. Starkey

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
103118th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
February 13, 2008
Suzanne
L.
Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
( 	ARNOLD SCHWARZENEGGER, Governor
Re: 	California Correctional Peace Officers Association v. State
of
California (Department
of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1648-S
WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 28, 2007. The California Correctional Peace Officers
Association (CCPOA) alleges that the State
of
California (Department
of
Personnel
Administration) (State or DP A) violated the Ralph
C.
Dills Act (Dills
Act/
by failing to
provide "complete and truthful" information in response to CCPOA's information request
of
April 6, 2007.
CCPOA
is
the exclusive representative
of
State Bargaining Unit 6 - Corrections. The most
recent memorandum
of
understanding (MOU) between CCPOA and the State expired by its
own terms as
of
June 30, 2006. 	By letter dated April 13, 2006, DP A notified CCPOA
of
its
readiness to commence bargaining toward a successor MOU.2
On April 6, 2007, CCPOA responded to a revised package offer by DPA by submitting an
information request, listing
21
categories
of
information, "in an effort to understand the
entirety
of
the state's conceptual proposals."
On May 10, 2007, the State filed with PERB a Request for Impasse Determination/
Appointment
of
Mediator (PERB Case No. SA-IM-3041-S). CCPOA opposed the request, but
the request was approved and a mediator was appointed on May 17, 2007. As
of
May 10, the
State had not responded to the April 6 information request.
On June 25, 2007, DPA delivered an eight-page response to CCPOA, through the mediator,
concerning each
of
the 21 categories of information listed in the April 6 request. The charge
1 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 Notice has been taken of the contents of PERB's files concerning a related impasse
case, PERB Case No. SA-IM-3041-S.

SA-CE-1648-S
February 13, 2008
Page 2
alleges that, upon receipt
of
the response, CCPOA "determined it to be grossly inadequate and
incomplete." The charge further alleges that on June 25, "and into July 2007," CCPOA sought
the mediator's assistance in "clarifying the many unclear responses" but that the mediator
"later" told CCPOA that the State would not provide further information.
Discussion
CCPOA alleges the State violated Dills Act section 3519 by failing and refusing to provide
"complete and truthful" information. The exclusive representative is entitled to all information
that is "necessary and relevant" to the discharge
of
its duty
of
representation. (Stockton
Unified School District (1980) PERB Decision No. 143.) PERB uses a liberal standard,
similar to a discovery-type standard, to determine relevance
of
the requested information.
(California State University (1986) PERB Decision No. 613-H.) Failure to provide such
information is a per se violation
of
the duty to bargain in good faith and, under the Dills Act,
violates either Government Code section 3519(c) or 3519(e).3 However, there is no violation
when an employer partially complies with the request for information and the union fails to
communicate its dissatisfaction, or to reassert or clarify its request. 	(State
of
California
(Departments
of
Personnel Administration and Transportation) (1997) PERB Decision
No. 1227-S; Oakland Unified School District (1983) PERB Decision No. 367.)
Alleged Violation
of
Dills Act section 3519(c)
As discussed above, DPA filed its request for the appointment
of
a mediator on May 10, 2007,
E-BRB
determined that the parties were at impasse on May 17, 2007, and the instant charge was
not filed until December 28, 2007. Thus, to the extent the charge alleges that the State violated
section 3 519(c) by failing to respond to the April 6 information request prior to seeking an
impasse determination, the charge was filed more than seven months after the complained-of
conduct and is untimely and must be dismissed. Dills Act section 3514.5(a)(l) 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 statute
of
limitations is
an affirmative defense which has been raised by the State in this case. (Long Beach
Community College District (2003) PERB Decision No. 1564.) A charging party bears the
burden
of
demonstrating that the charge is timely filed. 	(cf. Tehachapi Unified School District
(1993) PERB Decision No. 1024; State
of
California (Department ofinsurance) (1997) PERB
Decision No. 1197-S.)
Alleged Violation
of
Dills Act section 3519(e)
CCPOA further alleges that the State violated the Dills Act through its June 25, 2007 response,
which CCPOA determined was "grossly inadequate and incomplete." The charge does not
It is necessary under applicable precedent to analyze conduct before and after the
initiation
of
statutory impasse procedures as separate unfair practice allegations. (See Moreno
Valley Unified School District v. Public Employment Relations Board (1983) 142 Cal.App.3d
191 and, for example, Temple City Unified School District (1990) PERB Decision No. 841.)

SA-CE-1648-S
February 13, 2008
Page 3
(
reveal how or in what way, or as to which categories
of
information requested, the State's
written response was inadequate or incomplete. Further, except for the statement that CCPOA
sought clarification through the mediator, there is no indication in the charge that CCPOA
communicated to DP A that the response was incomplete.
PERB Regulation 32615(a)(5) requires, inter alia, 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. 1071-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.) For the reasons discussed
above, the present charge fails to state a prima facie case under these standards.
The charging party's burden also 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. (Dills Act section 3514(a)(l);
see also 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 knows, or should have known,
of
the conduct underlying the charge. (Gavilan
Joint Community College District (1996) PERB Decision No. 1177.) Here, the State's
response to the information request was received by CCPOA on June 25, 2007, and the charge
was not filed until December 28, 2007. While the charge references subsequent interaction
with the mediator regarding the information request, and the fact that the State has not
provided an additional response to the April 6 request, these vague allegations are insufficient
to demonstrate that the charge is timely filed.
Conclusion
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

SA-CE-1648-S
February 13, 2008
Page 4
amended charge or withdrawal from you before February 20, 2008, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief