Sacramento Municipal Utility District (PERB 1838M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RICHARD VALENTINE MODIC, JR.,
Charging Party, Case No. SA-CE-365-M

Vv. PERB Decision No. 1838-M

SACRAMENTO MUNICIPAL UTILITY May 10, 2006

DISTRICT,

Respondent.

Appearances: Richard Valentine Modic, Jr., on his own behalf; Bruce Notareus, Senior
Attorney, for Sacramento Municipal Utility District.

Before Duncan, Chairman; Shek and McKeag, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations (PERB
or Board) on appeal by Richard Valentine Modic, Jr. (Modic) of a Board agent’s dismissal
(attached) of his unfair practice charge for failure to state a prima facie case. The charge
alleged that the Sacramento Municipal Utility District SMUD) violated the Meyers-Milias-
Brown Act (MMBA)! when it discriminated against Modic for engaging in protected activity.
Specifically, Modic alleged that this conduct constituted a violation of the National Labor
Relations Act (NLRA) (29 U.S.C. secs. 151-169, 185(a)).”

The Board reviewed the entire record in this case, including the unfair practice charge,

the documents attached thereto, the warning and dismissal letters, Modic’s appeal and

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

*The Board neither administers nor enforces the NLRA. For the purposes of this unfair
practice charge, we considered applicable provisions of the MMBA.

SMUD's response. We find the Board agent's dismissal to be free of prejudicial error. In
addition, the Board reviewed the first amended unfair practice charge, which was filed after the
Board agent dismissed the charge, the documents attached thereto, and SMUD's response. The
Board finds the first amended unfair practice charge was not timely filed and, therefore, not
subject to review on the merits. For these reasons, the Board adopts the Board agent's
dismissal as a decision of the Board itself.
BACKGROUND
On October 26, 2005, Modic, filed an unfair practice charge, alleging, among other
things, that he was discriminated against for engaging in protected activities. On November 7,
2005, the Board agent dismissed the charge for failure to state a prima facie case. On
November 8, 2005, after the initial charge was dismissed, Modic filed an amended unfair
practice charge. Later, on November 28, 2005, Modic appealed the dismissal. Because the
amended charge was filed after the issuance of the dismissal letter, Modic's first amended
unfair practice charge was not considered by the Board agent.
As discussed above, the Board agent's dismissal of the initial charge was free from
prejudicial error. The following discussion addresses the disposition of the first amended
charge.
DISCUSSION
PERB Regulation 32621 3 provides that a charging party may file an amended charge
"[b]efore the Board agent issues or refuses to issue a complaint." Modic filed his amended
charge on November 8, 2005. Since the charge was dismissed on November 7, 2005, the
amended charge was not timely filed by operation of PERB Regulation 32621.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

W
The Board, in its discretion, is permitted to excuse a late filing upon a showing of good
cause. In this case, Modic was informed in a warning letter dated, October 28, 2005, that his
charge failed to state a prima facie case. The warning letter also informed Modic that, unless
he amended his charge by November 4, 2005, it would be dismissed. Thus, the warning letter
clearly informed Modic of his obligation to file an amended charge by November 4, 2005, or
risk dismissal of his case.
By filing his charge on November 8, 2005, Modic failed to comply with both the
deadline imposed by the warning letter and the limitation period imposed by PERB
Regulation 32621. Since he presented no evidence to support a finding of good cause, Modic' s
late filing is not excused. Consequently, the first amended unfair practice charge was not
timely filed and, therefore, not subject to review on the merits.
ORDER
The unfair practice charge in Case No. SA-CE-365-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
3

STATE OF CALIFORNIA 	"r~-- 	(-. ) ARNOLD SCHWARZENEGGER, Governor
===========~-==============-'-- 	- ,,,
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
November 7, 2005
Richard Valentine Modic, Jr.
P.O. Box 278721
Sacramento, CA 95827
Re: 	Richard Valentine Modic, Jr. v. Sacramento Municipal Utility Dist
Unfair Practice Charge No. SA-CE-365-M
DISMISSAL LETTER
Dear Mr. Modic:
The above-referenced unfair practice charge was filed with the Public Employment Relation
Board (PERB or Board) on October 26, 2005. Your charge alleges that the Sacramento
Municipal Utility District (SMUD) violated the Meyers-Milias-Brown Act (MMBA)1 by
discriminating against you for engaging in protected activity.
s
I indicated in the attached letter dated October 28, 2005, 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 by November 4, 2005, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, the
charge is being dismissed based on the facts and reasons contained in the attached October 28,
2005 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-365-M
November 7, 2005
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. (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.)

SA-CE-365-M
November 7, 2005
Page 3
Final Date
(
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
ByRo~e1:f1tRegional Attorney
Attachment
cc: Bruce Notareus

=ST=A=T=E=O=F=C=A=LIF=O 	· lRNOLD SCHWARZENEGGER, Governor	=RNIA=======(""-'···.,••·-·====-~========"-(-·~-•
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
October 28, 2005
Richard Valentine Modic, Jr.
P .0. Box 278721
Sacramento, CA 95827
Re: 	Richard Valentine Modic, Jr. v. Sacramento Municipal Utility District
Unfair Practice Charge No. SA-CE-365-M
WARNING LETTER
Dear Mr. Modic:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 26, 2005. Your charge alleges that the Sacramento
Municipal Utility District (SMUD) violated the Meyers-Milias-Brown Act (MMBA)1 by
discriminating against you for engaging in protected activity.
The charge provides the following relevant factual allegations. You have been employed by
SMUD as a meter reader since October 1, 2001. On September 26, 2005, your employment
with SMUD was terminated.
The charge alleges that at some point you asked for a union representative. The charge also
states that you were placed on involuntary leave. You contend that you were discharged from
employment without just cause.
Based on the facts stated above, the charge does not state a prima facie case.
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."
Thus, 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.)
The charging party has the burden of providing specific evidence which demonstrates a prima
facie violation of the MMBA. Your charge does not comply with PERB Regulation
32615(a)(5) by providing a "clear and concise statement of the facts."
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-365-M
October 28, 2005
Page 2
(
To establish a prima facie case of discrimination in violation of Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: (1) the employee
exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because of the
exercise of those rights. (Campbell Municipal Employees Association v. City of Campbell
(1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Association v. City of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following nexus factors should be present: (1) the employer's disparate
treatment of the employee (Campbell, supra); (2) the employer's departure from established
procedures and standards when dealing with the employee (San Leandro Police Officers
Association, supra.); (3) the employer's inconsistent or contradictory justifications for its
actions (San Leandro Police Officers Association, supra.); (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 Police Officers
Association, supra; Los Angeles County Employees Association v. County of Los Angeles
(1985) 168 Cal.App.3d 683.).
The charge does not state a prima facie violation of discrimination under the MMBA. The
evidence does not establish that you engaged in protected activity in close temporal proximity
to the adverse action taken by the employer. Further, there is no evidence that the employer's
conduct was motivated by any protected activity. Accordingly, the charge must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer 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-365-M
October 28, 2005
Page 3
amended charge or a request to withdraw the charge by November 4, 2005, your charge will be
dismissed.
Sincerely,
@;wfi~Regional Attorney