State of California (Department of Mental Health, Department of Developmental Services) (PERB 2305S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
R
JENNIFER XU,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
MENTAL HEAL TH, DEPARTMENT OF
DEVELOPMENTAL SERVICES),
Respondent.
Case No. SA-CE-1937-S
PERB Decision No. 2305-S
December 31, 2012
Appearances: Jennifer Xu, on her own behalf; Department
of
Human Resources, Legal
Division, by Barrett
W.
Mclnerney, Labor Relations Counsel, for State
of
California
(Department
of
Mental Health, Department
of
Developmental Services).
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Jennifer Xu (Xu) from the dismissal
of
her unfair practice
charge. The charge alleges that the State
of
California (Department
of
Mental Health,
Department
of
Developmental Services) (State) violated the Ralph
C.
Dills Act (Dills Act).1
The statement of facts attached to the unfair practice charge form contains a description
of
various documents sent by
Xu
to the California State Auditor's Office and the Governor's
Office on June 23 and August 2, 2012. It does not contain a clear and concise statement
of
conduct alleged to constitute an unfair practice within PERB's jurisdiction as required by
PERB Regulation 32615(a)(5).2 The Office of the General Counsel issued a warning letter in
1 The Dills Act is codified at Government Code section 3512 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

response to the initial charge, stating that it is Xu' s burden to allege facts sufficient to
constitute an unfair practice and that the allegations
of
the charge do not relate to any
conduct
that is within PERB' s jurisdiction. The warning letter invited Xu to amend the charge
in the
event there were factual inaccuracies contained in the warning letter or additional facts
that
would correct the deficiencies in the charge. The warning letter instructed Xu to submit
the
amended charge on a standard PERB unfair practice charge form, with the required declaration
attesting to the veracity
of
the allegations in the amended charge.3 An amended charge
was
filed but did not, however, cure the deficiencies
of
the charge as stated in the warning letter.
Nor did it contain the requisite declaration. The Office
of
the General Counsel dismissed the
charge for failure to state a prima facie violation
of
the Dills Act. Xu filed a timely appeal.
The Board has reviewed the record in its entirety and fully considered the appeal.
Based on this review, the Board finds the warning letter to be well-reasoned, adequately
supported by the record and in accordance with the applicable law. Accordingly, the
Board
adopts the warning letter (attached) in dismissing the charge and incorporates it as part
of
the
decision
of
the Board itself, as supplemented by the discussion below.4
DISCUSSION
Pursuant to PERB Regulation 32635(a), an appeal from dismissal must:
(1) State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
3 PERB Regulation 3261 S(a) requires that the charge be signed under penalty
of
perjury
by the party or the party's agent with the declaration that the charge is true, and complete to
the best
of
the charging party's knowledge and belief.
4 Because the amended charge was not filed in accordance with PERB regulations, we
affirm the dismissal of the charge for the reasons stated in the warning letter, i.e., that it is Xu's
burden to set forth facts constituting an unfair practice charge under the applicable labor
relations statutes and that the conduct set forth in the charge does not relate to conduct that is
within PERB's jurisdiction. For this reason, only the warning letter is adopted as part
of
the
decision of the Board itself.
2

(2) Identify the page or part
of
the dismissal to which each appeal
is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must sufficiently
place the Board and the respondent "on notice
of
the issues raised on appeal." (State
Employees Trade Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H (State
Employees Trade Council); City & County
of
San Francisco (2009) PERB Decision
No. 2075-M.) An appeal that does not reference the substance
of
the Board agent's dismissal
fails to comply with PERB Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt)
(2009) PERB Order No. Ad-381 (Pratt); Lodi Education Association (Hudock) (1995) PERB
Decision No. 1124; United Teachers - Los Angeles (Glickberg) (1990) PERB Decision
No. 846.) Likewise an appeal that merely reiterates facts alleged in the unfair practice charge
does not comply with PERB Regulation 32635(a). (Pratt; State Employees Trade Council;
Contra Costa County Health Services Department (2005) PERB Decision
No. 1598-M.)
The appeal in this case consists
of
a one and half page cover letter5; a version
of
the
Office
of
the General Counsel's dismissal letter with interlineations in bolded text containing
5 In the cover letter, Xu requested the Board's review
of
the dismissal "because the case
has not settled yet," which presumably refers to any one
of
a number
of
cases filed by
Xu
since
2006
in
the superior courts and in administrative tribunals (State Personnel Board (SPB), Equal
Employment Oppmiunity Commission (EEOC), Department of Fair Employment and
Housing, California Unemployment Insurance Appeals Board). As alleged, Xu was separated
from employment with the State at or around the end
of
2007, and a number of the cases
appear to have been filed in connection with that event and/or earlier events. According to the
amended charge, Xu received documents from the EEOC on June 15, 2012, which prompted
Xu to visit SPB. For reasons unexplained by the charge, SPB referred Xu to PERB. After
Xu's visit to SPB, Xu filed cases with "the office of the state audit," "the Governor's office"
and PERB. As stated in the warning letter, the allegations of the charge do not relate to
conduct constituting an unfair practice under the Dills Act.
3

factual clarifications, mainly concerning dates
of
various events described in the dismissal
letter; and a 14 page re-statement
of
the amended charge. The appeal, in large part, restates
facts alleged in the charge, as amended. It does not reference any portion
of
the Office
of
the
General Counsel's dismissal or otherwise identify the specific issues
of
procedure, fact,
law
or
rationale to which the appeal is taken, the page or part
of
the dismissal to which the appeal is
taken, or the grounds for each issue. 	Thus, it is subject to dismissal on that basis alone. 	(City
of
Brea (2009) PERB Decision No. 2083-M.)6
ORDER
The unfair practice charge in Case No. SA-CE-1937-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
6 Given the outcome reached, it is unnecessary to decide on the State's request for relief
to file late response to appeal or any of the "procedural fatalities" of Xu's appeal complained
of therein except as discussed herein.
4

STATE
OF
CALIFORNIA 	E
PUBLIC EMPLOYI\f.EI''ff RELATIONS BOARD
R
Sacramento
Regional
Office
IOJl
18th
Street
Sacramento,
CA
95811-4124
T0lephonc;
(916) 327
•
7242
PIil':
(916)327-6377
R
September
7,
2012
Jennifer
Xu
P.O. Box 4848
San Luis Obispo, CA 93403
Re: 	Jennifer
Xu
v.
State
of
California (Department
of
Mental
Health,
Department
of
Developmental Services)
Unfair Practice Charge No. SA-CE-1937-S
WilNlNG
LETTER
Dear
llvfa.
Xu:
The above-referenced unfair practice charge
was
filed with the Public Employment Relations
Board (PERB
or
Board) on August 20, 2012. Jennifer Xu (Xu or Charging
P11t-ty)
alleges that
the State of California (Deputm.ent of Mental Health, Department
of
Developmental Services)
(State) violated the Ralph
C.
Dills Act (Dills Act). 1
PERB's Jurisdiction
PERB
fo
a quasHudicial administrative agency charged with administering the collective
bargaining statutes coYering public employees. Charging Party alleges that the State's conduct
violates the Dills Act. However, the Dills Act is limited in scope, :regulating only certain
conduot by employers and exclusive representatives and not every aspect of an employer's
conduct.
(Los
Angeles Community College District (1979) PERB Order No. Ad-64.)
Charging Party's Burden
PERE Regulation 32615(a)(5)2 requires, inter alia, that
a.fl
unfair
prac+J.ce
charge include a
"clear and concise statement of the facts and conduct alleged
to
constitute an unfair practice."
The charging party should endeavor to include those facts alleging
ti:i:e
"who, what, when,
where and
ho\.v"
of
an unfair practice. (State
of
California (Department
of
Food and
Agriculture) (1994) PBRB 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.)
1 Tne Dills Act is codified at
Government Code section 3512 et seq, The
text of the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.
2 PERB regulations are codified at California Code of Regulations, title
8,
section
31001 et seq.

SA-CE-1937-S
September
7,
2012
Pa.ge2
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 Schoo/District (2007) PERB Decision
No.
1929';
City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is
prohibited
from issuing a complaint with respect to
any
charge based upon
an
alleged unfair practice
occurring more than six months prior to the filing
of
the charge. (Coachella Valley Mosquito
and Vector Control Distrtctv. 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 (i996) PERB
Decision No. 1177.)
Discussion
Here, the charge, in its entirety, coru.ists of a handwritten document from Charging Party
indicating that
on
June 23, 2012 and
Aug-JSt
2,
2012, Charging Party sent documents to the
Califort>ia State Auditor's Office
a.11d
the Governor's Office. The charge then lfats the
documents in question that she purports
to
have sent to those offices. However,
no11e
of the
listed documents appear to
rele.te to
conduct that is within PERB 's jurisdiction. As such,
Charging Party has failed to provide any
fa.cts
for
PE~
to make a prima facie determination
as to whether the 8tate has violated Charging Party's rights under the Dills Act. 3
For these reasons the chatge,
as
presenUy
WTitten,
does not state a prima facie case. 4 If there
are any factual inaccuracies in this letter or additional
foots
that would correct the deficiencies
e,:plained
u.oove,
Charging Party
m.ay amem:I:
the charge. The amended charge should
be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make,
and
be signed under penalty of
perjury by an authorized agent of Charging Party, The amended charge must have the case
number written on the top right hand comer of the charge form. The amended charge must be
3 On August 29,
2012>
Charging Party sent, by facsimile,
a.
36-page document that
appeurs to be a colfoction of several personnel items that relate to Charging Party's
employment application process with the State.
It
is unclear whether Charging Party intended
this facsimile to constitute an amended charge or a supplement to her original charge,
Nonetheless,
a.
charge does not satisfy
PER.B
Regulation 32615(a)(5) when facts contained in
documents attached to the charge are not referenced in the charge
itllelf. (Sacramento City
Teachers Association
(Franz)
(2008) PERB Decision No. 1959.)
4 In Eastside
Union
School District (1984)
PERB
Decision No,
'1-66,
the Board
explained
th.at
a prim.a facie case is established where the Board agent is able to make
"a.
determination
that
the facts as alleged in the charge state a legal cause of action and
that
the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently> where the investigation results in receipt of conflicting allegations of fact or
contra..j' theories oflaw, fair proceedings, ih.ot
due process, demand that a complaint be
issued and the matter be sent to formal hea...;ng," (Ibid,)

SA-CE-1937-S
September 7, 2012
Page 3
served
on the respondent's representative and the original
proof
of
service must be filed with
PERB.
If an amended charge or withdrawal is uot filed
on
or before
Septembtr
17, 2012,5 PERB will
dismiss.the charge.
If
yoi.;.
have any·questions, please call me at the above telephone number.
JC
5 A document
is
"filed" on 	document is ..
..,
.....
,i:i
r,,eerv~n
including if transmitted via facsimile. (PERB Regulation 32135.)