Pomona Unified School District (PERB A438E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PABLO FELIX PINTOR,
Charging Party,
v.
POMONA UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-6023-E
Administrative Appeal
PERB Order No. Ad-438
June 9, 2016
Appearances: Pablo Felix Pintor, on his own behalf; Fagen Friedman & Fulfrost LLP by
Howard F. Friedman and James K. Ayden, Attorneys, for Pomona Unified School District.
Before Winslow, Banks and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Pablo Felix Pintor (Pintor) from an administrative
determination by the PERB Appeals Assistant that Pintor’s appeal of the dismissal of his unfair
practice charge was untimely. We have reviewed the entire record in this matter and find that
the Appeals Assistant’s administrative determination was not in accordance with PERB
Regulations. Therefore, we reverse the Appeals Assistant’s administrative determination and
remand the matter for further processing.
PROCEDURAL HISTORY
On April 20, 2015, Pintor filed an unfair practice charge alleging that the Pomona
Unified School District (District or Respondent) violated the Educational Employment
Relations Act (EERA or Act)1 by discriminating against him.
1 EERA is codified at Government Code section 3540 et seq.

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On September 10, 2015, the Office of the General Counsel issued a warning letter for
failure to state a prima facie case. Pintor was invited to amend his charge to correct any
factual inaccuracies contained in the warning letter and/or to provide additional facts to correct
the charge deficiencies outlined in the warning letter. After requesting and receiving an
extension of time to file an amended charge, Pintor filed a document titled unfair practice
charge, first amended charge. The filing did not comply with PERB Regulation 326152
because there was no signature under penalty of perjury and no completed proof of service
showing that the District had been served with a copy of the documents. A “Filing Deficiency
Letter” was sent to Pintor on October 20, 2015, by the Office of the General Counsel. After
receiving no response, the Office of the General Counsel then dismissed the charge on
November 10, 2015. However, because of an inadvertent clerical error, PERB records
contained an incorrect mailing address for Pintor. As a result, the November 10, 2015
Dismissal Letter was subsequently revoked to allow for proper service.
On December 23, 2015, the Office of the General Counsel corrected the service error
by sending Pintor copies of the September 10, 2015 Warning Letter and the October 20, 2015
Filing Deficiency Letter to Pintor’s correct address. The Office of the General Counsel
included a letter with the December 23, 2015 mailing informing Pintor that he was being
afforded an opportunity to correct the deficiencies set forth in the October 20, 2015 Warning
Letter. Pintor did not respond. On February 1, 2016, the Office of the General Counsel
dismissed the charge for failure to state a prima facie case. Pintor was informed that he had 20
days within which to appeal the dismissal.
PERB Regulation 32615 sets forth the requirements for filing an unfair practice
charge.
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On February 16, 2016, Pintor filed his appeal. On February 22, 2016, the PERB
Appeals Assistant sent a letter to Pintor stating that his appeal did not comply with PERB
Regulation 32360 in that he did not provide a valid proof of service. 	Pintor was then provided
until February 27, 2016, to perfect his filing. On March 7, 2016, Pintor re-filed his appeal with
the requisite proof of service properly identifying the District’s designated representative. By
administrative determination dated March 14, 2016, Pintor was informed that his appeal was
untimely under PERB regulations. As explained in the administrative determination, the
appeal of the dismissal was due by February 29, 2016.
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Pintor filed his appeal on March 7,
2016, seven days later. On March 23, 2016, Pintor filed a timely appeal of the administrative
determination.
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DISCUSSION
PERB Regulation 32635 governs review of dismissals. Subdivision (a) states in
pertinent part:
Within 20 days of the date of service of a dismissal, the charging
party may appeal the dismissal to the Board itself. The original
appeal and five copies shall be filed in writing with the Board
itself in the headquarters office, and shall be signed by the
charging party or its agent. Service and proof of service of the
appeal on the respondent pursuant to Section 32140 are required
On February 1, 2016, the Office of the General Counsel issued Pintor a dismissal letter
after determining that the charge did not state a prima facie case. On February 16, 2016, Pintor
Review of the proof of service attached to Pintor’s February 16, 2016 appeal shows
that Pintor served Richard L. Martinez, Pomona Unified School Superintendent. However, the
District had previously filed and properly served a Notice of Appearance Form on May 26,
2015, identifying attorneys James K. Ayden and Howard F. Friedman from the firm Fagen
Friedman & Fulfrost, LLP as the District’s designated representatives.
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The due date provided in the administrative determination of February 29, 2016,
differs from the date provided in the February 22, 2016, letter in that it appears to take into
account the fact that the original due date of February 27, 2016, fell on a Saturday.
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filed an appeal. The appeal was timely filed, however, it failed to conform to PERB
Regulations by including a valid proof of service showing that the District’s designated
representative had been served. On February 22, 2016, the Appeals Assistant provided Pintor
until February 27, 2016, to perfect his filing.
PERB Regulation 32130 governs the computation of time for filings. Subdivision (a)
states that the period of time begins to run the day after the act or occurrence referenced.
Subdivision (b) states that:
Whenever the last date to file a document falls on Saturday,
Sunday, or a holiday, as defined in Government Code Sections
6700 and 6701, or PERB offices are closed, the time period for
filing shall be extended to and include the next regular PERB
business day. The extension of time provided herein shall be
applied subsequent to the application of any other extension of
time provided by these regulations or by other applicable law.
Subdivision (c) provides a five-day extension to file a response to documents that are served by
mail.
February 27, 2016, the due date provided by the Appeals Assistant in the letter dated
February 22, 2016, fell on a Saturday. In addition, the letter was sent by US Postal Service.
Therefore, pursuant to PERB Regulation 32130, subdivision (c), he should have been provided
an additional five days in which to file his appeal. Including the additional five-day extension,
Pintor had until March 5, 2016 to file his appeal. Since March 5, 2016 fell on a Saturday,
Pintor actually had until Monday, March 7, 2016 to file his appeal. Pintor mailed his proof of
service on March 4, 2016 and it was received by PERB on March 7, 2016. We therefore
conclude that on March 7, 2016, Pintor timely submitted a perfected appeal.
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ORDER
The Public Employment Relations Board’s (Board) denial of Pablo Felix Pintor’s
(Pintor) appeal of the dismissal of his unfair practice charge in Case No. LA-CE-6023-E as
untimely is REVERSED and the matter is remanded to the Public Employment Relations
Board’s Appeals Assistant for further processing.
Members Winslow and Banks joined in this Decision.
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