State of California (Department of Motor Vehicles) (Petrella) (PERB 1139S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OLGA V. 	PETRELLA,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
MOTOR 	VEHICLES),
Respondent.
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) 	Case No. 	SF-CE-142-S
PERB Decision No. 	1139-S
February 21, 	1996
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Appearance: 	Olga V. 	Petrella, 	on her own behalf.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's
dismissal 	(attached) 	of 	an unfair practice 	charge 	filed by
Olga V. 	Petrella 	(Petrella). 	In her charge, 	Petrella alleged
that 	the 	State 	of 	California 	(Department 	of Motor Vehicles)
violated section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills Act)1
by denying her a 	retroactive pay 	increase 	and various 	other benefits.
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.

The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	Petrella's 	unfair practice 	charge, 	the warning and
dismissal 	letters 	and Petrella's 	appeal. 	The Board 	finds 	the
warning and dismissal 	letters 	to be 	free 	of prejudicial 	error2
and adopts 	them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CE-142-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia 	and Johnson 	joined 	in 	this 	Decision.
2The 	dismissal 	letter 	incorrectly notes 	the 	filing date 	of
Petrella's 	charge as October 20, 	1995. 	Prejudicial 	error does
not result, 	however, 	because the discussion in the warning letter
correctly reflects 	the actual 	September 29, 	1995 	filing date of
Petrella's 	unfair practice 	charge.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 27, 	1995
Olga V. 	Petrella
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	SF-CE-142-S, Olga V. 	Petrella v. 	State of
California 	(Department of Motor Vehicles)
Dear Ms. Petrella:
On October 20, 	1995, 	you filed an unfair practice charge alleging
the Department of Motor Vehicles violated the Ralph C. 	Dills Act
section 3519(a) 	by denying you a retroactive wage increase and
various other benefits.
I indicated to you, 	in my attached letter dated October 20, 	1995,
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
October 31, 	1995, 	the charge would be dismissed.
During a telephone conversation on October 27, 	1995, 	you
expressed your intention not 	to amend the above-referenced
charge, 	and indicated your intention to appeal if I dismissed
your charge after October 31, 	1995. 	You requested information
regarding the appeal process and indicated a preference to
proceed immediately. 	To further that end, 	I acknowledge that you
do not wish to amend by October 31, 	1995, 	and I am dismissing the
charge based on the facts and reasons 	contained in my October 20,
1995, letter.
Right 	to Appeal
Pursuant to Public Employment Relations Board 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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 	shall apply.
The Board's address is:

SF-CE-142-S
October 27, 	1995
Page 2
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
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. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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.
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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
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
Deputy General 	Counsel
By Tammy L. Samsel
Board Agent
Attachment

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
October 20, 	1995
Olga V. 	Petrella
Re: 	Unfair Practice Charge No. 	SF-CE-142-S, Olga V. 	Petrella v.
California State Employees Association
WARNING LETTER
Dear Ms. Petrella:
The above-referenced unfair practice charge alleges 	that 	the
Department of Motor Vehicles violated the Ralph C. 	Dills Act
(Dills Act or Act) 	section 3519(a) 	by denying you a retroactive
wage increase and various other benefits. 	My investigation
revealed the following facts.
In December of 1990, 	you were a Range B employee and completed
computer training. 	Approximately one month later your
supervisor, 	Ray Erilch, 	reassigned you from computer duties to
phone duties.
In September of 1992, 	you returned to work on the computer under
the direction of a new supervisor. 	You continued to work on the
computers until the date of your retirement on or about December
31, 	1994. 	Your charge alleges employees working with computer
training should be paid at the Range C level.
On April 21, 	1994, 	the Department of Motor Vehicles 	(DMV) 	issued
a Notice of 	Personal Action Report of Miscellaneous Change. 	The
report indicated,
"you have been paid less 	than eleven working days 	in
the 4/94 pay period . 	. 	. 	due to an unpaid absence.
Therefore the pay period does not qualify for credit
toward seniority, merit salary increases, 	sick leave
and vacation earnings, 	higher vacation earnings
category, and service awards."
On August 24, 	1994, 	the DMV corrected your balance and returned
56 hours of sick leave and 465 hours of vacation leave after
receiving approval 	from the 	PMSS/Worker's Compensation Unit.

SF-CE-142-S
October 20, 	1995
Page 2
Dills Act section 3514.5(a) 	provides the Public Employment
Relations Board shall not, 	"issue a complaint in respect of any
charge based upon an unfair practice occurring more 	than six
months prior to the filing of 	the charge." 	You filed this charge
on September 29, 	1995, 	and therefore PERB cannot issue a
complaint based on conduct prior to March 29, 	1995.
This charge does not allege any conduct by the DMV within the six
months' 	statute of limitations period. 	It appears from the
charge that you were denied your Range C increase either in
December of 1990, 	when you completed your computer training or in
September of 1992, 	when you actually began working on the
computer. 	Even assuming you should have been elevated to Range C
in 1992, 	rather than in 1990, 	the conduct falls several years
outside of the appropriate six-month period. 	The denial of any
credits due to your absence in April of 1994, 	also falls outside
of 	the appropriate six-month period.
In addition to the statute of 	limitations problem discussed
above, 	this charge also fails to describe a prima facie case of
discrimination by the Department of Motor Vehicles. 	To
demonstrate a discrimination violation of the Dills Act 	section
3519(a), 	the charging party must show that: 	(1) 	the employee
exercised rights under the Dills Act; 	(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 employees because of 	the exercise of
those rights. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210; 	Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89; Department of Developmental Services 	(1982) 	PERB
Decision No. 	228-S; 	California State University 	(Sacramento)
(1982) 	PERB Decision No. 211-H.)
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 additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and 	standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(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) 	any other facts which might demonstrate

SF-CE-142-S
October 20, 	1995
Page 3
the employer's unlawful motive. 	(Novato Unified School District.
supra; North Sacramento School District (19 82) PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of 	these factors and therefore does not state a prima facie
violation of Dills Act section 3519(a).
Your charge does not present any facts 	establishing that you had
been engaged in any activities protected under the Dills Act. 	In
fact, 	your letter to Marilyn Sardonis dated November 5, 	1994,
indicates your belief that 	the DMV's actions were prompted
because of your age, 	not because of any union affiliation or the
like.
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 which 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 be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal 	from you before October 31. 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Board Agent