State of California (Department of Food and Agriculture) (PERB 1290S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KOFI OPONG-MENSAH,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF 	FOOD AND AGRICULTURE),
Respondent.
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) 	Case No. 	SA-CE-1074-S
PERB Decision No. 	1290-S
October 	8, 	1998
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Appearance: 	Kofi Opong-Mensah, 	on his own behalf.
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Kofi 	Opong-Mensah
(Opong-Mensah) 	of a Board agent's dismissal 	(attached) 	of his
unfair practice charge. 	In the charge, 	Opong-Mensah alleged that
the 	State 	of 	California 	(Department 	of 	Food and Agriculture)
violated section 3519 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
denying his 	requests 	for 	information, 	and by discriminating
against 	him 	for his 	participation 	in protected activity.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
Board 	agent's 	warning 	and 	dismissal 	letters 	and Opong-Mensah's
appeal. 	The Board 	finds 	the warning and dismissal 	letters 	to be
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq.
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free 	of prejudicial 	error and adopts 	them as 	the 	decision of 	the
Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-1074-S 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Jackson 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
July 16, 	1998
Kofi 	Opong-Mensah
Re: 	Kofi Oponq-Mensah v. 	State 	of 	California 	(Department 	of 	Food
and 	Agriculture)
Unfair Practice 	Charge No. 	SA-CE-1074-S
DISMISSAL 	LETTER
Dear Mr. 	Opong-Mensah:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on January 13, 	1998. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Department 	of 	Food
and Agriculture) 	violated the Ralph C. 	Dills Act, 	Government 	Code
section 3519, 	by denying your 	requests 	for 	information.
I 	indicated to you, 	in my attached letter dated May 11, 	1998,
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
May 19, 	1998, 	the charge would be dismissed.
At your request, 	the 	charge was 	placed in abeyance 	on May 26,
1998. 	I met with you on June 	30, 	1998, 	to discuss 	the 	status of
this charge. 	On July 1, 	1998, 	the charge was withdrawn from
abeyance 	and you were 	notified 	that 	you 	should 	file 	an 	amended
charge by July 14, 	1998. 	On July 13, 	1998, 	I received an amended
charge.
The 	amended 	charge 	does 	not 	respond 	to 	the 	determination 	in 	the
attached warning 	letter 	that 	the 	Department's 	alleged 	failure 	to
provide 	you with 	requested 	information 	fails 	to 	state 	a prima
facie 	case. 	Accordingly, 	for 	the 	reasons 	stated in the warning
letter, 	the 	allegation concerning the 	Department's 	failure 	or
refusal 	to provide 	requested 	information 	is 	dismissed.
The amended charge does, 	however, 	allege 	for the 	first 	time 	that
the 	Department 	discriminated 	against 	you 	for participating 	in

SA-CE-1074-S
Dismissal 	Letter
Page 2
protected activity. 	On July 15, 	1998, 	we discussed the
allegations 	in 	this 	charge. 	You 	contend that 	the 	Department
wrongly 	terminated your 	employment 	in April 	1996 	based on 	a
charge 	that 	you were 	absent 	without 	leave. 	You 	further 	allege
that 	the 	Department 	falsely 	accused you 	of 	certain 	incidents
which occurred prior to your dismissal, 	such as, 	accusing you of
placing chemicals 	in a 	rest 	room at 	your work place, 	improperly
storing 	frozen 	samples 	and 	improperly shipping 	items 	to 	other
labs. 	You assert 	that 	the 	Department 	terminated your 	employment
and made 	false 	accusations 	against 	you 	in 	retaliation 	for your
attendance 	at 	union meetings 	held at 	your worksite.
Based on 	the 	facts 	stated above your 	charge 	fails 	to 	state 	a
prima 	facie violation of 	the Dills Act.
Dills Act section 3514.5 (a) 	states that PERB 	"shall not 	. 	. 	.
issue 	a 	complaint 	in 	respect 	of 	any charge 	based upon 	an 	alleged
unfair practice 	occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge."
PERB 	has 	held 	that 	the 	six month 	statutory 	limitations 	period
begins 	to 	run when 	the 	charging party knew or 	should have 	known
of 	the 	conduct 	giving rise 	to 	the 	alleged unfair practice.
(Regents 	of 	the University of 	California 	(1983) 	PERB Decision
No. 	359-H.) 	The amended charge was 	filed on July 13, 	1998,
alleging 	for 	the 	first 	time 	that 	the 	Department 	discriminated
against 	you 	for 	engaging 	in protected conduct. 	The 	statute 	of
limitations 	period 	for this 	allegation began 	to 	run 	on
January 13, 	1998. 	Accordingly, 	only alleged unfair practices
which occurred on or after January 	13, 	1998 	are 	timely 	filed.
Your 	charge 	alleges 	that 	the 	Department 	discriminated 	against 	you
by terminating your employment 	in April 	1996. 	This 	action by the
Department 	is 	well 	outside 	the 	statutory 	limitations 	period and,
thus, 	is untimely filed. 	Accordingly, 	PERB is without
jurisdiction 	to 	consider 	this 	allegation 	and your 	charge 	must 	be
dismissed.
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

SA-CE-1074-S
Dismissal 	Letter
Page 3
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:
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.)

SA-CE-1074-S
Dismissal 	Letter
Page 4
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
Robin E. Wright
Regional 	Attorney
Attachment
cc: 	Warren C. 	Stracener

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 11, 	1998
Kofi 	Opong-Mensah
Re: 	Kofi Opong-Mensah v. 	State 	of 	California 	(Department 	of 	Food
and 	Agriculture)
Unfair Practice 	Charge No. 	SA-CE-1074-S
WARNING 	LETTER
Dear Mr. 	Opong-Mensah:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on January 13, 	1998. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Department 	of 	Food
and Agriculture) 	violated the Ralph C. 	Dills Act, 	Government 	Code
section 3519, 	by denying your 	requests 	for 	information.
Investigation 	of 	the 	charge 	revealed 	the 	following 	information.
You were 	employed by the 	Department 	of 	Food and Agriculture 	as 	an
Agricultural 	Chemist 	II. 	In April 	1996, 	you were notified that
you 	had been 	separated 	from your 	employment 	based 	on 	a 	charge
that you were 	absent without 	leave. 	Your charge 	states:
Employer 	(Calif. 	Dept. 	of Food & Agriculture/Dept.
of 	Personnel Administration) 	has 	consistently
denied me 	access 	to documents 	(and falsified
records) 	that would assist me 	in my defense
against 	wrongful 	termination under the 	guise 	of
absent without 	leave 	(AWOL).
Attached 	to your 	charge 	is 	a 	list 	of 	documents 	you 	requested that
the 	department 	provide 	to you 	and the 	date you 	requested 	these
documents. 	You made 	approximately 	13 	requests 	for 	information
beginning on July 1, 	1996 	and continuing to January 2, 	1998. 	You
indicate 	that 	the 	department 	provided 	a very limited 	amount 	of
information 	in 	response 	to your requests. 	You allege 	that 	for
the 	most 	part 	your 	requests were 	denied or you 	did not 	receive 	a
response.
Based on 	the 	facts 	stated above your 	charge 	fails 	to 	demonstrate
a prima 	facie 	violation of 	the 	Dills Act 	by 	failing 	to provide
you 	with 	requested 	information.
Dills Act section 3514.5(a) 	states that PERB 	"shall not 	. 	. 	.
issue 	a 	complaint 	in 	respect 	of 	any 	charge 	based upon 	an 	alleged

SA-CE-1074-S
Warning 	Letter
Page 2
unfair practice 	occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge."
PERB 	has 	held 	that 	the 	six month 	statutory 	limitations 	period
begins 	to 	run when 	the 	charging party knew or 	should have 	known
of 	the 	conduct 	giving 	rise 	to 	the 	alleged unfair practice.
(Regents 	of 	the University of 	California 	(1983) 	PERB Decision
No. 	359-H.) 	Your charge was 	filed with PERB on January 13, 	1998.
Therefore, 	the 	statute 	of 	limitations period began to 	run on
July 13, 	1997. 	Accordingly, 	only alleged unfair practices which
occurred on or after July 13, 	1997 	are 	timely filed.
Your 	charge 	alleges 	that 	several 	of 	your 	information 	requests
were made prior to July 13, 	1997. 	Those 	requests 	that were
denied by the 	department prior to 	July 	13, 	1997 	are 	outside 	the
statutory limitations period and, 	thus, 	are untimely filed.
Several 	of your 	information 	requests 	to 	the 	department 	appear 	to
be 	timely filed. 	Concerning these 	allegations, 	PERB has 	held
that 	an employer has 	an obligation to provide 	to 	the 	exclusive
representative 	all 	information 	that 	is 	necessary and 	relevant 	to
collective 	bargaining 	and 	administration 	of 	the 	contract,
including grievance 	processing. 	(Stockton Unified 	School
District 	(1980) 	PERB Decision No. 	143.) 	However, 	under the Dills
Act, 	an employer's 	duty to provide 	information does 	not 	extend to
individual 	employee 	requests. 	(Regents 	of 	the University of
California 	(1996) 	PERB Decision No. 	1148-H.)1 Therefore, 	the
State 	does not 	violate 	the 	Dills Act 	when 	it 	denies 	information
requested by individual 	employees.2 Accordingly, 	this
allegation 	fails 	to 	state 	a prima 	facie 	case 	and must 	be
dismissed.
Based on 	the 	facts you provided and the 	above 	discussion, 	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
1Although this 	case 	arises 	under 	the 	Higher Education
Employer-Employee Relations Act, 	the Dills Act 	imposes 	a 	similar
duty on 	the 	State 	employer 	to meet 	and 	confer 	in good 	faith with
the exclusive representative. 	This rule 	is, 	therefore, 	equally
applicable under 	the 	Dills Act.
2This 	letter 	addresses 	only the 	State's 	obligations 	to
provide 	information under the Dills Act. 	PERB 	is without
jurisdiction 	to 	enforce 	other 	statutory 	rights 	or 	obligations
arising under other 	information request 	statutes, 	such as 	the
California 	Public 	Records Act 	or the 	Freedom of 	Information Act.
i

SA-CE-1074-S
Warning 	Letter
Page 3
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 amended charge 	or withdrawal
from you before May 19, 	1998, 	I 	shall dismiss your charge. 	If
you have any questions, 	please call me at 	(916) 	322-3198,
ext. 3 05.
Sincerely
Robin E. 	Wright
Regional 	Attorney