North Orange County Regional Occupational Program (PERB 0807E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NORTH 	ORANGE 	COUNTY 	REGIONAL
OCCUPATIONAL 	PROGRAM,
Employer,
and
REGIONAL 	OCCUPATIONAL 	PROGRAM 	OF
NORTH 	ORANGE 	COUNTY CTA/NEA,
Employee 	Organization.
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) 	Case No . 	LA-R-943
PERB Decision No. 	807
May- 15, 	1990
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Appearance: 	Parker and Covert by Val R. 	Fadely, 	Attorney, 	for
North 	Orange 	County 	Regional 	Occupational 	Program.
Before Craib, 	Shank and Cunningham, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on a request 	from the North
Orange County Regional Occupational 	Program 	(NOCROP) 	to 	excuse
the 	late 	filing of 	its 	exceptions 	to 	a 	Board agent's 	proposed
decision. 	NOCROP's 	exceptions were 	not timely 	filed 	in the
headquarters 	office 	as 	required by PERB 	Regulation 	32300.1
1PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq. 	Regulation 32300,
subdivision 	(a) 	states, 	in pertinent part:
A party 	may 	file with 	the 	Board 	itself 	an
original 	and five 	copies 	of 	a 	statement of
exceptions 	to a Board agent's proposed
decision 	issued pursuant 	to 	section 	32215,
and 	supporting brief, 	within 20 days
following the date 	of 	service of 	the decision
or as provided in 	section 	32310. 	The
statement of 	exceptions 	and briefs 	shall 	be
filed with 	the 	Board 	itself 	in the
headquarters office. 	. 	. 	.
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However, 	they were 	filed within the 	appropriate 	time period 	in
PERB's 	Los Angeles 	Regional Office.
On January 30, 	1990, 	the parties were 	served with the Board
agent's proposed decision which held that: 	(1) 	NOCROP 	is 	a public
school 	employer within the meaning of 	EERA 	section 	3540.1,
subdivision 	(k); 	and 	(2) 	a unit consisting of all full-time and
part-time 	certificated 	employees 	is 	appropriate. 	In accordance
with Regulation 32300, 	exceptions were due 	in the headquarters
office 20 days thereafter, 	which, 	with the appropriate extensions
due to 	service by mail 	and a weekend 	filing deadline, 	was Monday,
February 26, 	1990.
On February 	16, 	1990, 	NOCROP 	sent by certified mail 	its
statement 	of 	exceptions 	and request 	for oral 	argument 	to 	the 	PERB
Los Angeles 	Regional Office. 	The proof 	of 	service reflects
service 	on the 	opposing party, 	the Regional 	Occupational 	Program
Educational Association of North Orange County CTA/NEA 	(CTA).
The 	regional 	office 	forwarded the 	exceptions 	to 	the 	Board's
headquarters 	office 	in Sacramento 	some time after March 	5, 	1990,
the date 	on which the Board's 	appeals 	assistant was 	informed by
telephone 	that 	the 	exceptions 	had been filed 	in Los Angeles.
After 	receiving 	notice 	that 	the 	proposed 	decision had 	become
final, 	NOCROP 	sent a copy of 	its 	exceptions 	to the headquarters
office with 	a 	letter 	asking 	that 	the 	Board 	accept 	the 	late
filing.
NOCROP 	asserts 	that 	its 	technically 	late 	filing 	should 	be
excused, 	as 	it was 	due to an inadvertent 	clerical 	error which did
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not prejudice CTA. 	NOCROP provided the declaration of 	a
secretary 	from its 	attorney's 	law firm, 	in which 	she 	explains 	the
filing error. 	She 	states 	that 	she 	submits 	a 	large volume of
filings with PERB, 	usually with the Los Angeles office, 	and,
although 	she has 	previously 	filed documents 	with 	the 	headquarters
office, 	this time, 	through force of habit, 	she inadvertently
filed the 	exceptions with the 	Los Angeles 	office. 	Also provided
was 	a declaration of 	the 	attorney assigned to the case,
describing 	the 	circumstances 	surrounding 	the 	late 	filing.
DISCUSSION
In 	support 	of 	its 	request 	that 	the Board accept 	the 	late
filing, 	NOCROP cites 	the 	general 	rule 	in California 	in favor of
preserving the right to appeal 	(see discussion, 	infra) 	and an
early Board decision, 	Chula Vista City School 	District 	(1978)
PERB Order No. 	Ad-29. 	In Chula Vista, 	the Board excused a 	late
filing where 	a 	temporary 	secretary 	apparently misunderstood
instructions 	to deliver exceptions 	to 	the Los Angeles 	Regional
Office.2
2The 	attorney's 	normal practice was 	to mail 	exceptions 	to
the 	Sacramento 	office 	and deliver them to 	the 	Los 	Angeles 	office
on or before 	the 	last day for 	filing. 	At that time, 	the Board
had 	an administrative practice 	of 	accepting 	exceptions 	timely
filed 	in the 	regional 	offices 	(due to the 	extremely 	short time
period 	for 	filing 	exceptions 	that 	then 	existed 	(seven 	calendar
days)). 	Also at that time, 	the Board's regulations did not
specify a 	standard 	for excusing 	late 	filings. 	Shortly
thereafter, 	the Board adopted 	a 	regulation providing 	for an
"extraordinary circumstances" 	standard, 	which was 	recently
amended to provide for a 	"good cause" 	standard. 	(See Reg. 	32136,
discussed infra. 	at p. 	4.)
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Regulation 	32136 provides 	that:
A 	late 	filing 	may be 	excused 	in the
discretion of 	the Board 	for 	good 	cause only.
A 	late 	filing which 	has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
(Amended, 	effective January 28, 	1989.) 	Although most of the
Board's 	prior decisions 	were 	decided under 	the previous
"extraordinary circumstances" 	standard, 	the Board has 	recently
decided two 	cases 	under 	the new 	"good 	cause" 	standard which 	are
instructive.
In Trustees 	of the California 	State 	University 	(1989) 	PERB
Order No. 	Ad-192-H, 	the Board excused a 	late 	filing where
exceptions 	were 	actually 	sent 	by 	certified mail 	on 	the 	last 	day
for filing, 	but, 	due to an error in the mailroom, 	the postage
meter was 	incorrectly set 	for the following day; 	therefore, 	the
postmark reflected 	that 	the 	filing was 	untimely. 	The 	Board 	found
the 	supporting declarations 	to be 	believable 	and 	found 	no
indication of prejudice to the opposing party. 	In determining
whether to 	excuse 	the 	late 	filing, 	the Board 	first 	relied on the
case of Gibson v. 	Unemployment 	Insurance Appeals 	Board 	(1973)
9 Cal.3d 494, 	108 Cal.Rptr. 	1, 	in which the California Supreme
Court 	held 	that 	it was 	improper 	for 	an agency to 	automatically
and 	mechanically 	reject 	late-filed 	appeals 	without 	regard 	to 	the
excusability of 	the 	late 	filing. 	The 	Board 	then noted that 	the
court's 	holding was 	consistent with 	the 	general 	policy 	in
California 	of 	favoring the preservation of 	appeal 	rights 	and 	the
hearing of appeals 	on their merits. 	(See City of 	Santa 	Barbara
v. 	California Coastal 	Zone Conservation Commission 	(1977)
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75 Cal.App.3d 572; 	Pesce v. 	Department of Alcoholic Beverage
Control 	(1958) 	51 Cal.2d 310.)
In The Regents 	of the University of California 	(1989) 	PERB
Order No. 	Ad-202-H, 	the Board excused a 	late filing where the
document was 	inadvertently 	sent by 	regular mail 	on the 	last 	day
for 	filing, 	rather than by certified mail, 	which was 	the 	normal
practice 	of 	the party. 	The 	Board 	emphasized that 	the unrefuted
explanation 	for 	the 	late 	filing was 	plausible 	and 	that 	there was
no prejudice 	to 	the 	opposing party.
Consistent with the 	results 	in Trustees 	of 	the California
State University, 	supra. 	PERB Order No. 	Ad-192-H and The Regents
of the University of California, 	supra, 	PERB Order No. 	Ad-202-H,
we 	find that 	the 	late 	filing 	should be 	excused 	in this 	case 	as
well. 	In each of the three cases, 	a party attempted to 	file 	in a
timely fashion but, 	due to an inadvertent error, 	the mechanics of
the 	filing went awry. 	In the 	instant case, 	there 	is 	no reason to
believe 	that 	the 	filing 	error was 	due 	to 	anything 	other 	than 	an
honest mistake. 	While 	it 	is 	the responsibility of 	the parties 	to
see that documents 	are 	filed 	in the proper office 	in accordance
with the Board's regulations, 	we are nonetheless mindful that, 	in
this 	case, 	the exceptions were received well before 	the 	filing
deadline, 	albeit in the wrong office. 	Finally, 	since CTA was
served with the 	exceptions 	before the 	filing deadline, 	there 	is
no 	indication of 	any prejudice due 	to 	the 	filing 	error.
Therefore, 	we 	find good cause 	for excusing the 	late 	filing.
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ORDER
Good cause having been 	shown, 	the 	late 	filing 	is 	EXCUSED and
the 	exceptions 	are ACCEPTED 	as 	timely 	filed pursuant 	to
Regulation 	32136. 	Consistent with Regulation 	32310,3 CTA 	shall
have 	20 	days 	from 	service of this decision in which to 	file 	a
response 	to NOCROP's 	exceptions 	to 	the proposed decision.4
Members 	Shank 	and Cunningham 	joined 	in this 	Decision.
3Regulation 32 310 provides, 	in pertinent part:
Within 20 	days 	following the date of 	service
of the 	statement of 	exceptions, 	any party may
file with the 	Board 	itself 	an original 	and
five copies of 	a 	response to the 	statement of
exceptions 	and a 	supporting brief. 	The
response 	shall 	be 	filed with 	the 	Board 	itself
in the headquarters office. 	. 	. 	.
4North 	Orange 	County 	Regional 	Occupational 	Program 	(1990)
PERB Decision No. 	HO-R-123 	is hereby vacated.
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