California State University (Statewide University Police Association) (PERB A192H)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Charging
	Party,
v.
TRUSTEES
	OF 	THE
	CALIFORNIA 	STATE
UNIVERSITY,
Respondent.
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Case
	Nos.
	S-CE-32-H
S-CE-33-H
Administrative
	Appeal
PERB
	Order
	No. 	Ad-192-H
September 	11, 	1989
Appearances: 	Mastagni,
	Holstedt	
&	
Chiurazzi
	by
	Mark
	R.
	Kruger,
Attorney,
	for 	the
	Statewide
	University 	Police Association;
William
	B.
	Haughton,
	Attorney,
	for
	the 	Trustees 	of 	the
	California
State
	University.
Before
	Porter,
	Shank, 	and
	Camilli,
	Members.
DECISION
SHANK,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the 	Trustees
	of
	the
California 	State
	University
	(CSU)
	from
	the
	rejection
	by
	the
Appeals
	Assistant 	to 	the
	Board
	of
	its
	exceptions
	and
	supporting
brief 	to 	the 	administrative
	law
	judge
1 s 	(ALJ)
	proposed
	decision.
The
	Appeals
	Assistant 	rejected
	CSU 1 s
	exceptions
	and
	supporting
brief
	as 	untimely
	filed.
FACTS
On
	July
	24, 	1987,
	the 	Statewide 	University 	Police
Association
	(SUPA)
	filed
	an
	unfair 	practice
	charge 	with 	the
	PERB
Sacramento 	Regional 	Office 	against
	CSU
	alleging 	violations 	of
Government 	Code
	sections 	3571(a), 	(b) 	and 	(d) 	of 	the 	Higher

Education
	Employer-Employee
	Relations
	Act
	(HEERA). 1
The
	PERB
General
	Counsel
	issued
	a
	complaint
	alleging 	violations
	of
	section
3571(a)
	and
	(b).
	(Case
	No.
	S-CE-32-H.)
·
On
	February
	16,
	1988,
	SUPA
	filed
	a
	Motion
	to
	Amend
	the
Complaint
	which
	was
	denied
	by
	the
	ALJ
	and 	remanded
	to
	the
	PERB
General
	Counsel
	for
	a
	determination
	as
	to
	whether
	the
	facts
contained
	therein 	constituted
	a
	prima
	facie
	case 	of
discrimination.
	The
	ALJ
	ordered
	that
	the
	proposed
	amendment
constituted
	a 	new
	charge
	which
	became
	Case
	No.
	S-CE-33-H.
	The
charge
	alleged
	violations
	of 	the
	same
	sections
	contained
	in
	the
original
	charge.
The
	cases
	were
	consolidated
	and
	a
	hearing
	was
	held.
	A
proposed
	decision
	was
	issued
	by
	the
	ALJ
	on
	June 	2, 	1989.
Exceptions
	to 	the
	proposed
	decision
	were 	due
	June
	22, 	1989.
2
Subsequently,
	CSU
	requested
	an
	extension 	of
	time
	on
	June 	16,
1
HEERA
	is
	codified
	at
	Government
	Code
	section
	3560
	et
	seq.
Unless 	otherwise
	indicated,
	all
	statutory
	references 	are
	to
	the
Government
	Code.
	Section
	3571
	states 	in 	pertinent 	part:
It
	shall
	be
	unlawful
	for 	the 	higher 	education
employer
	to:
(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.
(b) 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this
	chapter.
2PERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8, 	section
	31001
	et
	seq.
	PERB
	Regulation
	32300
provides 	that
	a
	party
	may
	file
	exceptions 	to
	a
	proposed 	decision
within
	20
	days 	following 	the 	date 	of 	service 	of 	the 	decision.
2

1989,	
in	
which
	to
	file
	exceptions
	to
	the 	decision.
	The
	request
for
	the
	extension
	was
	granted
	until
	July
	5,
	1989.
The
	exceptions
	were
	received
	by
	the
	PERB
	Sacramento
headquarters
	office
	on
	July
	7, 	1989,
	in
	a
	certified-mail
	envelope
postmarked
	July
	6,
	1989.
	On
	July
	10, 	1989,
	the
	Appeals
	Assistant
to 	the
	Board
	rejected
	the
	exceptions
	as 	untimely
	filed,
	since
	it
was
	one
	day
	late
	by
	reason 	of 	the
	postmark.
CSU
	timely 	appealed
	the
	Appeals
	Assistant's 	rejection.
	The
appeal
	is
	based,
	among
	other 	things,
	on
	unforeseeable
inadvertence
	and
	excusable
	error
	by 	CSU's
	mailroom 	employees
	in
date-setting
	CSU's
	postage 	meter.
In
	an
	unrefuted
	affidavit
	submitted
	in
	support 	of 	the
appeal,
	CSU's
	legal 	secretary
	states 	that,
	on
	July
	5, 	1989,
	she
typed,
	reproduced,
	and
	placed 	the
	original
	and
	five
	copies 	of
CSU's
	Statement 	of 	Exceptions
	to 	the
	Proposed
	Decision 	of
	the
	ALJ
and
	Brief 	in
	Support
	thereof, 	in
	PERB
	Case
	Nos. 	S-CE-32-H
	and
S-CE-33-H	
in	
a
	sealed
	envelope 	addressed 	as 	follows:
CERTIFIED 	MAILRETURN
	RECEIPT 	REQUESTED
Members
	of 	the
	Board
Public
	Employment
	Relations
	Board
1031
	18th
	Street,
	Suite
	102
Sacramento,
	California
	95814-4174
ATTENTION:
	Dennis
	Batchelder,Executive 	Director
The
	affidavit 	further 	states 	that
	on
	that
	same
	day, 	CSU's
legal 	secretary 	obtained 	metered postage
	from 	CSU's 	mailroom
	in
	a
sufficient
	amount
	to 	mail 	the 	above-described 	documents 	by
3

certified
	mail,
	completed
	the
	receipt
	for
	certified
	mail,
	affixed
the
	metered
	postage
	and
	deposited 	the
	envelope
	in
	the
	United
States
	Mail,
	and
	mailed
	a
	copy
	of
	the
	documents
	to
	SUPA's
counsel.
	The
	affidavit 	states 	that
	the
	postage
	meter
	was
incorrectly 	set
	by 	one
	of
	the
	mailroom 	employees
	to
	read
	July
	6,
1989,
	and
	that
	CSU's
	legal 	secretary
	assumed
	the 	date
	on
	the
metered 	postage
	was
	July
	5, 	1989,
	and
	did
	not
	notice 	the
	error.
DISCUSSION
PERB
	Regulation
	32136
	states
	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.
In
	Gibson 	v.
	Unemployment
	Insurance
	Appeals 	Board 	(1973)
	9
Cal.3d
	494,
	108
	Cal.Rptr.
	1, 	509, 	an
	attorney
	filed
	an
	appeal
three
	days
	late
	on
	behalf
	of
	an
	applicant.
	Though
	both
	the
statute
	and
	the 	board's
	own
	rule
	permitted 	extension 	of
	the
	time
period 	for
	"good
	cause"
	the
	Board
	relied
	on
	a
	narrow
	and
	rigid
rule 	that
	no
	error
	of
	an
	applicant 	or 	his
	counsel,
	no
	matter
	how
reasonable 	or
	excusable, 	could
	constitute
	''good
	cause."
	The
California
	Supreme
	Court 	held
	that
	it
	was
	reversible 	error 	for
	an
agency
	to 	automatically
	and
	mechanically
	reject 	late-filed
appeals 	without 	regard
	to,
	among
	other 	things, 	the 	excusability
of 	the 	error.
	The 	Supreme
	Court
	in 	rejecting 	the
	narrow
construction 	of 	the 	Board's 	rule 	stated 	in 	part:
We
	perceive
	no
	justification 	for
	an
administrative 	construction 	of 	section
	1328
to 	preclude
	relief 	in 	cases 	of 	brief,nonprejudicial 	delay 	arising
	from 	excusable
error 	of 	counsel. 
4

This 	statement 	is 	consistent 	with 	the 	general 	policy 	of 	law which
favors 	the 	preservation 	of 	the 	rights 	of 	appeal 	and 	the 	hearing
of 	appeals 	on 	their 	merits. 	(City 	of 	Santa 	Barbara 	v. 	California
Coastal 	Zone 	Conservation Commission 	(1977) 	75 	Cal.App.3d 	572;
Pesce 	v. 	Department 	Alcoholic 	Beverage 	Control 	(1958) 	51 	C.2d
310. )
In 	the 	instant 	case, 	had 	the 	legal 	secretary 	noticed 	the
error 	in 	the 	mailroom, 	CSU's 	exceptions 	would 	have 	been 	timely
filed. 	Considering 	the 	appeal 	on 	its 	merits, 3 the 	declaration 	of
the 	legal 	secretary 	is 	unrefuted 	and 	the 	explanation 	of 	what
occurred 	is 	not 	so 	unreasonable 	as 	to 	seem 	unbelievable. 	SUPA
has 	not 	indicated 	any 	actual 	prejudice 	resulting 	from 	a 	delay 	of
one 	day 	in 	filing. 	Accordingly, 	we 	conclude 	that 	good 	cause
exists 	for 	excusing 	the 	late 	filing 	and 	we 	accept 	CSU 1 s
exceptions 	as 	timely 	filed.
ORDER
California 	State 	University 1 s 	"Statement 	of 	Exceptions 	to
the 	ALJ's 	Proposed 	Decision" 	and 	"Respondent 1 s 	Brief 	in 	Support
of 	Exceptions 	to 	ALJ 1 s 	Proposed 	Decision" 	are 	ACCEPTED 	as 	timely
filed. 	Statewide 	University 	Police Association 	is 	hereby
afforded 	the 	opportunity 	to 	respond 	to 	the 	exceptions 	within
twenty 	days 	after 	service 	of 	this 	Decision.
Members 	Porter 	and 	Camilli 	joined 	in 	this 	Decision.
3See 	generally, 	Chula 	Vista 	City 	School 	District 	(1978) 	PERB
Order 	No. 	Ad-29.
5