Klamath-Trinity Joint Unified School District (PERB A238E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KLAMATH-TRINITY TEACHERS
ASSOCIATION, CTA/NEA
Charging Party, 	Case No. SF-CE-1473
v . 	Administrative Appeal
KLAMATH-TRINITY JOINT UNIFIED 	PERB Order No. Ad-238
SCHOOL DISTRICT,
Respondent .
January 29, 1993
Appearances: California Teachers Association, by Ramon E.
Romero, Attorney, for Klamath-Trinity Teachers Association,
CTA/NEA; Kronick, Moskovitz, Tiedemann & Girard by John L. Bukey,
Attorney, for Klamath-Trinity Joint Unified School District.
Before Hesse, Chairperson, Carlyle and Blair, Members.
DECISION
HESSE, Chairperson: 	This case is before the Public
Employment Relations Board (PERB or Board) on appeal by the
Klamath-Trinity Joint Unified School District (District) from the
PERB appeals assistant's rejection of the statement of exceptions
to the proposed decision of an administrative law judge as
untimely filed. The proposed decision was served by mail on the
parties, May 8, 1992. Under PERB Regulation section 32300' the
All dates in this proceeding refer to 1992.
2PERB regulations are codified at California Code of
Regulations, title 8, section 31001, et seq. Regulation section
32300 states, in pertinent part:
a) 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,

exceptions were due to be filed by the District on June 2.
By letter dated June 4, the PERB appeals assistant informed
the District that the exceptions were not timely filed but that
the decision was appealable to the Board itself. On June 15, the
District filed an appeal requesting that the late filing be
excused for good cause under regulation section 32136.'
The District enclosed a declaration of Carrie Laberdie, a
secretary to the leading attorney for the District. 	She states
that on June 2, 1992, she mailed a statement of exceptions to the
San Francisco PERB office in error because she habitually filed
documents with that office on a regular basis and did so this
time through force of habit. Secondly, she states that she
mailed it by first class mail because she failed to read the PERB
letter requiring that it be sent by certified mail or United
States Express mail, if sent on the deadline, in order to be
considered filed. Upon receiving a telephone call from the San
Francisco PERB office on June 4, she hand delivered the statement
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. Service and proof of
service of the statement and brief pursuant
to section 32140 are required.
Regulation section 32136 states:
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.
2

of exceptions to the Sacramento PERB Office on that day. 	The
declaration is uncontradicted and the Klamath-Trinity Teachers
Association, CTA/NEA (Association) received notice of the filing
of the exceptions in a timely manner.
DISCUSSION
PERB has on a number of occasions excused late filings for
purely clerical error where a reasonable excuse is provided and
the delay caused was brief and no prejudice resulted to any party
to the case (The Regents of the University of California (Davis,
Los Angeles, Santa Barbara and San Diego) (1989) PERB Order No.
Ad-202-H; North Orange County Regional Occupational Program
(1990) PERB Decision No. 807) .
In the instant case there is no reason to believe that the
filing errors were due to anything but inadvertance, the delay
was brief and no prejudice has been shown as a result.
Accordingly, we conclude that good cause exists for excusing the
late filing and the statement of exceptions will be accepted as
timely filed.
ORDER
The District's statement of exceptions in Case No. SF-CE-
1473 are ACCEPTED as timely filed. Pursuant to PERB Regulation
section 32310, the Association is hereby afforded 20 days from
service of this Decision to file a response to the District's
statement of exceptions.
Member Blair joined in this Decision.
Member Carlyle's dissent begins on page 4.

Carlyle, Member, dissenting: I respectfully dissent from
the majority's conclusion that the Klamath-Trinity Joint Unified
School District (District) has established good cause to excuse
its late filing. 	As set forth below, in my opinion, the
majority's decision conflicts with prior Public Employment
Relations Board (PERB or Board) decisions and substantially
weakens the good cause standard of PERB Regulation 32136' in
excusing the late filing of documents.
PERB regulations clearly state that in order for exceptions
to be considered timely filed, the document must be received by
the Board itself within 20 days' of service of the proposed
decision. 	Further, PERB Regulation 32135 states:
All documents shall be considered "filed"
when actually received by the appropriate
PERB office before the close of business on
PERB regulations are codified at California Code of
Regulations, title 8, section 31001 et seq. Regulation section
32136 states:
A late filing may be excused in the
discretion of the Board for good cause
only .
2Regulation section 32300 states, in pertinent part:
(a) 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. Service and proof of
service of the statement and brief pursuant
to section 32140 are required.
(Emphasis added. )
4

the last date set for filing or when sent by
telegraph or certified or Express United
States mail postmarked not later than the
last day set for filing and addressed to the
proper PERB office.
The majority relies on two Board cases in which late filings
were excused for purely clerical errors. In The Regents of the
University of California (Davis, Los Angeles, Santa Barbara and
San Diego) (1989) PERB Order No. Ad-202-H, the Board excused a
late filing based on an unrefuted declaration by the University's
attorney that it was the policy of his office to file documents
with PERB by certified mail. The attorney instructed his
secretary to mail the documents, but she inadvertently sent them
by regular mail on the last day set for filing rather than by
certified mail. The Board determined that good cause did exist
and excused the late filing.
In the other case cited by the majority, North Orange County
Regional Occupational Program (1990) PERB Decision No. 807, the
Board excused a late filing that was inadvertently sent to the
wrong PERB office. The Board based its decision on the
declaration of the secretary who mailed the document that she
routinely sent a large number of PERB filings to the Los Angeles
office. 	The Board held that the party had attempted to file in a
timely fashion and as the documents were mailed ten days prior to
the PERB deadline, albeit the wrong office, good cause was
established.
However, the Board has also determined instances where late
filings were not excused due to clerical errors. Two of these
cases are similar to the present case. In Los Angeles Community
5

College District (1991) PERB Decision No. 908, two problems
existed with the district's late filing: 1) PERB's address had
been incorrectly typed on the envelope, causing it to be
misdirected; and 2) the documents had been mailed by regular
first class mail from Los Angeles to Sacramento one day before
the filing deadline. On appeal, the district focused on the
envelope's typographical error, but failed to submit an
explanation for mailing its documents by regular first class
mail. The Board held that as no adequate explanation was
provided, good cause did not exist to excuse the late filing.
In Sonoma County Office of Education (1992) PERB Order
No. Ad-230 (Sonoma County) , a party mailed its statement of
exceptions and supporting brief by regular first class mail on
the last day set for filing and mailed them to the PERB San
Francisco Regional Office. On appeal, the party argued that it
was the error of a new secretary who was responsible for mailing
the documents to the wrong office. Further, it was argued that,
the secretary was not aware that the statement of exceptions was
required to be served on the PERB Headquarters Office. 	The Board
concluded that although the party had provided an explanation for
the misdirection of the documents, it failed to offer an adequate
explanation for its failure to timely file the appeal.
Therefore, the Board concluded that good cause did not exist to
excuse the late filing.
This case is almost identical to the facts presented in
Sonoma County. Here, the secretary misdirected the statement of
exceptions and accompanying documents to the San Francisco
6

Regional Office. The documents were also mailed by first class
mail on the last day set for filing. 	In an unrefuted
declaration, the secretary stated that she mailed the documents
to the wrong office because she regularly files documents with
that office. 	I would concur with the majority that good cause
may exist to excuse the filing in the wrong office.
However, as to the failure to mail the documents by
certified or Express United States mail on the deadline date,
good cause has not been established. In the secretary's
declaration she states:
I failed to read the letter from the
Sacramento P. E. R.B. office stating that the
Statement of Exceptions must, if sent on the
deadline, be sent via certified mail or
United States Express Mail to be considered
filed.
The consequences of a party failing to provide an adequate
explanation as to why documents were not timely filed or the
failure of a party to read a PERB letter outlining the procedure
to be used in timely filing documents is no different. In both
instances the parties failed to follow PERB regulations in filing
documents . 	Moreover, the secretary admitted in her declaration
that she was provided information from PERB explaining PERB
procedures on how to file appeals but that she simply did not
read it. Further, the secretary's law firm has appeared numerous
times before the Board and should be well acquainted with the
Board's procedures. 	The rules governing the filing of an appeal
to a proposed decision are "neither new, unsettled, nor complex."
(Calipatria Unified School District (1990) PERB Order
No. Ad-217.)
7

Additionally, as to the District's argument that no
prejudice resulted from the late filing in this case, the Board
has held that while lack of prejudice resulting from a late
filing is an important consideration in deciding whether to
excuse a late filing for good cause, it is not, in and of itself,
the determinative factor. (Id. at p. 13.)
Finally, I am concerned that the majority's ruling will now
provide parties with new fodder in their appeals of late filings.
Failure to read PERB correspondence should not be sufficient to
constitute good cause to excuse a late filing. I would find the
District has failed to demonstrate that good cause exists to
excuse the late filing.
8