San Diego Community College District (PERB A311E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Employer,
and
SAN DIEGO ADULT EDUCATORS CHAPTER
OF LOCAL 4289, CFT, AFT, AFL-CIO,
and
AMERICAN FEDERATION OF TEACHERS
GUILD, LOCAL 1931, CFT, AFT, AFL-CIO,
Exclusive Representatives.
Case No. LA-UM-649-E
Administrative Appeal
PERB Order No. Ad-311
November 28, 2001
Appearances: Liebert Cassidy Whitmore by Bruce A. Barsook, Attorney, for San Diego
Community College District; Gattey Cooney & Baranic LLP by James M. Gattey, Attorney,
for San Diego Adult Educators Chapter of Local 4289, CFT, AFT, AFL-CIO and American
Federation of Teachers Guild, Local 1931, CFT, AFT, AFL-CIO.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the San Diego Community College District (District) from the appeals
assistant's denial of the District's request for judicial review as untimely filed.
On June 15, 20011 the Board issued San Diego Community College District (2001)
PERB Decision No. 1445 (San Diego) granting a unit modification petition jointly filed by the
1 All dates refer to 2001.

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San Diego Adult Educators Chapter of Local 4289, CFT, AFT, AFL-CIO (SDAE) and the
American Federation of Teachers Guild, Local 1931, CFT, AFT, AFL-CIO (Guild). On
July 10 the District filed its request for judicial review of San Diego. Although the District's
request was filed within the timelines set forth in PERB Regulation 32500(a)2, the request was
filed in the San Francisco regional office, instead of the Sacramento headquarters office. The
District claims the request was filed with the San Francisco regional office by mistake. The
request was routed to Sacramento, but was not received until July 16, six days late.
In addition to the administrative appeal from untimely filing, the District also requests
the Board stay its decision in San Diego.
In a jointly filed responsive paper opposing the District's request to excuse the late
filing and opposing the District's request for a stay, the SDAE and the Guild request that the
Board clarify the effective date of San Diego and clarify which exclusive representative
represents the affected unit members.
DISTRICT’S REQUEST TO EXCUSE LATE FILING
The District's brief was mailed via U.S. Express Mail on July 10 (the document due
date) to the San Francisco regional office instead of to the Sacramento headquarters office,
thus it was treated under PERB Regulation 32500(a) as untimely.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32500(a) provides:
(a) Any party to a decision in a representation case by the Board
itself, except for decisions rendered pursuant to Chapter 5,
Subchapter 1 of these Regulations, may file a request to seek
judicial review within 20 days following the date of service of the
decision. An original and five copies of the request shall be filed
with the Board itself in the headquarters office and shall include
statements setting forth those factors upon which the party asserts
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The District's instant appeal states that the document was mailed to the San Francisco
regional office by mistake and seeks excuse of the late filing based on a secretarial error. A
secretary of the District's law firm was asked to assist with the preparation and service of the
District's request for judicial review. The secretary looked in the underlying casefile and found
the last correspondence from PERB, a letter from Jerilyn Gelt (Gelt) dated June 27. She
mailed the request for judicial review to Gelt's address, the Board's San Francisco regional
office, as she mistakenly thought the June 27 letter reflected the address to which she was to
send the request for judicial review. The District argues that because the SDAE and the Guild
received copies in a timely manner, and because they knew of the District's intent to file the
document before the deadline, they are not prejudiced by the late filing. The request was routed
to the Board's Sacramento headquarters office, but was not received until July 16, 2001, six
days late.
EXCLUSIVE REPRESENTATIVE’S RESPONSE
The SDAE and the Guild oppose the District's appeal from the administrative
determination, claiming they would be prejudiced if the filing were accepted as timely.
Specifically, they argue that the late filing was not due to an inadvertent clerical error, but due
to the District counsel's negligence and that the SDAE and the Guild continue to be prejudiced
by the late filing because the District refuses to recognize the effectiveness of the Board's
decision until it has exhausted all review and appeal remedies available to it.
DISCUSSION
PERB Regulation 32136 provides that:
that the case is one of special importance. Service and proof of
service of the request pursuant to Section 32140 are required.
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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.
The Board, in North Orange County Regional Occupation Program (1990) PERB
Decision No. 807 (North Orange County), excused a filing that was inadvertently sent to the
Los Angeles regional office rather than the Sacramento headquarters office.
The SDAE and the Guild argue North Orange County is distinguishable because it is
unclear whether anyone told the secretary in that case that the document needed to be filed
with the Board's headquarters' office; and because in that case, the document was filed ten days
before the due date, not on the due date like the District's filing in this case.
In Trustees of the California State University (1989) PERB Order No. Ad-192-H
(Trustees), the Board excused a technically late filing based on secretarial error where
unrefuted evidence indicated that the document was actually mailed on the filing date, where
the explanation of what occurred was not so unreasonable as to be unbelievable, and where the
opposing party had shown no actual prejudice resulting from the one-day delay. This standard
has been applied by PERB in subsequent decisions. (Regents of the University of California
(1989) PERB Order No. Ad-202-H.)
The District, through declarations, offers unrefuted evidence indicating the document
was mailed by U.S. Express Mail on the due date, albeit to the incorrect office. The District's
explanation of what occurred is not so unreasonable as to be unbelievable. There is no
evidence of prejudice resulting from the technically deficient filing. Accordingly, as the
instant case falls squarely within the Board's precedent found in North Orange County and
Trustees, we conclude good cause exists for excusing the late filing and accepting the District's
request for judicial review as timely filed.
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REQUEST FOR A STAY
The District claims that the Educational Employment Relations Act (EERA)3 statutes
and policy provide that the Board's decision in San Diego should be stayed pending judicial
review. The District argues that pending the outcome of its request for judicial review, the
District is at risk of an enforcement proceeding. The District claims a stay would avoid the
potential conflict and confusion that could result from having employees move from one
bargaining unit to another for a limited period of time, only to be returned to the original
bargaining unit once the decision in its favor has been rendered.
The SDAE and the Guild argue that the Board's regulations do not provide for an
automatic stay of the effectiveness of a unit modification decision and that the request for a
stay only seeks to delay the affected unit members' desire to be represented by their exclusive
representative of choice.
DISCUSSION
PERB does not have a specific regulation which covers whether a request for judicial
review filed with the Board stays a Board decision in a unit modification setting.
EERA section 3542(a) outlines the parties' rights and PERB's role with respect to requests for
judicial review of a unit determination as follows:
No employer or employee organization shall have the right to
judicial review of a unit determination except: (1) when the
board in response to a petition from an employer or employee
organization, agrees that the case is one of special importance and
joins in the request for such review; or (2) when the issue is
raised as a defense to an unfair practice complaint. A board order
directing an election shall not be stayed pending judicial review.
3 EERA is codified at Government Code section 3540 et seq.
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Upon receipt of a board order joining in the request for judicial
review, a party to the case may petition for a writ of extraordinary
relief from the unit determination decision or order.
A plain reading of the statute indicates that only a Board order directing an election is subject
to a mandatory prohibition on any stay pending judicial review. In non-election unit
determination cases, it is apparent the Board has the discretion to grant a stay.
On August 29, 2001 the Guild filed an unfair practice charge and requested injunctive
relief against the District. (PERB Unfair Practice Charge No. LA-CE-4321-E; Injunctive
Relief Request No. 422.) The unfair practice charge alleges that the District refuses to bargain
over the wages, hours, and other terms and conditions of employment for the continuing
education counselors. On September 10, 2001, the Board denied the request that PERB seek
injunctive relief in this matter.
Without prejudging the Board's determination on the request for judicial review, if it is
necessary to resolve any perceived ambiguity about the effect of San Diego it will likely be
done through the pending unfair practice case. As such, the Board declines to exercise its
discretion to grant a stay in this matter.
CLARIFICATION OF THE IMPACT OF SAN DIEGO
The SDAE and the Guild request clarification as to the "effective date of the Board's
decision and which exclusive representative represents the affected unit members in light of
District's refusal to recognize the effectiveness of the Board's decision."
For the same reasons the Board denies the request for a stay, the request by the SDAE
and the Guild that the Board clarify the effective date of San Diego and clarify which exclusive
representative represents the affected members is denied.
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ORDER
The San Diego Community College District's (District) request for judicial review of
San Diego Community College District (2001) PERB Decision No. 1445 (San Diego) is
hereby ACCEPTED as timely filed. The request by the District for a stay is hereby DENIED.
The request by the San Diego Adult Educators Chapter of Local 4289, CFT, AFT, AFL-CIO
and the American Federation of Teachers Guild, Local 1931, CFT, AFT, AFL-CIO that the
Board clarify the effective date of San Diego and clarify which exclusive representative
represents the affected members is DENIED.
Members Amador and Whitehead joined in this Decision.
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