Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego) (Flacks, et al.) (PERB A202H)

STATE 	OF 	CALIFORNIA
DECISIOll 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MIRIAM 	FLACKS, 	ET AL.,
Charging 	Parties,
v.
THE 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA 	(DAVIS, 	LOS 	ANGELES,
SANTA 	BARBARA AND 	SAN 	DIEGO),
Respondents.
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Case 	No. 	LA-CE-210-H
Administrative 	Appeal
PERB 	Order 	No. 	Ad-202-H
December 	29, 	1989
Appearances: 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees 	by 	Cliff 	Fried, 	Representative, 	for 	Miriam 	Flacks, 	et
al.; 	Edward 	M. 	Opton, 	Jr., 	Attorney, 	for 	the 	Regents 	of 	the
University 	of 	California 	(Davis, 	Los 	Angeles, 	Santa 	Barbara 	and
San 	Diego).
Before 	Hesse, 	Chairpersoni 	Craib 	and 	Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	the 	Regents 	of 	the
University 	of 	California 	(UC) 	from 	the 	rejection 	by 	the 	Appeals
Assistant 	to 	the 	Board 	of 	a 	document 	entitled 	Respondent's 	Brief
in 	Opposition 	to 	Charging 	Parties' 	Exceptions. 	The 	document 	was
mailed 	to 	PERB 	by 	UC 	by 	regular 	first-class 	mail 	on 	the 	filing
due 	date 	of 	October 	27, 	1989, 	but was 	received 	by 	PERB 	on 	October
30, 	1989. 	On 	October 	30, 	1989, 	the 	Appeals 	Assistant 	rejected
the 	brief 	as 	untimely 	filed. 	On 	November 	3, 	1989, 	UC 	filed 	its
appeal.
DISCUSSION
In 	rejecting 	the 	document 	as 	untimely 	filed, 	the 	Appeals
Assistant 	relied 	on PERB 	Regulation 	32135 	which 	provides:

32135. 	Filing. 	All 	documents 	shall 	be
considered 	"filed" 	when 	actually 	received 	by
the 	appropriate 	PERB 	office 	before 	the 	close
of 	business 	on 	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.
(Emphasis 	added.)
Thus, 	had 	the 	document 	been 	mailed 	by 	certified 	or 	express 	mail
and 	postmarked 	on 	or 	before 	October 	27, 	1989, 	it would 	have 	been
accepted 	as 	timely.
PERB 	Regulation 	32136 	provides, 	in 	pertinent 	part, 	that 	"A
late 	filing 	may 	be 	excused 	in 	the 	discretion 	of 	the 	Board 	for
good 	cause 	only. 	II 	In 	Statewide 	University 	Police
Association 	v. 	Trustees 	of 	the 	California 	State 	University 	(1989)
PERB 	Order 	No. 	Ad-192-H, 	this 	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.
In 	the 	instant 	case, 	in 	an 	unrefuted 	declaration 	submitted
in 	support 	of 	the 	timely 	filed 	appeal, 	UC 1 s 	attorney 	states 	that
the 	document 	in 	question was 	completed 	on 	the 	evening 	of
October 	26, 	1989, 	and 	that 	he 	instructed 	his 	secretary 	to 	mail
the 	brief 	on October 	27, 	1989, 	while 	he 	was 	out 	of 	town 	on
business. 	He 	further 	states 	that, 	since 	it was 	the 	policy 	of 	his
office 	to 	file 	documents 	with 	PERB 	by 	certified 	mail 	and 	his
secretary 	had 	filed 	many 	documents 	at 	PERB 	by 	certified 	mail, 	he
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believed 	the 	mailing 	would 	be 	accomplished 	by 	certified mail.
The 	brief 	was 	in 	fact 	mailed 	on 	October 	27, 	but 	was 	not 	mailed
certified.
UC's 	unrefuted 	explanation 	of 	what 	occurred was 	not
implausible. 	Furthermore, 	the 	charging 	parties 	in 	this 	case 	have
demonstrated 	no 	prejudice 	resulting 	from 	the 	deficiency 	in 	the
filing. 	Accordingly, 	we 	conclude 	that 	good 	cause 	exists 	for
excusing 	the 	late 	filing 	and 	accept 	UC's 	brief 	as 	timely 	filed.
ORDER
Respondent's 	Brief 	in 	Opposition 	to 	Charging 	Parties'
Exceptions 	is 	ACCEPTED 	as 	timely 	filed.
Chairperson 	Hesse 	and 	Member 	Craib 	joined 	in 	this 	Decision.
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