State of California (Department of Personnel Administration) (Fox) (PERB A267S)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JOYCE 	FOX,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
	OF
PERSONNEL 	ADMINISTRATION),
Respondent.
Case
	No.
	S-CE-720-S
Administrative
	Appeal
PERB
	Order
	No. 	Ad-267-S
March 	21, 	1995
Appearances:	
Cathy
	R.
	Hackett
	for
	Joyce
	Fox;
	Joan
	E.
	Branin,
Labor
	Relations
	Counsel,
	for 	State
	of
	California
	(Department
	of
Personnel 	Administration).
Before
	Blair,
	Chair; 	Garcia
	and 	Johnson,
	Members.
DECISION
JOHNSON,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	Joyce
	Fox 	(Fox)
	of
the
	PERB
	appeals
	assistant's
	rejection
	of 	her 	untimely
	filed
appeal 	of 	the
	Board
	agent's
	dismissal
	of
	her
	unfair 	practice
charge.
The
	dismissal 	of 	Fox's
	unfair 	practice
	charge
	was
	served
	on
the
	parties
	by
	mail
	on December
	9, 	1994.
	Including
	weekends,
holidays
	and
	the 	five-day 	extension provided
	by
	PERB
Regulation
	32130(b) 	and
	(c),
1	
the 	appeal 	of 	the
	Board
	agent's
1PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Regulation
	32130
states, 	in pertinent 	part:
(b)
	Except
	for 	filings 	required 	during
	a
"window
	period" 	as 	defined 	in 	sections
	33020,
40130
	or
	51026, 	whenever 	the
	last 	date 	to
file
	a 	document
	falls
	on 	Saturday, 	Sunday, 	or
a
	holiday, 	as 	defined 	in
	Government 	Code

dismissal
	was
	due
	to
	be
	filed
	no
	later
	than 	January
	3, 	1995.
Fox's 	appeal
	was
	sent
	by
	regular
	mail,
	received
	and
	filed
	with
PERE
	on
	January
	4,
	1995, 	one 	day
	late.
sections
	6700
	and
	6701,
	or
	PERB
	offices
	are
closed, 	the
	time
	period 	for
	filing 	shall
	be
extended
	to
	and
	include 	the 	next
	regular
	PERB
business
	day.
	The
	extension 	of
	time 	provided
herein
	shall
	be
	applied
	subsequent
	to 	the
application 	of
	any
	other 	extension 	of 	time
provided
	by
	these 	regulations 	or
	by
	other
applicable
	law.
(c) 	The
	extension 	of 	time 	provided
	by
California
	Code
	of 	Civil
	Procedure
	section
1013,
	subdivision 	(a),
	shall
	apply 	to
	any
filing
	made
	in
	response 	to
	documents
	servedby
	mail.
The
	Board
	has 	reviewed
	the
	appeal
	filed
	by 	Cathy
	R.
	Hackett
(Hackett)
	on
	behalf
	of
	Fox,
	and
	finds
	that
	good
	cause 	does
	not
exist
	to
	excuse
	the
	late
	filing.
2	
Hackett
	maintains
	that
	the
late 	filing
	of 	Fox's 	appeal 	should
	be
	excused because 	she
	did
	not
receive 	notice
	of 	the
	dismissal
	of 	Fox's
	charge
	until
December
	30, 	1994.
	PERB
	Regulation
	32142
	mandates,
	in
	pertinent
part:
Whenever
	a
	document
	is
	required
	to
	be
	"filed"
or
	"served"
	with
	any
	of
	the
	below
	listed
entities,
	the 	proper
	recipient 	shall
	be:
(e)
	An
	individual
	-
	the
	named
	person
	or 	to
the
	person's 	representative
	of 	record.
According
	to
	Hackett,
	the
	Board
	agent
	knew
	that
	she
	represented
Fox
	and,
	therefore,
	she 	should
	have
	been
	served 	with 	the
	decision
2 PERB
	Regulation 	section
	32136
	states, 	in 	pertinent 	part:
A
late 	filing
	may
	be 	excused 	in 	the
discretion 	of 	the 	Board
	for
	good 	cause 	only.
2

w
to 	dismiss 	Fox's 	charge. 	However, 	Fox 	did 	not 	file 	a 	written
notice 	of 	appearance 	or 	representation 	indicating 	that 	Hackett
was 	Fox's 	representative 	of 	record 	prior 	to 	the 	issuance 	of 	the
dismissal. 	While 	the 	Board 	agent 	acknowledged 	that 	Hackett 	was
"assisting" 	Fox, 	that 	did 	not 	establish 	Hackett 	as 	the
representative 	of 	record.
Accordingly, 	good 	cause 	does 	not 	exist 	to 	excuse 	the 	late
filing 	of 	Fox's 	appeal.
ORDER
Fox's 	appeal 	of 	the 	PERB 	appeals 	assistant's 	rejection 	of
her 	appeal 	of 	the 	Board 	agent's 	dismissal 	of 	her 	unfair 	practice
charge 	in 	Case 	No. 	S-CE-720-S 	is 	hereby 	DENIED.
Chair 	Blair 	and Member 	Garcia 	joined 	in 	this 	Decision.
3