State of California (Department of Forestry and Fire Protection) (PERB A286S)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
DEPARTMENT
	OF
	FORESTRY
FIREFIGHTERS,
Charging
	Party,
V.
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
	OF
FORESTRY
AND
	FIRE
	PROTECTION),
Respondent.
)
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______________________
)
Case
	No.
	SA-CE-891-S
Administrative
	Appeal
PERE
	Order
	No.
	Ad-286-S
January
	15,
	1998
Appearance:	
Carroll,
	Burdick
	& McDonough
	by Kassi 	Berg-Beck,
Attorney,
	for 	California
	Department
	of
	Forestry
	Firefighters.
Before 	Caffrey,
	Chairman; 	Dyer
	and
Amador, 	Members.
DECISION
CAFFREY,
	Chairman:
	This 	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
California
	Department
	of 	Forestry
	Firefighters
	(CDFF)
	to 	the
	PERB
Appeals
	Assistant's 	rejection
	of
	its
	response
	to
	exceptions 	as
untimely
	filed.
DISCUSSION
CDFF's
	response
	to 	exceptions
	in
	Case
	No.
	SA-CE-891-S 	was
due
	to
	be
	filed
	no
	later
	than
	November
	4, 	1997.
	The
	response
	was
sent
	on
	November
	4
	by
	overnight 	Federal 	Express 	mail 	and
	received
at
	PERB
	on 	November
	5, 	1997.
PERB
	Regulation
	32135
1	
states:
All
	documents
	shall
	be 	considered 	"filed"
when
	actually 	received
	by
	the 	appropriate
1PERB
	regulations 	are 	codified at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.

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
	theproper
	PERB
	office.
Because
	CDFF
	did
	not 	use
	certified
	or
	Express 	United
	States
	mail,
its
	November
	5
	filing
	failed
	to
	comply
	with 	Regulation
	3·2135
	and
was
	rejected
	as
	untimely
	filed.
CDFF
	asks 	the
	Board
	to 	find
	good
	cause
	to
	excuse
	its
	late
filing
	because
	it
	made
	a
	good
	faith 	effort
	to
	timely
	file,
	but
erred
	by
	using
	an
	overnight
	mail
	delivery 	service
	not
	specified
in
	PERB's
	regulations.
	CDFF
	notes
	that
	the
	response
	was
	received
by
	PERE
	on
	November
	5,
	no
	later
	than
	it
	would
	have
	been
	received
had
	CDFF
	sent
	it
	on
	November
	4
	utilizing
	Express 	United
	States
mail
	as 	specified 	in
	PERE
	Regulation
	32135.
	CDFF
	also
	notes
	that
California
	Code
	of
	Civil
	Procedure
	section
	1013
	provides
	for
service
	by
	mail
	utilizing 	either
	Express 	Mail
	or
	another
	method
providing 	for
	overnight
	delivery.
PERB
	Regulation
	32136
	provides
	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 	applying
	this
	regulation, 	the
	Board 	has 	found 	good
	cause
	to
excuse
	late 	filings
	when
	a
	party
	has
	made 	a
	conscientious
	effort
to 	timely
	file.
	Consequently, 	the
	Board 	has 	excused
	various
types 	of 	"honest 	mistakes" 	involving
	clerical 	or mailing
	errors.
(North 	Orange 	County 	Regional 	Occupational 	Program 	(1990) 	PERB
Decision
	No. 	807;
	Trustees 	of 	the 	California 	State 	University
2

(1989)
	PERB
	Order
	No.
	Ad-192-H;
	Barstow
	Unified
	School
	District
(1996)
	PERE
	Order
	No.
	Ad-277.)
Here,
	CDFF
	made
	a
	conscientious
	effort
	to
	timely
	file
	but
inadvertently
	utilized
	an
	overnight
	mail
	delivery
	system
	not
specified 	in
	PERB
	Regulation
	32135. 	Under
	these 	circumstances;
the
	Board
	finds
	good
	cause
	t6
	accept
	CDFF's
	late 	filed
	response
to
	exceptions.
ORDER
The
	request
	by
	the
	California
	Department
	of
	Forestry
Firefighters 	that
	the
	Board
	accept
	its
	late 	filed
	response
	to
exceptions
	in
	Case
	No.
	SA-CE-891-S
	is
	hereby
	GRANTED.
Members
	Dyer and
	Amador
	joined
	in
	this
	Decision.
3