State of California (Department of Corrections) (Horspool) (PERB A287S)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
.
WILLIAM
	F.
	HORSPOOL,
Charging
	Party,
v.
STATE
	OF
	CALIFORN:.IA
	(DEPARTMENT
OF
	CORRECTIONS)
I
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Case
	No. 	LA-CE-403-S
-
Administrative
	Appeal
PERB
	Order
	No. 	Ad-287-S
January
	29,
	1998
Appearance:	
Hartnell,
	Horspool 	and
	Fox
	by
	J.
	David
	Horspool,
Attorney,
	for
	William
	F.
	Horspool.
Before 	Caffrey,
	Chairman;
	Johnson 	and
	Jackson,
	Members.
DECISION
CAFFREY,
	Chairman:
	This 	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERE
	or
	Board) 	on
	appeal
	by Robert
	G.
Horspool
	(R.
	Horspool)
	of 	the
	rejection
	of
	his
	untimely
	filed
appeal 	of
	a
	Board
	agent's
	determination
	that
	he
	is
	not
	a
	party 	to
the
	unfair 	practice
	charge
	in
	Case
	No. 	LA-CE-403-S.
BACKGROUND
The
	unfair 	practice
	charge
	in
	Case No. 	LA-CE-403-S 	was
	filed
by William
	F. 	Horspool
	(W.
	Horspool)
	on
May
	14, 	1997.
	The 	Board
agent 	issued
	a
	partial
	warning
	letter
	on September 	22, 	1997.
W.
	Horspool 	responded	
by	
filing
	an
	amended
	unfair practice
	charge
which
	included.the 	assertion 	that
	R.
	Horspool
	was 	a
	party 	to 	the
original
	charge. 	In 	an 	October 	24, 	1997,
	partial 	dismissal
letter,
	the 	Board agent
	states 	that 	the 	original 	charge
	named and
was
	signed 	only by
	W.
	Horspool, 	and
	that 	the 	original 	charge 	did
not 	indicate 	that
	R. 	Horspool 	was 	a
	party 	to 	the 	charge. 	The

Board
	agent
	further 	indicates
	that
	the
	charge
	included
	no
	facts
demonstrating
	a
	prima
	facie
	violation
	of
	the
	Ralph
	C.
	Dills
	Act
(Dills
	Act)
1	
involving
	R.
	Horspool, 	even
	if
	he
	were
	to
	be
considered
	a
	party 	to
	the
	charge.
Pursuant
	to
	PERB
	Regulations
	32635(a) 	and
	321352 ,
	an
	appeal
of
	the
	October
	24,
	1997,
	partial
	dismissal
	was
	due
	to
	be
	filed
	no
later
	than
	November
	18, 	1997.
	On
	November
	25,
	1997,
	R.
	Horspool
filed
	an
	appeal 	of 	the
	Board
	agent's
	partial
	dismissal
	in
	Case
No. 	LA-CE-403-S.
	On
	December
	1,
	1997,
	the
	PERB
	appeals
	assistant
rejected
	R.
	Horspool's
	November
	25, 	1997,
	appeal 	as 	untimely
filed.
On
	December
	15, 	1997,
	R.
	Horspool
	filed
	an
	appeal 	of
	the
rejection
	as 	untimely
	filed
	of
	his
	appeal
	of 	the
	Board
	agent's
1The
	Dills
	Act
	is
	codified
	at
	Government 	Code
	section
	3512
et
	seq.
2
PERB
	regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Regulation
	32635
states,
	in 	pertinent 	part:
(a)
	Within
	20
	days
	of 	the 	date 	of 	service 	of
a
	dismissal, 	the 	charging
	party
may
	appeal
the 	dismissal 	to 	the
	Board
	itself.
	The
original
	appeal
	and
	five 	copies
	shall
	be
filed 	in 	writing 	with 	the
	Board
	itself
	in 	the
headquarters
	office,
	and
	shall
	be
	signed
	by
the 	charging
	party 	or
	its
	agent.
Regulation
	32135
	states:
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. 
2

partial
	dismissal.
	R.
	Horspool
	asserts 	that
	he
	"wrote
	an 	appeal
stating
	why
	he
	should
	be
	included
	in
	the
	original
	charge 	and had
it
	mailed
	by
	priority
	mail
	on
	November
	18th,
	1997."
	However,
	the
appeal
	also
	states 	that
	R.
	Horspool
	"did not
	fully
	understand
that
	the
	appeal
	needed
	to
	be
	sent
	by
	certified
•mail
	post
	marked
by
	November
	18th,
	1997."
DISCUSSION
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
	becomesa
	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
(1989)
	PERB
	Order
	No. 	Ad-192-H;
	Barstow
Unified
	School
	District
(1996)
	PERB
	Order
	No.
	Ad-277.)
R.
	Horspool
	first
	asserts 	that 	his
	appeal
	was
	mailed
	by
priority
	mail
	on
	the
	filing
	deadline,
	November
	18, 	1997.
	This
	is
inaccurate,
	however.
	The
	appeal
	was
	filed 	at
	PERB
	headquarters
on 	November 	25, 	1997,
	via 	priority
mail 	postmarked
	November
	21,
1997, 	three._days
	after
	the -filing
	deadline.
	R.
	Horspool
	also
asserts 	that
	he
	did 	not 	understand 	the
	filing
	deadline, 	but 	the
Board
	agent's 	dismissal
	letter
	includes 	clear 	information 	on
	this
subject. 	Failure 	to 	review
	PERB
	materials 	relative 	to 	filing
3

deadlines
	cannot 	be
	considered
	good
	cause
	to
	excuse
	a
	late
filing.
	(Los
	Angeles
	Unified
	School
	District
	(1993)
	PERE
	Order
No.
	Ad-247.)
Under-these 	circumstances, 	the
	Board
	concludes
	that
	there
	is
not
	good
	cause
	to
	excuse
	R.
	Horspool's
	late 	filing.
3
ORDER
The
	request
	by
	Robert
	G.
	Horspool
	that
	the
	Board
	accept
	his
late
	filed
	appeal
	in
	Case
	No. 	LA-CE-403-8
	is
	hereby
	DENIED.
Members
	Johnson 	and 	Jackson
	joined
	in
	this
	Decision.
3The 	Board
	also 	notes 	that
	PERB
	records 	indicate 	that 	the
original 	unfair 	practice 	charge
	in
	Case 	No. 	LA-CE-403-8 	was
	filed
by
	W.
	Horspool 	only 	on May
	14, 	1997. 	The 	Board agent 	correctlyconcluded 	that
	R. 	Horspool
	is
	not
	a
	party 	to 	that 	charge.
4