Coachella Valley Unified School District (Kok) (PERB A292E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
PHILIP
	A.
	KOK,
Charging
	Party,
V.
COACHELLA VALLEY
	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
)
)
)	
Case
	No.
	LA-CE-3822
Administrative
	Appeal
PERE
	Order
	No.
	Ad-292
December
	11,
	1998
)
)
)
)
)
)
)
)
Appearances:	
Philip
	A. 	Kok,
	on
	his
	own
	behalf;
	Atkinson,Andelson,
	Loya,
	Ruud	
& 	Romo
	by
	Sherry
	G.
	Gordon,
	Attorney,
	for
Coachella 	Valley 	Unified
	School
	District.
Before
	Caffrey,
	Chairman; 	Dyer 	and
	Amador, 	Members.
DECISION
CAFFREY,
	Chairman:
	This 	case
	is
	before 	the 	Public
Employment
	Relation
	Board
	(PERB
	or
	Board) 	on
	a
	request
	by
Philip
	A. 	Kok 	(Kok)
	that
	the
	Board
	accept 	the
	late 	filed
amendment
	to 	his
	appeal 	of
	a
	Board
	agent's
	dismissal 	of
	his
unfair 	practice
	charge.
BACKGROUND
The
	Board
	agent's 	dismissal
	was
	served
	on
	the
	parties
	on
August 	20, 	1998.
1
Pursuant
	to
	PERB
	Regulation
	32635(a)
2 ,
	Kok's
1
All 	dates 	refer 	to
	1998.
PERB
	regulations 	are 	codified
	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Regulation
	32635
states, 	in 	pertinent 	part:
2
(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

appeal
	of
	the 	dismissal
	was
	due
	to
	be
	filed
	no
	later
	than
September 	14.
	On
	August 	31,
	Kok
	timely
	filed
	an
	appeal.
However, 	on
	September 	16,
	two
	days
	after
	the
	filing
	deadline,
	Kok
filed
	an
	amendment
	to 	his
	appeal.
	On
	September 	17,
	the
	PERB
appeals
	assistant
	rejected
	the
	amendment
	as 	untimely
	filed.
On
	Septembe~
2:8,
	Kok
	filed
	the
	instant
	appeal 	of
	the
rejection
	of
	his
	untimely
	September
	16
	filing.
	Kok
	states 	that
the
	delay
	in
	filing
	resulted
	from
	"postal 	or
	clerical
	delay,"
because
	his
	appeal
	amendment
	is
	dated
	September 	12,
	prior 	to
	the
filing
	deadline.
	Since
	September
	12 	was
	a
	Saturday,
	Kok
	asserts
that 	his 	filing
	should
	have
	been postmarked
	no
	later
	than
	Monday,
September
	14,
	the
	filing
	deadline.
DISCUSSION
PERB
	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 	theproper
	PERB
	office.
Kok
	used
	regular
	United
	States
	mail,
	postmarked September 	14,
	in
filing
	his
	appeal
	amendment, 	which
	was
	received
	by
	PERB
	on
September 	16, 	two
	days
	after
	the
	filing
	deadline.
PERB
	Regulation
	32136
	states, 	in 	pertinent 	part:
headquarters 	office,
	and
	shall
	be 	signed 	by
the 	charging 	party 	or
	its
	agent. 	Except 	as
provided 	in 	Section
	32162,
	service
	and 	proof
of 	service 	of 	the 	appeal
	on
	the 	respondent
pursuant 	to 	Section
	32140
	are 	required.
2

A	
late 	filing
	may
	be 	excused
	in
	the
discretion
	of
	the
	Board
	for
	good
	cause
	r"'\,..,,
'TP	
VU.J..:f
•
In 	applying
	this
	regulation,
	the
	Board
	has
	found
	good
	cause
	to
excuse
	a
	late 	filing
	which
	resulted
	from
	exceptions 	being
directed
	to
	the
	wrong
	PERE
	office.
	(North
	Orange 	County
	Regional
Occupational
	Program
	(1990)
	PERB
	Decision
	No.
	807.)
	The
	Board
has 	found
	that
	the
	inadvertent, 	incorrect
	use
	of
	a
	postage 	meter
resulting 	in
	an
	incorrect
	postmark
	represented
	good
	cause
	to
excuse
	a
	late 	filing.
	(Trustees 	of
	the
	California 	University
(1989)
	PERB
	Order
	No.
	Ad-192-H.)
	The
	Board
	has
	also
	accepted
late 	filings
	where
	a
	party
	made
	a
	good
	faith
	attempt
	to
	file
	in
	a
timely
	manner
	but
	inadvertently
	used
	a
	delivery 	service
	not
listed
	in
	PERB
	Regulation
	section
	32135.
	(State 	of
	California
(Department
	of 	Forestry
	and
	Fire 	Protection)
	(1998)
	PERB
	Order
No.
	Ad-286-S;
	The
	Regents
	of
	the 	University 	of
	California
	(Davis,
Los
	Angeles, 	Santa 	Barbara
	and 	San Diego)
	(1989)
	PERB
	Order
No.
	Ad-202-H.)
	In
	this
	case,
	however,
	Kok
	provides
	no
justification
	for 	the
	lateness
	of
	his
	filing, 	referring
	only
	to
some
	unspecified 	"postal 	or
	clerical
	delay.
11
	Where
	a
	party
provides
	no
	justification
	for 	his
	late 	filing,
	the
	Board
	is
precluded
	from
	finding
	that
	good
	cause
	exists.
	(See,
	e.g., 	State
of
	California
	(Department
	of 	Insurance)
	(1997)
	PERB
	Order
No.
	Ad-282-S.)
The 	Board
	agent's
	August
	20
	letter
	dismissing 	Kok's
	unfair
practice
	charge
	clearly 	describes 	the 	requirements 	for 	timely
filing
	an 	appeal 	pursuant 	to
	PERB
	Regulation 	32135.
	Kok
	failed
to
	comply 	with 	those 	requirements.
	The 	Board 	concludes 	that
	Kok
3

has
	not
	demonstrated
	good
	cause
	to
	excuse
	his
	September
	16
	filing
of
	an
	amendment
	to 	his
	appeal.
ORDER
Philip
	A.
	Kok's
	request
	that
	the
	Board
	accept_
	his
	late
	filed
amendment
	to 	his
	appeal 	of
	the 	dismissal
	in
	Case
	No. 	LA-CE-3822
is
	hereby
	DENIED.--__	
~-
Members
	Dyer 	and
	Amador
	joined
	in
	this
	Decision.
4