Compton Unified School District (PERB A313E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JANICE M. ABNER,
Charging Party,
V.
COMPTON UNIFIED SCHOOL DISTRICT,
Res ondent.
Appearance: Janice M. Abner, on her own behalf.
Before Amador, Baker and Whitehead, Members.
DECISfON
' '
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Janice M. Abner (Abner) from an administrative determination
that her appeal of the dismissal of her unfair practice charge against the Compton Unified
School District (District) was untimely filed.
Case No. LA-CE-4250-E
Administrative Appeal
PERB Order No. Ad-313
January 31, 2002
After reviewing the entire record in this matter including Abner's appeal from the
administrative determination that her appeal was untimely, the Board denies Abner's request to
accept her late filed appeal._
BACKGROUND
Abner filed an unfair practice charge against the District on December 12, 2000
alleging that the District retaliated against her in violation of the Educational Employment

Relations Act (EERA) 1
by giving her
~ore
extra-duty assignments. 	On January 31, 2001 2 a
Board agent sent Abner a warning letter stating her charge would be dismissed as it appeared
that Abner's protected activity occurred after the extra-duty assignments were issued.
	On
February 18, Abner filed an amended charge. The charge was dismissed by the Board agent on
February 28, based on a lack
of
nexus between the alleged adverse action and Abner's
protected activity.
Abner appealed the dismissal by filing a letter dated September 7, which was received
by the PERB San Francisco regional office on September 10. The San Francisco regional
office routed the appeal to PERB's headquarters office where it was received and filed
with
the
Board on September 12.
The Board's appeals assistant dismissed t~e appeal as untimely on September 17.
	Her
determination noted that pursuant to PERB Regulati-on 32635(a)3,
I Abner's appeal
of
the
February 28 dismissal was due to be filed with PERB no later than March 26, therefore
her
filing was nearly five and one-half months late.
1EERA is codified at Government Code section 3540 et seq.
2 All dates refer to 2001 unless otherwise noted.
3
·.
	PERB regulations are found at California Code
of
Regulations, title 8, section 31001
et seq. and available on PERB's Web site at www.perb.ca.gov. PERB Regulation 32635(a)
states, in pertinent part:
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. 	Except as provided in Section 32162,
service and proof of service
of
the appeal on the respondent
pursuant to Section 32140 are required.
2

· DISCUSSION
Late filings are governed by PERB Regulation 32136 which 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 demonstrated that a conscientious effort to timely file was made. 	(North Monterey County
Unified School District (1996) PERB Order No. Ad-274.)
Abner argues that PERB's appeal timelines should be waived as she did not receive
"responses in opposition to complaint from respondent upon request after notice
of
dismissal."
Following the dismissal
of
the complaint, Abner apparently asked the District's counsel for a
copy
of
"all affirmative defenses, and affidavits from site principal and administrator in
opposition to complaint dismissed by [PERB]." Her appeal argues sheI made the request
because she was never served with the District's response to her unfair practice charge. 	In
support
of
her appeal she urges the appeal be treated as timely as:
[Abner] was unable to determine
if
[District] response in
opposition to the Unfair Labor charge was confined solely to the
issues in the complaint, and not in reguard [sic] to earlier actions
pursued by [Abner] against [District].
Abner's explanation for her late filing does not adequately explain why she could not
file her appeal on time. There is simply no evidence that Abner made a conscientious effort to
comply with the March 26 filing deadline. While there is likely no requirement under EERA
that the District provide the information she requested, even
if
there were, it would not toll our
appeal timelines as urged by Abner nor provide the good cause basis to excuse her five and
one-half month late filing.
3

ORDER
Janice M. Abner's request that the Board accept her late filed appeal from dismissal in
Case No. LA-CE-4150-E is hereby DENIED.
Members Amador and Baker joined in this Decision.
4