California School Employees Association (Simeral) (PERB A233E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TIMOTHY GALE SIMERAL,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Respondent.
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Case No. S-CO-278
Administrative Appeal
PERB Order No. Ad-233
September 8, 1992
Appearances: Timothy Gale Simeral, on his own behalf; William C.
Heath, Deputy Chief Counsel for California School Employees
Association.
Before Camilli, Caffrey and Carlyle, Members.
DECISION
CAFFREY, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Timothy Gale Simeral
(Simeral) of the rejection by the PERB appeals assistant as
untimely filed, of his request for reconsideration of California
School Employees Association (Simeral) (1992) PERB Decision No.
930. In that decision the Board affirmed the Board agent's
dismissal of Simeral's charge that the California School
Employees Association (CSEA) violated section 3543.6(b) of the
Educational Employment Relations Act (EERA) 1 by mishandling a
1EERA is codified at Government Code section 3540 et seq.
Section 3543.6 provides, in pertinent part:
It �hall be unlawful for an employee
organization to:
(b) Impose or threaten to impose reprisals
on employees, to-discriminate or threaten to

grievance 	regarding 	the 	timing 	of 	a 	bus 	run.
PERB 	Decision No. 	930 	was 	served 	on 	the 	parties 	by 	mail
on 	May 	14, 	1992. 	Any 	request 	for 	reconsideration was 	due 	to 	be
filed 	with 	PERB 	no 	later 	than 	June 	8, 	1992 	in 	accordance 	with
PERB 	Regulation 	sections 	324102 and 	32135. 3 Simeral's 	first
attempt 	at 	filing 	the 	request 	was 	postmarked 	June 	2, 	1992 	but was
incorrectly 	addressed 	and 	returned 	to 	him 	by 	the 	postal 	service.
The 	second 	attempt 	at 	filing 	was 	sent 	by 	regular 	first-class
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	this 	chapter.
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	PERB 	Regulation
section 	32410(a) 	states, 	in pertinent 	part:
Any 	party 	to 	a 	decision 	of 	the 	Board 	itself
may, 	because 	of 	extraordinary 	circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
within 	20 	days 	following 	the 	date 	of 	service
of 	the 	decision. 	An 	original 	and 	5 	copies 	of
the 	request 	for 	reconsideration 	shall 	be
filed 	with 	the 	Board 	itself 	in 	the
headquarters 	office 	and 	shall 	state with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	specify 	the 	page 	of 	the
record 	relied 	on. 	Service 	and 	proof 	of
service 	of 	the 	request 	pursuant 	to 	section
32140 	are 	required.
3PERB 	Regulation 	section 	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.
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mail, 	postmarked 	June 	10, 	1992, 	and 	received 	by 	PERB 	on June 	11,
1992. 	As 	a 	result, 	Simeral 1 s 	request 	for 	reconsideration was
rejected 	by 	the 	PERB 	appeals 	assistant 	as 	untimely 	filed.
SIMERAL 1 S APPEAL
On 	appeal, 	Simeral 	states 	that 	the 	first, 	incorrectly
addressed 	filing 	was 	held 	by 	the 	postal 	service 	for 	several 	days
before 	being 	returned 	to 	him 	after 	June 	9, 	1992, 	making 	it
impossible 	for 	him 	to 	correct 	the 	error 	and 	submit 	a 	timely
filing 	by 	the 	June 	8, 	1992 	due 	date. 	As 	evidence, 	Simeral
presents 	a 	statement 	from 	his 	mail 	carrier 	indicating 	that
Simeral 1 s 	mail 	was 	"inadvertently 	held, 	causing 	a 	delay 	in
delivery" 	from 	June 	6, 	1992 	through 	June 	9, 	1992.
The 	case 	file 	also 	includes 	a 	letter 	from 	CSEA 	stating 	that
CSEA had 	on 	June 	5, 	1992 	received 	a 	copy 	of 	Simeral 1 s 	June 	2,
1992 	request 	for 	reconsideration.
DISCUSSION
Pursuant 	to 	PERB 	Regulation 	section 	32136, 4 the 	Board may
excuse 	a 	late 	filing 	for 	good 	cause 	only. 	The 	Board 	has
previously 	excused 	late 	filings 	which 	have 	gone 	astray. 	In 	North
Orange 	County 	Regional 	Occupational 	Program 	(1990) 	PERB 	Decision
No. 	807, 	exceptions 	were 	filed 	well 	before 	the 	deadline, 	but were
inadvertently 	filed 	in 	the 	Los 	Angeles 	Regional 	office, 	rather
4PERB 	Regulation 	section 	32136 	states:
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.
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than 	the 	Sacramento 	Headquarters 	office. 	The 	North 	Orange 	County
Regional 	Occupational 	Program 	(NOCROP) 	explained 	that 	the
secretary 	generally 	submitted 	a 	large 	volume 	of 	filings 	with
PERB, 	usually with 	the 	Los 	Angeles 	office. 	In 	this 	case, 	through
force 	of 	habit, 	she 	filed 	the 	exceptions 	in Los 	Angeles. 	The
Board 	found 	that 	NOCROP 	attempted 	to 	file 	in a 	timely 	fashion,
but 	due 	to 	an 	honest 	mistake, 	the 	documents 	were 	filed 	in 	the
wrong 	office.
The 	Board 	has 	also 	excused 	filings 	which 	were 	mailed 	to 	the
proper 	office, 	but were 	not 	timely 	received. 	In 	The 	Regents 	of
the 	University 	of 	California 	(Davis, 	Los 	Angeles, 	Santa 	Barbara
and 	San 	Diego) 	(1989) 	PERB 	Order 	No. 	Ad-202-H, 	the 	Board found
good 	cause 	to 	excuse 	the 	respondent's 	untimely 	filed 	opposition
brief. 	In 	an 	unrefuted 	declaration, 	the 	attorney 	stated 	that 	it
was 	the 	policy 	of 	his 	office 	to 	file 	documents 	with 	PERB 	by
certified 	mail, 	but 	his 	secretary 	inadvertently 	sent 	them 	by
regular 	first-class 	mail 	on 	the 	last 	day 	set 	for 	filing.
Similarly, 	in Trustees 	of 	the 	California 	State 	University 	(1989)
PERB 	Order No. 	Ad-192-H, 	the 	Board 	found 	the 	secretary's
explanation that 	the 	postage 	meter was 	incorrectly 	set 	causing
the 	exceptions 	to 	be 	untimely 	filed, 	constituted 	good 	cause.
This 	case 	is 	similar 	to 	North 	Orange 	County 	Regional
Occupational 	Program, 	supra, 	PERB 	Decision No. 	807 	in 	that
Simeral's 	request 	for 	reconsideration was 	mailed 	well 	before 	the
deadline, 	but was 	inadvertently 	misaddressed. 	The 	statement 	from
Simeral's 	mail 	carrier, 	as 	well 	as 	the 	fact 	that 	CSEA 	received
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its 	copy 	of 	the 	filing 	in a 	timely 	fashion, 	confirm 	the 	fact 	that
Simeral 	made 	a 	conscientious 	attempt 	to 	timely 	file 	but 	failed 	to
do 	so 	due 	to 	an 	honest 	mistake. 	Accordingly, 	the 	Board 	finds
that 	good 	cause 	exists 	to 	excuse 	the 	late 	filing 	and 	accept
Simeral's 	request 	for 	reconsideration 	as 	timely 	filed.
ORDER
Simeral's 	request 	for 	reconsideration 	of 	California 	School
Employees 	Association 	(Simeral) 	(1992) 	PERB 	Decision No. 	930 	is
hereby ACCEPTED 	as 	timely 	filed. 	The 	California 	School 	Employees
Association 	is 	hereby 	afforded 	20 	days 	from 	date 	of 	service 	of
this 	Decision to 	respond 	to 	Simeral's 	request 	for
reconsideration.
Members 	Camilli 	and 	Carlyle 	joined 	in 	this 	Decision.
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