State of California (Department of Corrections) (California Correctional Peace Officers Association) (PERB A259S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	TBE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Charging
	Party,
V.
STATE
	OF
	CALIFORNIA
	(DEPARTMENTOF
	CORRECTIONS)
I
Respondent.
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___________________ )
Case
	No.
	S-CE-551-S
Administrative
	Appeal
PERB
	Order
	No.
	Ad-259-S
August
	8, 	1994
Agpearance:	
State
	of
	California
	(Department
	of 	Personnel
Administration)
	by
	Paul
	M.
	Starkey,
	Labor
	Relations
	Counsel,
	for
State
	of
	California
	(Department
	of
	Corrections).
Before
	Blair,
	Chair; 	Caffrey, 	Carlyle
	and
	Garcia,
	Members.
DECISION
CAFFREY,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	State
	of
California
	(Department
	of 	Corrections) 	(State) 	of 	the
	rejection
by
	the
	PERB
	appeals
	assistant
	of 	the
	State's
	exceptions
	to
	a
proposed
	decision
	in
	Case
	No. 	S-CE-551-S
	as 	untimely
	filed
.
.
BACKGROUND
The
	proposed
	decision 	in
	Case 	No. 	S-CE-551-S 	was
	served
	on
the
	parties
	by mail
	on March 	29, 	1994.
	After 	approval 	of 	an
extension 	of 	time, 	exceptions
	were 	due
	to
	be
	filed
	on
	May
	5,
1994.
	PERB
	Regulation
	32135
	states:
1
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
	of£ice.
The
	State's
	exceptions
	were
	received
	in
	the 	proper
	PERB
	office
via
	certi:Eied
mail 	postmarked
May
	6, 	1994.
	Accordingly,
	the
	PERB
appeals
	assistant 	rejected
	the 	exceptions 	as 	untimely
	filed.
On
	appeal,
	the
	State
	asserts 	that
	it
	made 	a
	good
	faith
effort
	to
	timely
	file
	its
	exceptions
	in
	this
	case,
	and
	that
	no
prejudice 	to
	the 	the
	California
	Correctional
	Peace
	Officers
Association
	(CCPOA),
	results
	from
	the 	Board's 	acceptance
	of 	the
exceptions.
The
	State
	argues
	that
	the
	Board
	should
	find
	good
	cause
	to
excuse
	the
	late 	filing
	because
	it
	resulted
	from
	an
	inadvertent
error
	by
	the
	U.
	S.
	Postal 	Service.
	The
	State 	indicates
	that
	it
took
	the
	envelope
	containing
	its
	exceptions
	to 	the
	Royal 	Oaks
Post
	Office
	branch
	in
	Sacramento
	at
	approximately 	11:00 	p.m.
	on
May
	5,
	1994, 	and
	placed 	the
	envelope
	in
	a
	mailbox which
	carried
	a
notice 	stating:
	''Ma:il
	deposited
	after
	8:
30 	p .m.
	and
	before
12:00 	midnight
	will
	be 	postmarked 	with 	the 	current 	date."
	The
State 	asserts 	that
	it
	has 	followed
	this
	same
	procedure
	in 	the
past,
	and 	the 	:resulting postmark
	date
	was
	the 	date 	the 	mail
	was
deposited 	in 	the 	mailbox
	consistent 	with 	the 	notice. 	Since 	the
postmark 	date
	which
	resulted 	in 	this
	case
	was 	one 	day
	after
	the
date 	of 	deposit 	in 	the mailbox, 	the 	State 	argues 	that 	the 	postal
service 	erred by 	not 	acting 	in accordance 	with 	the 	notice,
resulting 	in 	the 	exceptions 	being 	filed 	late. 	In 	support 	of 	this
.2

contention, 	the
	State 	offers
	a
	letter
	from
	the
	manager
	of
customer
	services 	for
	the
	Sacramento
	Post
	Office
	in
	which
	the
postal 	service
	error
	is
	admitted.
	The
	letter
	indicates
	that
	the
State's
	exceptions
	"should
	have
	been
	dated
May
	5,
	1994."
CCPOA
	filed
	no
	response
	to
	the
	State's
	appeal.
DISCUSSION
PERB
	Regulation
	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.
The
	Board
	has 	excused
	late 	filings
	which
	resulted
	from
clerical
	error 	in
	which
	the 	delay
	was
	brief
	and
	no
	prejudice 	to
any
	party 	resulted.
	In
	North
	Orange 	County
	Regional 	Occupational
Program
	(1990)
	PERB
	Decision
	No.
	807,
	the
	Board 	found 	good
	cause
to
	excuse
	the
	late 	filing
	of 	exceptions
	which 	were
	filed
	well
before 	the 	deadline, 	but
	were
	mistakenly
	filed
	in
	PERB's
Los
	Angeles 	Regional
	Office
	rather
	than 	the
	Sacramento
Headquarters 	Office.
The 	Board has
	also
	excused
	filings
	which were
	mailed
	to
	the
proper
	off ice,
	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 mistakenly 	sent
	them by
	regular
3

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.
In 	California
	School
	Employees
	Association
	(Simeral)
	(1992)
PERB
	Order
	No.
	Ad-233
	(CSEA
	(Simeral),
	the
	Board 	found 	good
	cause
to
	excuse
	a
	late 	filing
	caused
	in 	part
	by
	inadvertent
	action
	by
the
	U.
	S.
	Postal 	Service. 	In
	that
	case, 	the
	postal 	service 	held
an
	incorrectly
	addressed
	filing
	before
	returning
	it
	to 	the
charging
	party,
	making
	it
	impossible
	for
	him
	to 	correctly
	address
and
	timely
	file
	a
	request
	for 	reconsideration.
This 	case
	is
	similar 	to
	CSEA
	(Simeral)
	in 	that
	an
inadvertent
	error
	by
	the
	U.
	S.
	Postal 	Service 	contributed
	to
	the
late 	filing.
	It
	is
	clear 	that
	the 	State
	made
	a
	good
	faith 	effort
to 	timely
	file.
	Furthermore,
	a
	postal 	service 	representative
	has
admitted 	the
	error
	which
	contributed 	to 	the
	brief
	delay,
	and
CCPOA
	offers
	no 	argument
	in 	opposition 	to 	the
	State's
	appeal.
Accordingly, 	the
	Board
	finds
	that
	good
	cause
	exists 	to
	excuse 	the
late 	filing
	and
	accepts 	the
	State's
	exceptions 	to 	the 	proposed
decision 	in
	Case
	No.
	S-CE-551-S
	as 	timely
	filed.
ORDER
The
	State's
	exceptions 	to 	the 	proposed
	decision 	in
	Case
No, 	S-CE-551-S
	ar1~
	hereby
	ACCEPTED
	as 	timely 	filed.
	The
California 	Correctional 	Peace
	Officers 	Association
	is
	hereby
4

afforded
	twenty
	(20)
	days
	from
	the 	date
	of
	service
	of
	this
Decision
	to
	file
	a
	response
	to
	the
	State's
	exceptions.
Chair
	Blair
	and
	Members
	Carlyle
	and
	Garcia
	joined
	in
	this
Decision.
5