PERB Order No. A294S•State of California (Water Resources Control Board) (Professional Engineers in California Government) (PERB A294S)
State of California (Water Resources Control Board) (Professional Engineers in California Government) (PERB A294S)
PERB Order No. A294SCalperb14 avr. 1999
Texte intégral
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, Charging Party, v. STATE OF CALIFORNIA (WATER RESOURCES CONTROL BOARD), Respondent. ) ) ) ) ) ) ) ) ) ) ) ___________________ ) Case No. SA-CE-1083-S Administrative Appeal PERE Order No. Ad-294-S April 14, 1999 Appearance: Gerald James, Labor Relations Counsel, for Professional Engineers in California Government. Before Caffrey, Chairman; Dyer and Amador, Members. DECISION DYER, Member: This case comes before the Public Employment Relations Board (PERB or Board) on a request r filed by the Professional Engineers in California Government (PECG) that the Board accept its late-filed response to exceptions. BACKGROUND a Board administrative law judge (ALJ) issued a proposed decision holding that the State of California (Water Resources Control Board) (State) violated section 3519(b) and (c) of the Ralph C. Dills Act (Dills Act) On October 22, 1998, 1 2 when it 1 All dates are 1998 unless otherwise indicated. The Dills Act is codified at Government Code section 3512 et seq. Section 3519 provides, in relevant part: 2 It shall be unlawful for the state to do any of the following:
unilaterally established a new disciplinary rule. A cover letter from the Board's chief ALJ accompanied the proposed decision. That cover letter outlined the procedures and deadlines for filing and responding to exceptions to the proposed decision. Specifically, the cover letter explained that: A document is ·considered 'filed' when actually received before the close of business (5:00 p.m.) on the last day 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.' (PERB Reg. sec. 32135.) 3 On November 16, the State timely filed exceptions to the proposed decision. The State served a copy of those exceptions on PECG by mail. Accordingly, any response to those exceptions was due to be filed no later than December 11. (PERB Reg. sec. 32310.) 4 (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and confer in good faith with a recognized employee organization. PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq. A revision of PERE Regulation 32135 became effective February 7, 1999, subsequent tothe filing of this request. The revision has no bearing on theBoard's consideration in this case. 3 4 PERB Regulation section 32310 provides, in relevant part: Within 20 days following the date of serviceof the statement of exceptions, any party may file with the Board itself an original and five copies of a response to the statement of exceptions and a supporting brief. The 2
On Friday, December 11, PECG responded to the State's exceptions. PECG mailed its response to the Board via first class U.S. mail. The Board's appeals assistant received PECG's response to the exceptions on December 14. On December 15, the appeals assistant rejected it as untimely filed. (See PERB Reg. sec. 32135.) PECG'S REQUEST PECG contends that the lateness of its filing is due to a reasonable mistake on the part of its attorney. In his supporting declaration, PECG's attorney avers that he had never previously filed or participated in filing a response to a statement of exceptions. On December 11, PECG's attorney prepared a response to the State's exceptions. He was aware that December 11 was the last day for PECG to file any response to the State's exceptions. After reviewing the chief ALJ's cover letter, PECG's attorney determined that PECG could file its response by placing it in the first class U.S. mail on December 11. PECG contends that the foregoing constitutes good cause sufficient to excuse its late filing. (Citing Klamath-Trinity Joint Unified School District (1993) PERB Order No. Ad-238 [excusing late filing where secretary erroneously mailed statement of exceptions via regular first class mail on the last response shall be filed with the Board itselfin the headquarters office. 3
day set for filing because she failed to read the PERE letter setting forth the standards for filing].) DISCUSSION As noted above, a document is considered "filed" under the Board's regulations when actually received at the appropriate Board office or when sent by certified or Express U.S. mail. (PERB Reg. sec. 32135.) However, PERE Regulation section 32136 provides that the Board may excuse a late filing for good cause. 5 The Board has found good cause to excuse a late filing only where a party made a conscientious effort to complete its filing in a timely manner but failed to do so because of a clerical or postal error, provided that the delay was brief and no prejudice resulted to any party in the case. (See, e.g., State of California (Department of Forestry and Fire Protection) (1998) PERB Order No. Ad-286-S; Trustees of the California State University (1989) PERB Order No. Ad-192-H at p. 5; The Regents of the University of California (Davis. Los Angeles. Santa Barbara and San Diego) (1989) PERB Order No. Ad-202-H at p. 3; North Orange County Regional Occupational Program (1990) PERE Decision No. 807 at p. 5.) 5 PERB Regulation section 32136 provides: 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. 4
Here, PECG contends that its attorney made a reasonable mistake regarding the manner for filing a response to exceptions. Further, PECG argues, its response to exceptions reached the Board one workday after the filing deadline, the same day that the Board would likely have received a response sent via certified mail. Finally, because service was accomplished by an appropriate method and PERB regulations provide for no response from the State, PECG claims that no party to the case has been prejudiced as a result of the late-filing. The Board has refused to find good cause to excuse a late filing on substantially similar facts. In Calipatria Unified School District (1990) PERB Order No. Ad-217 (Calipatria), the appeals assistant rejected exceptions as untimely when they were deposited in the first class U.S. mail on the last day set for filing. The District requested that the Board find good cause to excuse the late filing based on the mistake of its attorney. In a supporting declaration, the District's attorney indicated that he understood PERB regulations to permit a filing by regular mail on the last day set for filing. The Board concluded that the attorney had not made an attempt to file in a timely fashion but had incorrectly determined that PERB regulations permitted filing by regular mail in the same manner as by certified mail. (Calipatria at p. 11.) The Board held that the attorney's misreading of the regulation did not constitute good cause. (Ibid.) In this case, PECG's attorney either misread or failed 5
to read PERB's regulations and the chief ALJ's letter. PERB Regulation section 32135 would become meaningless if the Board considered an attorney's misreading of that regulation to constitute good cause to excuse a late filing. ORDER Professional Engineers in California Government's request that the Board accept its late-filed response to the State's exceptions in Case No. SA-CE-1083-S is hereby DENIED. Chairman Caffrey and Member Amador joined in this Decision. 6
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