Trustees of the California State University (PERB A305H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
LTNIVERSITY,
Res ondent.
Case No. LA-CE-566-H
Administrative Appeal
PERB Order No.	
Ad-305-H
December
	11,
	2000
Appearance: Janette Redd Williams, Attorney, for Trustees
of
the California State University.
Before Dyer, Amador and Baker, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Trustees
of
the California State University (CSU) from the appeals
assistant's denial
of
CSU's Opposition to Charging Party's Brief in Support
of
Appeal from
Partial Dismissal as untimely filed. 	CSU's opposition was mailed to PERB by regular first-
class mail on the filing due date
of
September 22, 20001 and was received on September 26.
On September 28, the appeals assistant denied the brief as untimely filed. 	On October 6, CSU
filed the instant appeal. The California Faculty Association did not file a response to this
appeal.
1 All dates refer to 2000.

DISCUSSION
In rejecting the document as untimely filed, the appeals assistant relied on PERB
Regulation 32135 subdivision
(a)2
which provides:
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 mailed by certified or Express
United States mail, as shown on the postal receipt
or
postmark, or
delivered to a common carrier promising overnight delivery, as
shown on the carrier's receipt, not later than the last day set for
filing and addressed to the proper PERB office.
Thus, had CSU's opposition been mailed by certified
or
express mail and postmarked
on or before September 22, it would have been accepted as timely filed.
PERB Regulation 32136 provides,
in
pertinent part, that "A late filing may be excused
in the discretion
of
the Board for good cause only."
	In
Trustees
of
the California State
University (1989) PERB Order No. Ad-192-H, this Board excused a technically late filing
based on secretarial error where unrefuted evidence indicated that the document was actually
mailed on the filing date, where the explanation
of
what occurred was not so unreasonable as
to be unbelievable, and where the opposing party had shown no actual prejudice resulting from
the one-day delay.
In the instant case, in an unrefuted declaration submitted by the attorney for CSU, she
states that the opposition in question was completed on September 21, and that her secretary
was to mail the brief on September 22. The attorney expected the opposition would be sent via
certified or express mail, in accordance with the office's policy to file documents with PERB in
such a manner. According to the attorney's declaration, her secretary has routinely taken care
2 PERB regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
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of
PERB filings for her in the past and, with the exception
of
the opposition in question, has
routinely mailed them by certified or express mail. The opposition was in fact mailed on
September 21, but was not mailed by certified or express mail.
CSU's unrefuted explanation
of
what occurred is not so unreasonable as to be
unbelievable. There is no evidence
of
prejudice resulting from the deficient filing.
Accordingly, we conclude that good cause exists for excusing the late filing and accept CSU's
opposition as timely filed.
ORDER
The Trustees
of
California State University's Opposition to Charging Party's
Brief
in
Support
of
Appeal from Partial Dismissal is hereby ACCEPTED as timely filed.
Member Dyer and Amador joined in this Decision.
3