PERB Order No. A052S•State of California (California State Communications Association) (PERB A052S)
State of California (California State Communications Association) (PERB A052S)
PERB Order No. A052SCalperb2 gen 1979
Testo completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA STATE COMMUNICATIONS ASSOCIATION, Employee Organization,, and STATE OF CALIFORNIA, Employer. ) ) ) ) ) ) ) ) ) ) ______________________ ) Case No. S-R-55-S PERB Order No. Ad- 52-S Administrative Appeal January 2, 1979 Appearances: Dale Buchholz, Secretary/Treasurer, for California State Communications Association. Before G~uck, Chairperson; Gonzales and Cossack Twoh~y, Members. DECISION This case is before the Public Employment Relations Board (hereafter PERB or Board) on an appeal by the California State Communications Association (hereafter Association) from a decision by the Executive Director to dismiss as untimely filed its petition to determine an appropriate unit. The Board affirms the Executive Director's decision. DISCUSSION The Association sought to file a petition covering approximately 165 state telecommunications employees. This petition was received in the Sacramento Regional Office at 8:15 a.m. on September 1, 1978. Under PERB rules and regulations, petitions to determine an appropriate unit under the State Employer-Employee Relations
Act 1 not received by the Sacramento Regional Office before the end of the working day on August 31, 1978, shall be dismissed as untimely filed. 2 The Association's petition was not received until September 1, 1978. PERB rule 32133 states: A late filing may be excused in the discretion of the Board only under extraordinary circumstances. 1The State Employer-Employee Relations Act (hereafter SEERA) is codified at Government Code section 3512 et seq. 2PERB rules are codified at California Administrative Code, title 8, section 3110 et seqe PERB rule 41010(a) provides: An employee organization may file a petition to determine an appropriate unit not later than August 31, 1978. PERB rule 41010(d) provides: A petition to determine an appropriate unitof an employee organization shall not be considered complete or properly filed unlessthe requirements of this section and sections 41070 and 41080 have been timely met. PERB rule 41050 provides in pertinent part: If the Executive Director determines that the petition or supplementary submission is improperly filed ... the petition shall be dismissed. PERB rule 32135 provides: All documents shall be considered "filed" by a party when actually received by the proper recipient before the close of business on the last day set for filing. 2
This rule is applicable to both SEERA and the Educational Employment Relations Act (hereafter EERA)3. In Anaheim Union High School District,4 a case arising under EERA, the Board defined "extraordinary circumstances" as "out of the ordinary, remarkable, unpredictable situations or occurrences far exceeding the usual which prevent a timely filing." The Board finds no evidence of extraordinary circumstances in this case. Although the Association had approximately 60 days in which to file, its petition was mailed on August 31. A copy of the petition was delivered to the Board on September 1. In its appeal, the Association indicated that it had believed that if a petition was postmarked on August 31, it would be timely. A mistake about filing requirements under Boa~d rules does not constitute extraordinary circumstances excusing an untimely filing. The Board therefore affirms the dismissal of the Association's petition. This result works no undue hardship on the Association, since it can still participate in the SEERA unit determination hearings as a limited party under PERB rules 32165 and 411305 3The EERA is codified at Government Code section 3540 et seq. 4(7/17/78) PERB Order No. Ad-42. 5PERB rule 32165 states: Application to Join Hearing as a Limited Party. In a representation proceeding the Board agent may allow any person,employer, or employee organization which did not file a timely request for a recognition, intervention or petition to join the hearing as a limited party provided: 3
or as a party of interest under PERB rule 321666, provided that the requirements of these sections are timely met. (a) The person, employer, or employee organization files a written application prior to the commencement of the hearing stating facts showing that it has an interest in the proceedings; and (b) The Board agent determines that the person, employee organization or employer has a substantial interest in the case and will not unduly impede the preceding. PERB rule 41130 states: Limited Participation in Hearing. An original and three copies of any request for limited participation in thehearing made pursuant to section 32165 shall be filed in writing with the Sacramento Regional Office no later than seven days prior to the date of commencement of the hearing for which participation is requested. 6PERB rule 32166 states: Participation by Party of Interest. An employee organization may be allowed to participate in a representationhearing provided: (a) it has filed a written application; and (b) the Board agent determines that the organization has 10 percent support in a unit in dispute at the hearing; and (c) the Board agent determines that the organization willnot unduly impede the hearing; and (d) this participation is limited to discussion of issues raised by the petition, response therto, or question of representation. 4
ORDER The Public Employment Relations Board ORDERS that the Executive Director's decision to dismiss the petition to determine an appropriate unit filed by the California State Communications Association on September 1, 1978, is affirmed. y-y: Jaymond J/ G~zalesJ Member Har r.y i Gll}tlef, Cha irper sun I 5
STA?E Of c..i.Lll'02Nl.4 PUSUC !M;"LOYM!NT ltELATJONS BOARD Headquarters Oflke 923 12th Street, Suite 201 Socramento, California 95814(916) 322.3088 October 4, 1978 Mr. Dale Buchholz Secretary/Treasurer California State Communications Association 51 5 Cunn i ngha;,, '..Jay Woodland CA 95695 Subject: S-R-55 (SEERA) Dear Mr. Buchholz: EDMUHO G, UOWN Jli!., Cow.rfto, A copy of a petition to determine an appropriate unit filed pursuant to Section 41010 of ?ERB Rules and Regulations was received by the Sacramento Regional Office on September I, 1978, at 8:15 p.m. The petition was filed by the California State Communications Association for a unit composed of al employees I of the telecommunication technician classes as defined in the "?ay Sea Jes in the Cal lfornia State Civi 1 Service." Review of the petition has resulted in the administrative determination that the petition does not meet the requirements of Sections 32135 41010, 41050 and of the PERS Rules and Regulations, and is therefore dismissed pursuant to Sectio~ 41050 of PERS Rules and Regulations. Soard Ruie Section 4IOIO(a) provides: "An employee organization may a petition file to rletermine an appropriate unit not later than August 31, 1978. 11 Board Rule Section: 410IO(d) provides: "A petition to determine an appro- priate unit of an employee organization shall not be considered complete or properly filed unless the requirements of chis section and sections 41070 and · 4 l 080 have been time l'y met. 11 Soac·d Rule Section 41050 pr!'.:lvides: 11 lf the Executive Director deter· mines that the petition or supplementary submission is improperly filed or that the proof of support is inadequate the petitior. shall be dismissed.The petitioner may file an appeal to the Board itself within 10 days fol low- ing service of the dismissal notice." Board Rule Section 32135 provides: "Al 1 11 documents shall be considered filed" by a party when actually received by the proper recipient before the close of business on the last date set for fi I ing." In as much as your petition was not filed with the Sacramento Regional· Office until September 1, 1978, it is hereby dismissed as untimely.
' / ;;/ / / I Mr. Dale Buchholz October '4. 1978 2. You r;;;,iy wish to consider utilizing the other opportunities to partici· pate in the unit determination process pursuant to Sections•32l65, 11 Applica- tlon to Join Hearing as a Limited Party!' and 41130, "Limited Participation in Hearing, 11 or Section 32166, 11 Partidpation by Party of lnterest 11 in order to provide input to the unit dtermination process. After the PERB has comple- ted the unit determination process concerning the classifications you seek to represent, you may file a request to conduct an election pursuant to Section 41210 of the ?ERS Rules and Regulations. A copy of these sections isatt~ched for your information. As provided in Section 41050, an appeai of this decision may be made within 10 calendar days of service of this letter by filing a statement of the· facts upon which the appeal is based with the Board itself, to the atten- tion of the Executive Assistant to the Board, at 923 12th Street, Suite 201. Sacramento CA 95814. Such appeal must be actually received in the Headquarters Office by 5:00 p.m. on October 16, 1978. Should you file an appeal, the Board will serve c9pies of the document on al I petitioners and the Governor, Sincerely, Charles L. Cole Executive Director Enclosure CLC/tz
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