California State Employees Association (Janowicz) (PERB A276S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD	
:	
-~
FRANK
	D. 	JANOWICZ,
Charging
	Party,
v.
CALIFORNIA STATE
	EMPLOYEES
ASSOCIATION,
	LOCAL
	1000,
Respondent.
◄
l,t
•
.,.,
►
Case
	No.
	LA-CO-52-S
Administrative
	Appeal
PERB
	Order
	No. 	Ad-276-S
tfuy	
31, 	1996
Appearances: 	Frank
	D.
	Janowicz,
	on
	his
	own
	behalf;
	Michael
	D.
Hersh,
	Attorney,
	for 	California 	State
	Employees
	Association,
Local
	1000.	
·
Before 	Caffrey,
	Chairrnan;
	Garcia
	and
	Johnson,
	Members.
DECISION
GARCIA,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERE
	or
	Board)
	on
	a
	request
	by
	Frank
	D.
	Janowicz
(Janowicz)
	that
	the
	Board
	accept
	his
	late 	filed
	request
	for
reconsideration
	of
	the 	Board's 	decisions 	in 	California
	State
Employees
	Association,
	Local
	1000
	(Janowicz)
	(1994)
	PERB
	Decision
No.
	1043-S
	(CSEA
	(Janowicz)) 	and
	California 	State
	Employees
Association,
	Local
	1000
	(Janowicz)
	(1994)
	PERB
	Decision
	No.
1043a-S.
	After
	reviewing 	the
	entire
	record, 	including
	Janowicz
1 s
request
	and
	the 	response
	filed
	by
	California 	State
	Employees
Association,
	Local
	1000
	(CSEA),
	the
	Board 	hereby 	declines 	to
accept 	the
	late 	filing.
BACKGROUND
Janowicz 	alleged 	in
	CSEA
	(Janowicz)
	that
	CSEA
	had
	failed 	to
assist
	him
	in 	eliminating 	unfair 	labor 	practices 	directed 	at
	him

by
	his
	employer,
	conduct
	which
	allegedly 	constituted
	a
	breach
	of
the 	duty
	of
	fair
	representation 	in 	violation
	of
	section
	3519.5(b)
of
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
. 1 	On
	March
	25, 	1994,
	the
Board
	issued
	its
	decision
	in
	CSEA
	(Janowicz)
	in
	which
	it
	affirmed
a 	PERE
	administrative
	law
	judge's
	(ALJ)
	proposed
	decision,
dismissing
	Janowicz's
	complaint
	for
	failure
	to
	state
	a
	prima
facie
	case 	of
	a
	breach 	of
	the
	duty 	of
	fair
	representation.
PERB
	Regulation
	32410
2	
requires
	that
	a
	request 	for
reconsideration
	be
	filed
	with 	the
	Board
	within
	20
	days
	of
	service
of
	the 	decision.
	The
	filing
	deadline
	may
	be
	extended
	pursuant
	to
PERE
	Regulation
	32130(c) 	which
	provides
	a
	five-day 	extension 	for
documents
	filed
	by
	mail.
	Accordingly,
	a
	request 	for
reconsideration
	of
	the 	Board's
	decision
	in
	CSEA
	(Janowicz)
	was
due
	to
	be
	filed
	no
	later
	than 	April
	19, 	1994.
On
	January
	31, 	1996,
	Janowicz
	filed
	the
	instant
	request
	that
the
	Board
	accept
	his
	late 	filed
	reconsideration 	request.
	To
substantiate 	his 	request 	to
	excuse
	the
	late 	filing,
	Janowicz
states
	that
	the
	U.S. 	Equal
	Employment
	Opportunity
	Commission
1
The
	Dills
	Act
	is
	codified
	at
	Government
	Code
	section
	3512
et 	seq. 	Section
	3519.5
	provides, 	in 	part:
It
	shall
	be 	unlawful
	for
	an 	employee
organization 	to:
(b)
	Impose
	or 	threaten 	to
	impose
	reprisals
on 	employees,
	to 	discriminate 	or 	threaten 	to
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.
2

in
	(EEOC)
	recently
	issued
	a
	ruling
	on
	charges
	he
	filed
	1992
which,
	according
	to
	Janowicz, 	"proves 	Charging
	Party's
	claim
	of
retaliation
	[by
	his
	employer].
"3	
Janowicz
	now
	asserts 	that
	the
EEOC's
	recent
	"finding"
	justifies
	the 	Board's
	reconsideration
	of
CSEA
	(Janowicz)
.
DISCUSSION
PERE
	Regulation
	32136
	provides
	that:
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's 	previous
	decisions
	which
	apply
	this
	regulation
concern
	problems
	related
	to
	the
	mechanical
	process
	of
	primarily
filing
	documents
	with
	PERE.
	In
	California
	School
	Employees
Association
	(Simeral)
	(1992)
	PERB
	Order
	No.
	Ad-233,
	the
	Board
late 	filing
	that
	was
	inadvertently
	misaddressed
	and
	excused
	a
delayed
	by
	the
	postal 	service.
	In
	Regents 	of 	the
	University
	of
California
	(Davis,
	Los
	Angeles. 	Santa 	Barbara
	and 	San Diego)
(1989)
	PERB
	Order
	No.
	Ad-202-H,	
the
	Board
	excused	
=>
\,,..,L	
-Filinrr	...
_,_
_,_ ............
::::i	
t-h;:::it-	
.............
.__
--
was
	inadvertently 	sent
	by
	regular
	mail
	rather
	than
	by
	certified
mail;
	and,
	in 	Trustees 	of 	the 	California 	State 	University
	(1989)
due
	to
	an
	PERB
	Order
	No.
	Ad-192-H,
	the
	late 	filing
	was
	excused
inadvertent 	clerical 	error.
	By
	contrast,
	good
	cause
	was
	not
found
	in 	cases
	where
	the
	Board 	found
	that 	the 	party
	had
	failed
	to
3
In
	1992, 	Janowicz
	filed
	charges 	with 	the
	EEOC
	alleging 	that
he 	was
	laid 	off 	as
	a
	permanent
	intermittent 	teacher 	as
	a
	result
of 	age 	discrimination 	and
	in 	retaliation 	for 	filing 	prior 	charges
against 	the
	CYA
	with 	the
	EEOC.
3

make 	a 	conscientious 	effort 	to 	timely 	file 	or 	request 	an
extension 	of 	time.
This 	case 	more 	closely 	resembles 	unexcused 	cases 	because 	of
the 	reason 	Janowicz 	offers 	to 	justify his 	late 	filing: 	he 	waited
to 	file 	until 	he 	received 	a 	ruling 	from 	another 	forum 	involving
different 	statutes 	and 	different 	parties. 	While 	there 	is 	no 	PERE
precedent 	directly 	on 	point, 	it 	is 	helpful 	to 	look 	at 	factors
that 	California 	appellate 	courts 	have 	used 	in 	resolving 	late
filing 	requests. 	In 	general, 	the 	cases 	hold 	that 	if 	an 	excuse 	is
reasonable 	and 	credible, 	the 	court 	will 	then 	focus 	on 	whether
permitting 	a 	late 	filing 	would 	be 	prejudicial 	to 	the 	opposing
party. 4 	PERB's 	opinions 	have 	been 	consistent 	with 	the 	court
4 See, 	e.g., 	Putnam v. 	Clague 	(1992) 	3 	Cal.App.4th 	542
[5 	Cal .Rptr.2d 	25] 	(Putnam), 	which 	discussed 	the 	need 	to 	weigh
all 	factors. 	The 	court 	gave 	great 	weight 	to 	the 	fact 	that 	the
defendant 	had 	not 	shown 	actual 	prejudice 	from 	the 	delay and 	held
that:
If 	the 	excuse 	is 	credible 	and 	not 	clearly
unreasonable 	... 	the 	court 	should 	consider
all 	other 	factors, 	including 	prejudice 	to 	the
defendant, 	before 	ordering 	dismissal ..
[Id. 	at 	557.] 	.
Furthermore, 	the 	court 	refused 	to 	imply 	prejudice 	to 	the
defendant 	from 	a 	mere 	delay 	in 	service, 	since 	prejudice may 	be
inferred 	only 	from 	an 	unjustified 	and 	protracted 	delay 	in
service, 	particularly 	when 	the 	defendant 	has 	actual 	knowledge 	of
existence 	of 	the 	action. 	Discussing 	the 	defendant's 	failure 	to
show 	prejudice, 	the 	court 	noted 	that 	the 	defendant 	could 	not 	show
that 	a 	single 	item 	of 	evidence 	was 	lost 	due 	to 	the 	delay, 	nor
that 	a 	single 	witness 	was 	unable 	to 	recall 	material 	events: 	"All
he 	has 	actually 	shown 	is 	that 	time 	has 	passed. 	and 	'the
trial 	court 	may 	not 	presume 	prejudice 	simply by 	the 	passage 	of
time.'" 	[Id. 	at 	565-566; 	citations 	omitted.]
4

cases
	on
	this
	point.
5 	One
	reason
	courts 	are 	willing 	to 	exercise
is
	the
	well-established 	doctrine
	that
	an
leniency 	in
	this
	area
defects 	to
appellate
	body
	is
	reluctant 	to
	permit
	minor
	procedural
preclude
	an
	examination 	of
	a
	controversy
	on
	its
	merits.
6
were
	deciding
	In
	case,
	factors 	in
	this
	the
	following
	weighed
that
	good
	cause 	has
	not
	been
	shown.
	First,
	Janowicz
	made
	no
conscientious
	effort
	to
	file
	on
	time
	or 	request
	an
	extension
	of
time;
	in 	fact,
	this
	request
	comes
	almost
	two
	years
	after
	the
deadline.
	the
	merits
	of
	CSEA
	(Janowicz) 	were
	fully
	Second,
considered
	by
	the
	ALJ
	and
	a
	decision
	was
	issued
	in
	favor 	of
	CSEA.
Third,
	in 	California 	State
	Employees
	Association,
	Local
	1000
(Janowicz)
	(1994)
	PERB
	Decision
	No.
	1043a-S,
	PERB
	denied
Janowicz's 	request 	for 	reconsideration
	of
	CSEA
	(Janowicz)
	because
that
	request
	merely
	restated
	arguments
	previously 	considered
	and
rejected
	by
	the
	Board
	in
	its
	underlying
	decision.
	To
	reconsider
a
	decision
	rendered
	those
	arguments
	years
	later,
	because 	of
	by
5
See,
	for
	example,
	University
	of
	California,
	Los
	Angeles
(1992)
	PERE
	Decision
	No.
	961-H, 	where
	the
	Board
	allowed
	a
	late
prejudice
filing
	because,
	among
	other 	reasons, 	doing 	so 	posed
	no
to
	opposing 	counsel.
	See
	also,
	San Diego Adult 	Educators 	v.
Cal.App.3d 	1124,
Public
	Employment
	Relations
	Board
	(1990) 	223
1131-1132
	[273
	Cal.Rptr. 	53],
	in
	which
	the
	Court 	of
	Appeal
	upheld
PERB's
	decision 	to
	allow
	late
	service
	of 	an
	unfair 	practicerespondent.	since 	there
	was 	no 	showing
	of 	prejudice 	to 	the
	charge
6
See 	Pesce 	v. 	Dept. 	Alcoholic
	Bev.
	Control
	(1958) 	51
	Cal.2d
310,
	313 	[333
	P.2d 	15]. 	This
	principle 	is 	also
	followed
	in
administrative 	agencies.
	Gibson v.
	Unemployment
	Ins. 	Appeals
	Bd.
(1973)
	9
	Cal.3d
	494 	[108
	Cal.Rptr.
	1]
	discusses 	cases 	which 	hold
good 	cause
	is
	shown
	for 	relief
	from 	an 	appeal
	that
	"whether
deadline
	depends 	upon
	the 	factual 	circumstances 	of 	each 	case."
(Id.
	at
	498, 	fn. 	5;
	citations 	omitted.) 	See
	also, 	Flores 	v.
Unemployment
	Ins. 	Appeals 	Bd. 	(1973) 	30
	Cal.App.3d
	681
[106
	Cal.Rptr. 	543)). 
5

another
	forum
	under
	provisions
	of
	a
	different
	statute,
	where
there
	is
	no
	connection 	with
	PERB's
	decision
	in
	CSEA
	(Janowicz),
would 	be 	unduly
	burdensome
	to
	CSEA
	and
	we
	exercise
	our
	discretion
against
	excusing
	the
	late 	filing.
ORDER
Frank
	D.
	Janowicz's 	request
	to
	accept
	his
	late 	filed
	request
for 	reconsideration
	of
	the 	Board's
	decision 	in 	California
	State
Employees
	Association,
	Local
	1000
	(Janowicz)
	(1994)
	PERB
	Decision
No.
	1043-S 	and
	California 	State
	Employees
	Association,
	Local
	1000
(Janowicz)
	(1994)
	PERB
	Decision
	No.
	1043a-S
	is
	hereby
	DENIED.
Member
	Johnson
	joined
	in
	this
	Decision.
Chairman
	Caffrey's
	concurrence 	begins
	on
	page 	7.
6

of
	CAFFREY,
	Chairman,
	concurring:
	I
	concur
	in
	the
	denial
the 	request
	by
	Frank
	D.
	Janowicz
	(Janowicz)
	that
	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	accept
	his
	late 	filed
request
	for
	reconsideration
	of
	the 	Board's
	decision
	in 	California
State
	Employees
	Association,
	Local
	1000
	(Janowicz)
	(1994)
	PERB
to
	Decision
	No.
	1043-8
	(CSEA
	(Janowicz)).
	I
	write 	separately
state
	clearly
	the
	reasons
	for
	my
	decision.
PERB
	Regulation
	32136
	provides,
	in 	pertinent 	part:
A
late 	filing
	may
	be 	excused
	in
	the
discretion
	of
	the
	Board
	for
	good
	cause
	only.
States
	Janowicz
	asserts 	that
	a
	recent 	ruling
	by
	the
	United
	Equal
Employment
	Opportunity
	Commission
	(EEOC)
	supports
	his 	allegation
that
	the
	California 	State
	Employees
	Association,
	Local
	1000
labor
	practices
	(CSEA)
	failed
	to
	assist
	him
	in
	eliminating .unfair
directed
	against
	him 	by
	the
	California
	Department
	of
	Youth
Authority
	(CYA)
	and,
	thereby 	breached
	its
	duty 	of
	fair
representation 	in 	violation
	of
	section
	3519.S(b) 	of
	the
	Ralph
	C.
Dills
	Act
	(Dills 	Act). 	In
	CSEA
	(Janowicz),
	the
	Board
	dismissed
Janowicz's
	unfair 	practice
	charge
	which
	was
	based
	on
	that
allegation.
	Janowicz
	argues
	that
	good
	cause
	exists 	to
	excuse
his 	late 	filed
	request 	for 	reconsideration
	because 	the
	EEOC
ruling
	only
	recently
	became
	available.
the
	The 	documents
	presented
	by Janowicz
	indicate 	that 	recent
EEOC
	ruling 	deals 	with
	his 	allegation 	that
	CYA
	retaliated 	against
him
	for 	filing
	a
	previous
	EEOC
	charge. 	Janowicz 	has 	provided
	no
information 	to 	indicate
	how
	that 	ruling 	is 	relevant 	to 	his
allegation 	before
	PERB
	that
	CSEA
	breached
	its
	duty 	of
	fair
7

representation 	to
	him
	in
	violation
	of
	the
	Dills
	Act.
	Therefore,
he
	has
	failed
	to
	demonstrate
	that
	good
	cause
	exists
	to
	excuse
	his
late 	filed
	request
	for 	reconsideration
	of
	the 	Board's
	decision 	in
CSEA
	(Janowicz)
8