Barstow Unified School District (PERB A277E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
BARSTOW
	EDUCATION ASSOCIATION,
Charging
	Party,
v.
BARSTOW
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
Case
	No.
	LA-CE-3481
Administrative
	Appeal
PERB
	Order
	No.
	Ad-277
June
	12,
	1996
Appearances:	
Lawrence
	B.
	Trygstad, 	Attorney,
	for
	Barstow
Education Association;
	Atkinson,
	Andelson,
	Loya,
	Ruud	
& 	Romo
	by
Ronald
	C.
	Ruud,
	Attorney,
	for
	Barstow
	Unified
	School
	District.
Before 	Caffrey,
	Chairman;
	Garcia
	and 	Dyer,
	Members.
DECISION
GARCIA,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	a
	request
	by
	the
	Barstow
Unified
	School
	District
	(District) 	that
	the
	Board
	accept
	its
	late
filed
	response
	to
	Barstow 	Education
	Association's
	(Association)
exceptions 	to
	a
	proposed
	decision.
BACKGROUND
The
	Association
	filed
	a
	statement 	of 	exceptions 	to 	the
	PERB
administrative
	law
	judge's
	proposed
	decision
	on March 	7,
	1996.
According
	to
	PERE
	Regulation
	32310,
1	
including 	the 	five-day
1PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq.
	PERB
	Regulation
32310
	states:
Within
	20
	days 	following 	the 	date 	of 	service
of 	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
response 	shall 	be
	filed 	with 	the 	Board
	itself

extension
	provided
	by
	PERB
	Regulation
	32130(c),
	the
	District's
response
	was
	due
	to
	be
	filed
	no
	later
	than April
	1,
	1996.
2
Although
	the
	District's
	response
	was
	received
	by
	PERB's
Los
	Angeles
	regional
	office
	on 	March
	28, 	1996,
	according
	to
Regulation
	32310,
	the 	response 	should
	have
	been
	sent 	to
	PERB's
Sacramento
	headquarters
	office.
	The 	Los
	Angeles
	regional
	office
forwarded
	the
	District's
	response
	to
	the
	Sacramento
	headquarters
office,
	which
	received
	it
	on
	April
	3,
	1996 	(two
	days
	late).
	By
letter
	dated 	April
	4,
	1996,
	the
	PERB
	appeals
	assistant
	informed
the
·District 	that
	she
	was
	rejecting
	the 	response 	as 	untimely
filed.
in 	the 	headquarters
	office.
	The
	response
	may
contain
	a
	statement 	of
	any
	exceptions 	the
responding
	party
	wishes
	to 	take 	to 	the
recommended
	decision.
	Any
	such
	statement 	of
exceptions
	shall
	comply
	in
	form
	with 	the
requirements 	of 	Section
	32300.
	A
response 	to
such 	exceptions
	may
	be
	filed
	within
	20
	days.
Such
	response
	shall
	comply
	in
	form
	with 	the
provisions 	of
	this
	Section. 	Service
	and
proof 	of 	service 	of 	these
	documents
	pursuant
to 	Section
	32140
	are 	required.
DISTRICT'S
	APPEAL
The
	District
	appeals
	this
	rejection, 	stating 	that
	an
inadvertent 	error
	caused
	the
	response
	to
	be
	filed
	in
	the
	wrong
PERB
	office.
	According
	to 	the
	District,
	the
	error
	occurred
because 	the 	attorney
	who
	prepared 	the 	response
	was
	using
	a
computerized
	d~cument
	that
	contained
	a
	version
	of 	the 	proof 	of
2 PERB
	Regulation
	32135
	provides 	in 	pertinent 	part 	that
documents
	are 	"considered
	'filed'
	when
	actually 	received 	by 	the
appropriate
	PERB
	office 	before 	the 	close 	of 	business
	on
	the 	last
date 	set 	for 	filing.n
	(Emphasis 	added.)
2

Neither
	service
	with
	PERB's 	Los
	~.ngeles
	address
	on
	it.
	the
attorney
	nor
	his 	secretary
	noticed 	the
	error
	and
	the
	response
	was
mailed
	to
	the 	address
	indicated
	on
	the
	proof
	of
	service.
	The
District
	claims
	that
	the 	Association
	was
	not
	prejudiced
	by
	the
delay, 	since 	the 	Association
	was
	served with
	its
	copy
	of
	the
document
	before 	the
	filing
	deadline;
	it
	was
	only
	PERB's
	copy
	that
failed
	to
	reach 	the 	proper
	destination
	before
	the
	deadline.
	The
District
	requests
	the
	Board
	excuse
	its
	error, 	citing
	North
	Orange
Occupational
	Program
	(1990)
	PERB
Decision
	No. 	807
County
	Regional
(North 	Orange),
	in
	which
	the
	Board
	excused
	a
	late 	filing 	that
	was
timely 	received
	in
	the
	wrong
	PERB
	office.
Association
	District's
	The
	filed
	a
	brief
	reply 	to
	the
appeal,
	but
	it
	does
	not
	expressly 	request
	that
	the
	Board
	reject
the
	late 	filing,
	nor
	does
	it
	claim
prejudice.
DISCUSSION
PERB
	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
	sole
	is
	good
	cause
	issue
	whether
	the
	District
	has
	shown
for 	the
	Board
	to
	excuse
	its
	late 	filing.
	The
	Board has 	€xcused
various 	types 	of 	"honest mistakes" 	involving
	clerical
	or mailing
errors.
3 	As
	the
	District 	correctly points 	out,
	in
	North 	Orange
3
See
	e.g.,
	University 	of 	California,
	Los 	Angeles 	(1992)
	PERB
Decision
	No. 	961-H
	(late 	filing
	excused due
	to 	inadvertent
when
matter
	still
	pending 	and
	there
	was 	no
clerical 	error,
prejudice 	to 	opposing 	counsel); 	California
	School 	Employees
Association 	(Simeral) 	(1992) 	PERB
	Order No. 	Ad-233
	(late 	filing
excused 	due 	to 	incorrect 	address 	and
	postal 	delay). 	See
	also,
3

were
	PERB
	excused
	a
	late 	filing
	under 	circumstances
	that
	very
similar
	to
	those
	in
	the
	instant
	case.
Board
	San 	Diego Adult 	Educators
	v. 	Public
	Employment
	Relations
(1990) 	223
	Cal.App.3d 1124, 	1131-1132
	[273
	Cal.Rptr. 	53],
	in
which
	the
	Court 	of 	Appeal 	upheld
	PERB's
	decision 	to 	allow
	late
service 	of 	an
	unfair practice
	charge 	since 	there
	was 	no 	showing
of 	prejudice 	to 	the 	respondent.
discretion
	The
	Board
	has,
	and
	should 	continue
	to
	have, 	broad
to
	weigh
	numerous
	factors:
on
	a
	case
	by
	case
	basis
	when
considering
	a
	request
	to
	excuse
	a
	late 	filing
	for
	good
	cause.
	If
the
	excuse
	offered
	for
	the 	delay
	is
	reasonable
	and
	credible,
	the
Board
	then
	asks 	whether
permitting
	a
	late 	filing
	would
	be
prejudicial
	to
	the
	opposing
	party.
4
and
	The
	District
1 s
	excuse
	for
	Iiling
	late 	is
	reasonable
credible"
	Modern
	law
	offices
	commonly
	use 	computerized
	documents
to 	create
	other
	documents, 	and
	it
	is
	apparent
	that 	this
	was
	an
There
	is
	no
	honest 	mistake
	that 	resulted 	in
	a
	missed
	deadline.
indication 	that
	the 	delay
	could
	have 	been
	anticipated
	beforehand,
so
	the
	District
	had 	no
	duty
	to 	request
	an
	extension
	of
	time. 
by
	The
	Association
makes 	no
	claim
	to
	have 	been
	prejudiced
the
	late
	filing,
	and
	we
	see
	no
	other 	indication
	of
	prejudice.
Although
	tt~ 	filing
	with
	PERB
	was 	two
	days
	late,
	it
	appears
	that
the 	Associatio·n
	hao.
	timely
	knowledge
	of 	the 	contents
	of
	the
response 	since 	the 	Association
	actually
	received
	its
	copy
	of 	the
response 	before 	the 	deadline. 	Additionally, 	the
	District's
4
See,
	e.g., 	State
	of 	California
	(Department 	of
	Youth
Authority)
	(1996) 	PERB
	Order
	No. 	Ad-275-S 	(good 	cause 	to 	excuse
one-year 	delay 	not
	shown;
	excusing 	delay 	would
	place
	undue 	burden
on other 	party); 	see 	also, 	California 	State
	Employees
	Association
(Janowicz) 	(1996) 	PERB
	Order No. 	Ad-276-S.
4

document was filed in response to exceptions initiated by the
Association, so the Association clearly knew about the pending
status of the case. We find that good cause to excuse this late
filing has been shown.
ORDER
The Barstow Unified School District's request to accept its
late filed brief in opposition to the Barstow Education
Association's exceptions in Case No. LA-CE-3481 is hereby
GRANTED.
Chairman Caffrey and Member Dyer joined in this Decision.
5