State of California (Water Resources Control Board) (Professional Engineers in California Government) (PERB A294S)

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.
)
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___________________ )
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