State of California (California State Communications Association) (PERB A052S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	COMMUNICATIONS
ASSOCIATION,
Employee 	Organization,,
and
STATE 	OF 	CALIFORNIA,
Employer.
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______________________ )
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