Pasadena Community College District (PERB A234E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PASADENA COMMUNITY COLLEGE 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Petitioner,
and
CALIFORNIA TEAMSTERS 	PUBLIC,
PROFESSIONAL AND 	MEDICAL 	EMPLOYEES
LOCAL 	911, 	INTERNATIONAL 	BROTHERHOOD
OF 	TEAMSTERS, 	AFL-CIO,
Exclusive 	Representative.
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_____________________ )
Case No. 	LA-OB-119
(LA-D-270)
Administrative Appeal
PERB 	Order No. 	Ad-234
October 	21, 	1992
Appearance: 	Wohlner, 	Kaplon, 	Phillips, 	Vogel 	& Young, 	by 	John A.
Siqueiros, 	Attorney, 	for 	California 	Teamsters 	Public,
Professional 	and 	Medical 	Employees 	Local 	911, 	International
Brotherhood of 	Teamsters, 	AFL-CIO.
Before 	Camilli, 	Caffrey 	and 	Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	California 	Teamsters
Public, 	Professional 	and 	Medical 	Employees 	Local 	911,
International 	Brotherhood 	of 	Teamsters, 	AFL-CIO 	(Teamsters) 	of
the 	dismissal 	by a 	Board 	agent 	of 	the 	Teamsters' 	objections 	to 	a
decertification 	election 	conducted 	by 	PERB 	in 	the 	Pasadena
Community College 	District.
The 	Board 	agent 	dismissed 	the 	objections 	to 	the 	election
following 	the 	failure 	by 	the 	Teamsters 	to 	timely 	file 	a 	response

to 	an Order 	for 	Production 	of 	Documents 	and 	Legal Argument 	issued
by 	the 	Board 	agent.
FACTUAL 	SUMMARY
The 	Order 	for 	Production 	of 	Documents 	and 	Legal 	Argument was
served 	by 	mail 	on July 	3, 	1992 	and 	a 	response 	was 	due 	not 	later
than 	fifteen 	days 	from 	that 	date. 	Allowing 	for 	the 	appropriate
five-day 	extension, 1 the 	response 	was 	due 	to 	be 	filed 	in 	the
San 	Francisco 	PERB 	office 	by 	July 	23, 	1992.
2
PERB 	Regulation 	32132(b) 	requires 	that 	a 	party 	requesting
an 	extension 	of 	time, 	file 	the 	request 	in writing 	at 	least 	three
days 	before 	the 	expiration 	of 	the 	time 	required 	for 	filing.
1PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	Section 	32130(c)
states:
(c) 	The 	extension 	of 	time 	provided 	by
California 	Code 	of 	Civil 	Procedure 	section
1013, 	subdivision 	(a), 	shall 	apply 	to 	any
filing 	made 	±n 	resp~se 	to 	documents 	served
by 	mail.
2PERB 	Regulation 	section 	32132(b) 	states:
(b) 	A request 	for 	an 	extension 	of 	time within
which 	to 	file 	any 	document with 	a 	Board 	agent
shall 	be 	in writing 	and 	shall 	be 	filed 	with 	the
Board 	agent 	at 	least 	three 	days 	before 	the
expiration 	of 	the 	time 	required 	for 	filing. 	The
request 	shall 	indicate 	the 	reason 	for 	the 	request
and, 	if 	known, 	the 	position 	of 	each 	other 	party
regarding 	the 	extension. 	Service 	and 	proof 	of
service 	pursuant 	to 	section 	32140 	are 	required.
Extensions 	of 	time 	may 	be 	granted by 	the 	Board
agent 	for 	good 	cause 	only.
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Therefore, 	the 	Board 	agent 	determined 	that 	a 	request 	for 	an
extension 	must 	have 	been 	filed 	by 	July 	20, 	1992. 3
No 	response 	to 	the 	Order was 	received 	by 	July 	23, 	1992,
although 	a 	request 	for 	an 	extension was 	filed 	by 	Express 	United
States 	Mail 	on 	July 	24, 	1992. 	As 	a 	result, 	the 	Board 	agent
issued 	an Administrative 	Determination on July 	24, 	1992
dismissing 	the 	objections 	to 	the 	election.
TEAMSTERS' 	APPEAL
On 	appeal, 	the 	Teamsters 	assert 	that 	a 	response 	to 	the 	Board
agent's 	Order was 	filed 	on 	July 	23, 	1992 	by 	express 	mail, 	but
misdirected 	to 	PERB's 	Los 	Angeles 	office. 	The 	Teamsters 	argue
that 	the 	error 	of 	sending 	the 	response 	to 	the 	wrong 	PERB 	office
was 	an honest 	mistake 	since 	the 	Los 	Angeles 	office 	had 	conducted
the 	election 	in 	question.
The 	Teamsters 	further 	argue 	that 	the 	business 	agent who 	was
responsible 	for 	obtaining 	evidence 	of 	objectionable 	election
conduct 	in 	compliance with 	the 	Board 	agent's 	Order, 	experienced 	a
family 	emergency 	as 	the 	filing 	deadline 	approached, 	and 	as 	a
result, 	"was 	unable 	to 	either 	obtain declarations 	in 	support 	of
the 	Objections 	by 	July 	23, 	or 	give 	notice 	that 	she 	needed
additional 	time 	three 	days 	prior 	to 	the 	deadline."
3In 	denying 	the 	extension 	of 	time, 	the 	Board 	agent
incorrectly 	noted 	the 	deadline 	for 	filing 	an 	extension request.
PERB 	policy provides 	that an 	extension deadline 	is 	established
prior 	to 	including 	the 	five-day 	extension 	granted 	for 	filing 	by
mail. 	(PERB 	Regulation 	section 	32130.) 	No 	prejudice 	results
from 	this 	error, 	however, 	as 	the 	extension 	of 	time 	request 	was
filed 	after 	the 	deadline 	for 	filing 	a 	response 	to 	the 	Order.
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As 	a 	result, 	the 	Teamsters 	seek a 	reversal 	of 	the 	Board
agent's 	dismissal, 	and 	request 	that 	the 	Board 	excuse 	the 	late
filing 	of 	the 	request 	for 	an 	extension 	of 	time 	to 	allow 	the
Teamsters 	"to 	file 	declarations 	in 	support 	of 	its 	Objections."
DISCUSSION
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Pursuant 	to 	PERB 	Regulation 	section 	32136, 	the 	Board 	may
excuse 	a 	late 	filing 	for 	good 	cause 	only. 	The 	Board 	has
previously 	excused 	late 	filings 	which 	have 	been misdirected. 	In
North 	Orange 	County 	Regional 	Occupational 	Program 	(1990) 	PERB
Decision No. 	807, 	exceptions 	were 	filed 	well 	before 	the 	deadline,
but 	were 	inadvertently 	filed 	in 	the 	Los 	Angeles 	regional 	office,
rather 	than 	the 	Sacramento 	headquarters 	office. 	The 	North 	Orange
County 	Regional 	Occupational 	Program 	(NOCROP) 	explained 	that 	the
secretary 	generally 	submitted 	a 	large 	volume 	of 	filings 	with
PERB, 	usually with 	the 	Los 	Angeles 	office. 	In 	this 	case, 	through
force 	of 	habit, 	she 	filed 	the 	exceptions 	in 	Los 	Angeles. 	The
Board 	found 	that 	NOCROP 	attempted 	to 	file 	in a 	timely 	fashion,
but 	due 	to 	an 	honest 	mistake, 	the 	documents 	were 	filed 	in 	the
wrong 	office.
The 	Board 	has 	also 	excused 	filings 	which were 	mailed 	to 	the
proper 	office, 	but were 	not 	timely 	received. 	In The 	Regents 	of
the 	University 	of 	California, 	{Davis, 	Los 	Angeles. 	Santa 	Barbara
4PERB 	Regulation 	section 	32136 	states:
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.
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and 	San 	Diego) 	(1989) 	PERB 	Order 	No. 	Ad-202-H, 	the 	Board 	found
good 	cause 	to 	excuse 	the 	respondent's 	untimely 	filed 	opposition
brief. 	In 	an 	unrefuted 	declaration, 	the 	attorney 	stated 	that 	it
was 	the 	policy 	of 	his 	office 	to 	file 	documents 	with 	PERB 	by
certified mail, 	but 	his 	secretary 	inadvertently 	sent 	them 	by
regular 	first-class 	mail 	on 	the 	last 	day 	set 	for 	filing.
Similarly, 	in 	Trustees 	of 	the 	California 	State 	University 	(1989)
PERB 	Order No. 	Ad-192-H, 	the 	Board 	found 	the 	secretary's
explanation 	that 	the 	postage 	meter was 	incorrectly 	set 	causing
the 	exceptions 	to 	be 	untimely 	filed, 	constituted 	good 	cause.
This 	case 	is 	distinguishable 	from 	these 	cases 	in 	that 	the
response 	the 	Teamsters 	claim 	to 	have 	misdirected 	to 	the
Los 	Angeles 	office was 	never 	received. 	Furthermore, 	the 	request
for 	an 	extension was 	neither 	misdirected 	nor 	received 	late 	due 	to
mail 	processing problems 	- 	it was 	simply 	filed 	late.
The 	Teamsters 	assert 	that 	a 	response 	to 	the 	Board 	agent's
Order was 	filed 	by 	express 	mail 	to 	the 	Los 	Angeles 	PERB 	office 	on
July 	23, 	1992. 	The 	Los 	Angeles 	office, 	however, 	received 	no 	such
filing, 	and 	the 	Teamsters 	submitted 	no 	proof 	of 	service 	relating
to 	this 	filing 	or 	any 	further 	evidence 	that 	it 	ever 	occurred. 	As
a 	result, 	the 	Board 	concludes 	that 	no 	response 	was 	filed,
contrary 	to 	the 	assertion.
The 	Teamsters 	further 	claim 	that 	the 	illness 	of 	the 	mother
and 	husband 	of 	the 	business 	agent who 	was 	responsible 	for
obtaining 	evidence 	in 	support 	of 	the 	election 	objections
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prevented her 	from 	obtaining 	that 	evidence 	prior 	to 	the 	July 	23,
1992 	filing 	date. 	The 	Teamsters 	also 	assert 	that 	the 	business
agent 	could 	not 	anticipate 	the 	need 	for 	an 	extension by 	July 	20,
1992, 	the 	due 	date 	for 	any 	extension request.
The 	Board may 	excuse 	a 	late 	filing 	for 	good 	cause 	only. 	The
requirement 	that 	a 	request 	for 	an 	extension 	of 	time 	be 	filed 	at
least 	three 	days 	prior 	to 	the 	filing 	deadline 	is 	based 	on 	the
premise 	that 	the 	need 	for 	an 	extension 	should 	be 	anticipated 	by
the 	requesting 	party. 	Therefore, 	for 	good 	cause 	to 	be 	found, 	a
party's 	late 	filing 	of 	a 	request 	for 	an 	extension 	of 	time 	should
be 	based 	on 	circumstances 	that 	are 	unanticipated 	and 	beyond 	the
party's 	control.
The 	business 	agent 	indicates 	in her 	declaration 	that 	she
had 	spent a 	great 	deal 	of 	time 	and 	energy 	caring 	for 	her 	mother
from 	approximately 	July 	12, 	1992 	through 	the 	filing 	deadline.
Although 	her 	mother's 	illness 	may 	have 	been beyond 	her 	control,
the 	fact 	that 	so 	much 	time 	was 	necessary 	to 	care 	for 	her 	made 	it
possible 	to 	anticipate 	on 	or 	before 	July 	20, 	1992 	that 	a 	request
for 	an 	extension 	of 	time 	would 	be 	needed.
Given 	the 	unsubstantiated 	assertion 	that 	a 	response 	was
filed 	but misdirected, 	and 	the 	fact 	that 	the 	need 	to 	request 	an
extension 	should have 	been 	anticipated 	prior 	to 	the 	July 	20
deadline, 	the 	Board 	concludes 	that 	good 	cause 	does 	not 	exist 	to
excuse 	the 	late 	filing 	of 	that 	request.
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ORDER
The 	Teamsters' 	appeal 	of 	the 	Board 	agent's 	dismissal 	of 	its
election objections 	is 	hereby 	DENIED. 	The 	Board 	hereby 	directs
the 	regional 	director 	to 	certify 	the 	results 	of 	the
decertification 	election.
Members 	Camilli 	and 	Carlyle 	joined 	in 	this 	Decision.
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