International Union of Operating Engineers Local 39 (Irish) (PERB 1542M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN DAVID IRISH,
Charging Party,
V.
IUOE LOCAL 39,
Respondent.
Case No. SA-CO-10-M
PERB Decision No. 	1542-M
June 	30, 	2003
Appearance: John David Irish, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by John David Irish (Irish) of a Board agent's dismissal of his unfair
practice charge. The Board agent dismissed the charge after PERB failed to receive an
amended charge by the deadline set forth in the warning letter.
After reviewing the record in this matter, including the warning and dismissal letters,
and Irish's appeal, the Board reverses the Board agent's dismissal for the reasons set forth
below.
BACKGROUND
On December 12, 2002, the Board agent sent Irish a warning letter explaining that his
original charge failed to establish a prima facie violation of the Meyers-Milias-Brown Act
(MMBA). 1 The warning letter further explained that Irish could correct the deficiencies by
1 The l\1MBA is codified at Government Code section 3500 et seq.

submitting an amended charge
by
December 23, 2002. Irish was warned that his charge would
be dismissed
if
the Board agent did not receive an amended charge by December 23, 2002.
However, the warning letter did not direct Irish to "file" his amended charge or otherwise
direct his attention to PERB Regulation 32135.2 After the warning letter was served, Irish was
granted an extension until January 6, 2003, to submit an amended charge. Because the Board
agent did not receive an amended charge by January 6, 2003, the Board agent dismissed Irish's
charge on January
7,
2003.
APPEAL
In his appeal, Irish explains that he did, in fact, mail copies
of
his amended charge to
PERB. Irish alleges that he dropped the envelope containing the amended charge into the
drive-up mailbox at the South Land Park Post Office on January 4, 2003, at approximately
11
:00 a.m. After receiving the dismissal letter on January 8, 2003, Irish immediately called the
Board agent to explain the situation. Irish also called the post office and attempted to trace the
envelope containing his amended charge, but was unsuccessful.
The record before the Board reveals that Irish's amended charge was eventually
received by PERB on January 13, 2003. The amended charge contains a proper proof
of
2 PERB regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. PERB Regulation 32135(a) states, in pertinent part:
(a) All documents shall be considered "filed" when actually
received by the appropriate PERB office before the close of
business on the last date set for filing, or when mailed by certified
or Express United States mail, as shown on the postal receipt or
postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last
day set for filing and addressed to the proper PERB office.
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service, dated January 4, 2003. Although there is no apparent explanation for why the
amended charge was not delivered by the postal service until January 13, 2003, there is no
evidence that the amended charge was not mailed on January 4, 2003. 3
DISCUSSION
PERB Regulation section 32136 provides that the Board may excuse a late filing for good
cause.4 The Board has previously excused late filings which have gone astray. (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 Board has also excused filings which were
mailed to the proper office, but were not timely received. (The Regents
of
the University
of
California (Davis, Los Angeles, Santa Barbara and San Diego) (1989) PERB Order
No. Ad-202-H (secretary inadvertently sent documents by regular first-class mail, instead
ofby
certified mail which was standard practice); Trustees
of
the California State University (1989)
PERB Order No. Ad-192-H (incorrectly set postage meter caused exceptions to be untimely
filed).)
The Board has also excused late filings resulting from postal errors. In California School
Employees Association (Simeral) (1992) PERB Order No. Ad-233, the Board found good cause
to excuse a late filing caused in part by inadvertent action by the United States postal service. In
that case, the postal service held an incorrectly addressed filing before returning it to the
No declarations have been submitted disputing Irish's version
of
the facts.
4 PERB Regulation 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.
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charging party, making it impossible for him to correctly address and timely file a request for
reconsideration. In State
of
California (Department
of
Corrections) ( l 994) PERB Order
No. Ad-259-S, the Board again found good cause to excuse a late filing caused by a postal
service error. In that case, a party deposited documents in a mailbox at
11
:00 p.m. A notice on
the mailbox stated that mail deposited before 12:00 midnight would be postmarked with the
current date. However, the documents were postmarked the following day and thus rejected
as
untimely. On appeal, a postal service representative admitted the error and stated that the
documents should have been postmarked with an earlier date.
This case is similar to those discussed above. Irish made a conscientious attempt to
timely file his amended charge. The proof
of
service, which was signed under penalty
of
perjury, establishes that the amended charge was deposited in the mail on January 4, 2003.
Irish was also not informed whether or not PERB Regulation 32135 would apply.
Accordingly, the Board finds that good cause exists to excuse Irish's late filing
of
his amended
charge.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SA-CO-10-M and
REMANDS the case to Office
of
the General Counsel for further processing.
Member Whitehead joined in this Decision.
Member Neima's concurrence begins on page 5.
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NEIMA, Member, concurring: I agree with the majority's sound determination that
good cause exists to excuse John David Irish's (Irish) late filed amended unfair practice
charge. However, I respectfully submit that the following considerations are essential to
reaching that conclusion.
The Public Employment Relations Board (PERB or Board) generally excuses a late
filing where a non-prejudicial delay
of
short duration resulted from circumstances beyond the
control
of
the filing party or from excusable misinformation and where the filing party's
explanation was either credible on its face or was corroborated by other facts or testimony.
(See United Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325 at p. 4 and
citations therein.)
Irish claims he timely mailed his amended unfair practice charge. Corroborative
of
that
claim is the fact that Irish's amended charge was accompanied by a valid proof
of
service
signed under oath, in conformance with PERB Regulation 32140(a). Documents accompanied
by a valid proof
of
service, signed under penalty
of
perjury, are presumed to have been
properly served. (Evidence Code sec. 641; Glasser
v.
Glasser (1998) 64 Cal.App.4 th 1004 [75
Cal.Rptr.2d 621] (Glasser).) The party claiming that service was invalid bears the burden
of
rebutting the presumption
of
validity. (Glasser, pp. 1010 - 1011.) In addition,
"a
writing is
presumed to have been truly dated." (Evidence Code sec. 640.)
The most probative fact bearing on the presumed validity
of
the proof
of
service and its
date would have been the postmark on the envelope used to submit the appeal. Unfortunately,
that item was not retained by PERB. Irish should not be penalized for the agency's inadvertent
omission. Under these circumstances, the Board should adhere to the presumption
of
validity
afforded sworn proofs of service as well as the presumption that the document was truly dated.
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I note further that IUOE Local 39, who also was served by mail, had an opportunity
to
rebut Irish's explanation and the presumptions discussed above, but has not filed any objection
to Irish' s petition to excuse the late filing or challenged his explanation.
Taken together, the circumstances
of
this case provide good cause to excuse Irish's late
amended unfair practice charge.
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