Los Angeles Unified School District (PERB A334E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHERYL HENDERSON,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4535-E
Administrative Appeal
PERB Order No. Ad-334
April 12, 2004
Appearances: Cheryl Henderson on her own behalf; Scott Barer, Associate General Counsel,
for Los Angeles Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on request by Cheryl Henderson (Henderson) that the Board excuse her late-
filed appeal or, alternatively, on appeal of an administrative determination that her appeal in
the above-named matter was untimely filed.
The Board agent’s dismissal of Henderson’s unfair practice charge was served on
August 12, 2003.1 The dismissal letter fully explained the procedures for filing an appeal.
Under PERB Regulation 32635(a)2, Henderson had 20 calendar days to file an appeal of the
dismissal. The appeal was therefore due to be filed in the Board’s headquarters office no later
1Unless otherwise noted, all dates refer to 2003.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.

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than close of business September 8.3 On September 11, PERB’s San Francisco regional office
received a letter dated August 18 and postmarked on September 9. The regional office
forwarded the letter to headquarters where it was filed with the Board on September 16. By
letter dated September 24, the Appeals Assistant informed Henderson that the August 18 letter
did not refer to case numbers or include a proof of service, and were not timely filed. The
Appeals Assistant also advised Henderson that she had 10 days to appeal the administrative
determination to the Board itself (due October 9) or, alternatively, could file a request with the
Board to excuse the late filings.
On October 8, 2003, Henderson filed what appears to be an amended charge in this
matter and for Case No. LA-CO-1144-E, a companion case. By letter dated October 9, 2003,
the Appeals Assistant reminded Henderson of the September 24 letter and noted that if
Henderson wanted the amended charges accepted as an appeal, she would have to file a request
with the Board to accept the late filings. The Appeals Assistant further warned Henderson that
the documents must be filed by October 23 or both cases would be closed.
In both the September 24 and October 9 letters, the Appeals Assistant explained all
pertinent procedures and regulations to Henderson regarding filing, service and proof of
service and suggested that Henderson call if she had any questions.4
On October 23, Henderson filed a letter with the Board asking the Board to rehear both
matters. In this letter, she stated that she does not understand the procedures for filing appeals
3PERB Regulation 32130(c) allows for a five-day extension of time for any filing made
in response to documents such as the dismissal, which are served by mail within California.
September 8, therefore includes this five-day extension.
4There is no notation in the record that Henderson ever called the Appeals Assistant for
help.
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and proof of service. She further requests to be at all meetings for determining her cases and
notes that she has been unable to retain an attorney.
On November 10, the Los Angeles Unified School District (District) filed a response to
Henderson’s filings. The District asserts that Henderson did not show good cause to excuse
the late filings, as required by PERB Regulation 32136. If Henderson was attempting to file an
administrative appeal, she did not follow the requirements of PERB Regulation 32635 by filing
within 20 days of the dismissal of her action and by failing to serve the District. The District
finally argues that even if Henderson had timely filed an appeal of the dismissal and properly
served the appeal, under PERB Regulation 32635(b), she cannot raise new allegations or new
supporting evidence in the appeal. The District did not identify what new allegations it was
referring to or discuss any prejudice arising out of the late filings.
By email and letter dated November 14, Henderson sent a letter to General Counsel
Bob Thompson asking the status of her charges. On November 25, the Appeals Assistant
attempted to call Henderson at the phone number listed on the November 14 letter, but
Henderson’s phone had been disconnected. By letter of November 25, the Appeals Assistant
responded that the cases were pending before the Board.
DISCUSSION
Under PERB Regulation 32136, a late filing may only be accepted for good cause. The
Board has found good cause in a variety of situations where the justification was “reasonable
and credible.” (Barstow Unified School District (1996) PERB Order No. Ad-277 (Barstow);
State of California (Department of Transportation) (2003) PERB Order No. Ad-326-S
(Transportation).) This means that, looking at the surrounding circumstances, it is evident that
the party made a conscientious effort to timely file and the delay caused no prejudice to any
party in the case. (United Teachers of Los Angeles (Kestin) (2003) PERB Order No. Ad-325.)
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The Board has deemed “honest mistakes,” such as mailing and clerical errors, to show good
cause. (Barstow; Transportation.) However, in cases in which the Board has found good
cause, the filings were at most a few days late. (See e.g., State of California (Department of
Forestry and Fire Protection) (1998) PERB Order No. Ad-286-S; Barstow; North Orange
County Regional Occupational Program (1990) PERB Decision No. 807; Trustees of the
California State University (1989) PERB Order No. Ad-192-H; The Regents of the University
of California (Davis, Los Angeles, Santa Barbara and San Diego) (1989) PERB Order No.
Ad-202-H.) If the Board finds the justification to be “reasonable and credible,” then the Board
evaluates whether there is prejudice to the opposing party in excusing the late filing. (Barstow;
Transportation.)
We know of no cases where the Board has excused a late filing in which the party states
that she misunderstood the procedures but did not demonstrate any effort to understand the
procedures. (Compare Los Angeles Unified School District (2003) PERB Order No. Ad-318.)
There have been cases in which late filings were excused in which the filing was inadvertently
sent to the wrong office. (See e.g., North Orange County Regional Occupational Program
(1990) PERB Decision No. 807.) In this case, not only was the August 18 letter sent to the
wrong office but it neither identified case numbers nor showed evidence of being served on the
District. Consequently, the first documents correctly filed with the Board were the amended
charges received by the Board on October 8, approximately one month after the original
deadline to file an appeal. There is no evidence in the record of any attempt by Henderson to
contact the Appeals Office for assistance with the timelines and service procedures. The
August 12 dismissal letters also fully explained the procedures and requirements for filing
appeals, service and requesting an extension of time. There is no evidence that Henderson
requested an extension or sought assistance from any Board staff to timely and properly file
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her appeal. Whether the filed documents comprise an administrative appeal under PERB
Regulation 32360 or a request to excuse late-filed documents under PERB Regulation 32136,
none of Henderson’s filings show any efforts to timely or properly file the appeals.
Henderson’s only explanation is that she does not understand the Board’s procedures. We find
this explanation insufficient to show good cause to excuse her appeal. We conclude that
Henderson has not provided good cause to excuse her late-filed appeals and deny her request to
accept the late-filed documents or alternatively, dismiss the appeal of the administrative
determination.
ORDER
Cheryl Henderson’s request that the Board accept her late-filed documents or,
alternatively, grant her appeal of an administrative determination in Case No. LA-CE-4535-E,
is hereby DENIED.
Chairman Duncan and Member Neima joined in this Decision.
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