San Bernardino Superior Court (PERB A416C)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
v.
SAN BERNARDINO COUNTY SUPERIOR
COURT,
Respondent.
Case No. LA-CE-43-C
Administrative Appeal
PERB Order No. Ad-416-C
August 26, 2014
Appearance: Atkinson, Andleson, Loya, Ruud & Romo by Jay
G.
Trinnaman, Attorney, for
San Bernardino County Superior Court.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the San Bernardino County Superior Court (Court)
of
an
administrative determination by the Appeals Assistant that its response to the statement
of
exceptions by Service Employees International Union, Local 721 (SEID) was not timely filed.
BACKGROUND
On May 14, 2014, PERB's Appeals Assistant notified the Court by letter that because it
had been served with SEIU's statement
of
exceptions by facsimile on April 14, 2014, and
because PERB Regulation 32130(c)1 does not allow for an extension
of
the 20-day period for
filing a response to documents that are served in person or by facsimile, the deadline for filing
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

its response to SEIU's exceptions was May
5,
2014.2 Because the Court's response to SEIU's
exceptions was not filed with PERB until May
8,
2014, the Appeals Assistant denied the
Court's response
as
untimely filed.
The Court was informed that it could appeal the Appeals Assistant's determination to
the Board itself within ten (10) days pursuant to PERB Regulation 32360. The Court timely
filed an appeal
of
the administrative determination on May 22, 2014. SEIU did not file an
opposition to the Court's appeal.
On appeal, the Court maintains that SEIU's facsimile service
of
its statement
of
exceptions was illegible and therefore defective. The Court admits that it received a legible
electronic version
of
SEIU's statement
of
exceptions via e-mail on April 15, 2014, but claims
that it had never formally agreed to accept service via e-mail in accordance with PERB
Regulation 32140(b)(l). Therefore, according to the Court, the only perfected manner
of
service
of
SEIU's exceptions was via U.S mail on April 14, 2014, which extended the deadline
for its response by five (5) days in accordance with PERB Regulation 32130(c). Therefore,
according to the Court, the correct deadline for submitting its response was May 9, 2014, and it
timely filed its response on May
8,
2014.
We have reviewed the entire record in this matter. For the reasons set forth below, we
reverse the Appeals Assistant's determination.3 We find that the only perfected manner
of
service
of
SEIU's statement
of
exceptions was by U.S. mail. Therefore, the Court was entitled
2 Since the 20-day period for filing a response to a document served on April 14, 2014,
would have fallen on Sunday, May 4, 2014, the final date for filing was actually Monday,
May 5, 2014.
3 PERB' s Appeals Assistant was not informed of the defective facsimile service of
SEIU' s statement of exceptions. Her administrative determination was based on the
assumption that facsimile service was perfected by SEIU and her calculation of the relevant
filing deadline was correct under PERB' s regulations for perfected facsimile service.
2

to the extra five (5) days pursuant to PERB Regulation 32130(c) to file its response in Case
No. LA-CE-43-C.
DISCUSSION
With its appeal, the Court proffers the declaration
of
Jay
G.
Trinnaman (Trinnaman),
authenticating the April 14, 2014, facsimile transmission
of
SEIU' s statement
of
exceptions
and proof
of
service. Trinnaman avers both that portions
of
SEIU's statement
of
exceptions
were illegible and that SEIU's proof
of
service by facsimile failed to comply with PERB
Regulation 32135(d). Specifically, avers Trinnaman, SEIU's proof
of
service: (1) did not
indicate the number
of
pages being transmitted as required by PERB Regulation 32135(d)(2);
(2) did not include the time
of
transmission
as
required by PERB Regulation 32135(d)(3); and
(3) did not include the PERB case number as required by PERB Regulation 32135(d)(4).
Trinnaman also avers that on April 15, 2014, he informed SEIU by e-mail that the
facsimile transmission was illegible, and that in response he received later that day an
electronic version
of
SEIU's statement
of
exceptions as an e-mail attachment. The Court
contends, however, that it had not formally agreed to accept electronic service
of
documents in
this matter and therefore SEIU was not permitted to use electronic service.
SEIU submitted neither opposition nor documentation in response to the Court's appeal
and the Trinnaman declaration.
The Court is incorrect in its assertion that it must formally agree to electronic service.
PERB Regulation 32140(b) states that there are two methods by which a party agrees to accept
electronic service
of
documents. The first method is by serving notice on all parties that it will
accept electronic service of documents in that matter. The Court correctly asserts that it has
not served such notice in this case. However, a party also agrees to accept electronic service in
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a case by electronically filing any document with the Board.4 (PERB Reg. 32140(b)(2).) The
Court has electronically filed at least three documents with the Board in this case: its initial
position statement (electronically filed on October 29, 2013); its supplemental position
statement (electronically filed November
6,
2013); and its reply in support
of
its motion for
summary judgment (electronically filed February 24, 2014). Thus, we conclude that pursuant
to PERB Regulation 32140(b)(2), the Court has availed itself
of
electronic filing and thus has
agreed to accept electronic service
of
documents filed in this case.
However, our analysis does not end there. SEIU did not file proof
of
electronic service
of
its statement
of
exceptions and SEIU has not argued that it properly served the statement
of
exceptions electronically on April 15, 2014. The only proof
of
service filed with PERB by
SEIU concerns the April 14, 2014, service by facsimile and U.S. mail. We are thus unable to
determine whether SEIU's April 15, 2014, electronic service
of
its statement
of
exceptions
complied with PERB Regulation 32135(d). We conclude that SEIU's facsimile service was
incomplete and thus that SEIU perfected service
of
its exceptions on the Court on April 14,
2014, only by U.S. mail. Under PERB Regulation 32130(c), a "five day extension
of
time
shall apply to any filing made in response to documents served by mail
if
the place
of
address
is within the State
of
California." We conclude, therefore, that the deadline for submission
of
the Court's response to SEIU's statement
of
exceptions was twenty-five (25) days following
April 14, 2014, or May 9, 2014. Since the Court's response was filed with PERB on May 8,
2014, the response was timely filed.
4 In our regulations, '"Board' means the five-member Public Employment Relations
Board, any individual Board member or any Board agent." (PERB Reg. 32020, emphasis
added.)
4

ORDER
The Public Employment Relations Board Appeals Assistant's administrative
determination in Case No. LA-CE-43-C is hereby REVERSED. The San Bernardino County
Superior Court's response to Service Employees International Union, Local
721
's
statement
of
exceptions is deemed timely filed.
Chair Martinez and Member Banks joined in this Decision.
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