Trustees of the California State University (PERB A432H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Res ondent.
Case No. LA-CE-1232-H
Administrative Appeal
PERB Order No. Ad-432-H
February 11, 2016
Appearance: Leslie V. Freeman, Labor Relations Manager, for Trustees
of
the California State
University.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Trustees
of
the California State University (University) from an
administrative determination (attached). In her administrative determination, PERB's Appeals
Assistant concluded that the University had not complied with the time limits set forth in
PERB regulations, when it filed its opposition to an appeal from dismissal
of
an unfair practice
charge brought by the California State University Employees Union (CSUEU) against the
University. 1 In the present appeal from the administrative determination, the University argues
that its failure to timely file its oppQsition papers should be excused for good cause, pursuant
to PERB regulations and decisional law. Alternatively, the University asks the Board to refuse
to consider CSUEU's appeal from dismissal
of
the unfair practice charge because CSUEU
1 Disposition of CSUEU's appeal from the dismissal/refusal to issue a complaint with
respect to the unfair practice charge is the subject of a separate, non-precedential decision of
the Board itself, pursuant to PERB Regulation 32320, subdivision (d). (PERB regulations are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.)

failed to serve its appeal on the University's designated representative
in
accordance with
PERB regulations. CSUEU has taken no position on the University's appeal from the
administrative determination.
We have reviewed the case file in this matter in its entirety and conclude that the
administrative determination was issued in accordance with PERB regulations and Board
precedent. We deny the University's appeal from the administrative determination and decline
to consider the University's untimely opposition to CSUEU's appeal in the underlying unfair
practice proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
PERB Regulation 32142 provides in relevant part that
if
the employer in an unfair
practice case is the Trustees of the California State University, the proper recipient for service is
"the Office
of
the General Counsel
of
the California State University." (PERB Reg. 32142,
subd. (c)(3)(C).) Since January 12, 2012, University Counsel Marc D. Mootchnik (Mootchnik)
has been the person designated by the University to receive unfair practice charges filed at all
campuses. 2 According to the letterhead
of
Mootchnik' s correspondence with PERB' s Office
of
the General Counsel, Mootchnik's street address is: Office of the General Counsel, 401 Golden
Shore, 4 th Floor, Long Beach, CA 90802-4210. According to Mootchnik's correspondence with
PERB, his email address is mmootchnik@calstate.edu.
On November 13, 2014, CSUEU filed an unfair practice charge alleging that the
University had violated various provisions of the Higher Education Employer-Employee
2 PERB may take official notice of matters within its own files and records. (Antelope
Valley Community College District (1979) PERB Decision No. 97, p. 23; see also Santa Clara
County Superior Court (2014) PERB Decision No. 2394-C, p. 16.) We take official notice of a
letter, dated January 12, 2012, to PERB's Office of the General Counsel in which Mootchnik
identified himself as the person designated to receive unfair practice charges on behalf of the
University.
2

Relations Act (HEERA).3 According to a proof
of
service form included with the charge,
CSUEU's Lead Labor Relations Representative Brian Young (Young) served the charge on the
University by mailing a copy to "CSU/OGC, 401 Golden Shore, Long Beach, CA 90802." The
proof
of
service form also indicates that Young served the charge electronically by transmitting
a copy from Young's email account, though it does not provide the email address
of
a
University representative to whom the charge was sent nor indicate that the University has
consented to electronic service in this matter.
On, December 3, 2014, the University filed with PERB a notice
of
appearance form
executed by Mootchnik which designated Labor Representatives John A. Swarbrick
(Swarbrick) and Leslie Freeman (Freeman) as the University's representatives by mail.
(University Appeal, Ex. 1.) The notice
of
appearance form indicated the University's consent
to service by U.S. mail on Swarbrick and Freeman at the following address: CSU, Trustees,
401 Golden Shore, 4W, Long Beach, CA 90802. The notice
of
appearance form also
consented to electronic service at Freeman's University email address. (Ibid.)
On Friday, December 19, 2014, Freeman contacted the Board agent assigned to this
case to request an extension
of
time in which to respond to the charge. According to
Freeman's correspondence, "the press
of
other PERB matters" caused her to be unable to
prepare the University's position statement, which was due Monday, December 22, 2014.
Freeman's correspondence also noted that, in addition to closure
of
University offices over the
holidays and her own previously-scheduled vacation days, the University official familiar with
CSUEU's dispute was already out
of
the office and would not return until January 5, 2015.
Although no response from the Board agent was included in the file, it appears from other
materials in the file that the requested extension of time was granted until January 12, 2015.
3 HEERA is codified at Government Code section 3560 et seq.
3

On
January 12, 2015, Freeman again contacted the Board agent and advised her that,
although the University's position statement was due later that day, she had received a
settlement demand from CSUEU and was therefore requesting that the matter be placed in
abeyance to allow the parties to explore the possibility
of
a settlement. The Board agent
responded by granting a one-week extension, thereby making the University's position
statement due
on
January 20, 2015.
On
January 15, 2015, the University and CSUEU jointly requested that the matter be
placed in abeyance for 30 days to allow additional time to discuss settlement. Pursuant to this
request, the Board agent notified the parties the same day that the matter would remain in
abeyance through February 17, 2015.
On
February 9, 2015, CSUEU requested that the charge be removed from abeyance "at
the earliest possible opportunity," and that the Office
of
the General Counsel proceed with its
investigation
of
the charge. (Dismissal letter, p. 1.)
After thus requesting and receiving multiple extensions
of
time, on February 16, 2015,
the University filed with the Office
of
the General Counsel a position statement in which it
denied any wrongdoing and asserted various affirmative defenses.
Upon investigation by the Office
of
the General Counsel, on June 8, 2015, CSUEU was
advised
of
various deficiencies in the charge and, on July 2, 2015, CSUEU filed an amended
charge. The proof of
service form for the amended charge indicates that Young attempted
service by U.S. mail at the same address where Young had sent the initial charge: CSU/OGC,
401 Gold Shore, Long Beach, CA 90802.
The proof of service form and accompanying documentation also indicate that, on the
same day the amended charges was filed, Young attempted service by sending an electronic
copy to Mootchnik' s University email address, notwithstanding the University's notice of
4

appearance form indicating its consent to electronic service in this matter at Freeman's, rather
than Mootchnik's, University email address. PERB's case file gives no indication that the
University objected or advised Young that service was defective. Nor does the University
claim that it did not receive the amended charge.
After further investigation, on July 30, 2015, the Office
of
the General Counsel
dismissed the amended charge for failure to state a prima facie case.
On
August 19, 2015, CSUEU appealed the dismissal to the Board itself. The proof
of
service form included with CSUEU's appeal indicates that Young attempted service on the
University the same day by mailing the appeal to: "Office
of
the General Counsel" at "401
Golden Shore, Long Beach CA, 90802." Additionally, Young again attempted
to
serve the
appeal by electronic mail to Mootchnik's University email address, rather than to Freeman's
email address, as provided on the University's notice
of
appearance form.
On September 15, 2015, the University filed its opposition to CSUEU's appeal.
On September 17, 2015, PERB's Appeals Assistant issued her administrative
determination advising the University that its opposition was untimely, inasmuch as it was due
September 14, 2015, but was not filed until one day later, and no request for an extension of
time had been received or granted.
On September 24, 2015, the University appealed the administrative determination to the
Board itself. CSUEUhas filed no response to the University's appeal.
THE ADMINISTRATIVE DETERMINATION
PERB Regulation 32635 provides, in relevant part, that within 20 days from the date of
service of a dismissal, the charging party in an unfair practice case may appeal the dismissal to
the Board itself. (PERB Reg. 32535, subd. (a).) Service on all parties to the case and proof of
service are required. (Ibid.; PERB Reg. 32140; Los Angeles Community College District
(1984) PERB Decision No. 395 (Los Angeles), pp. 5-6.) If the charging party files a timely
5

appeal from the dismissal, any other party to the case may file a statement in opposition to the
appeal within 20 days
of
the date
of
service
of
the appeal. (PERB Reg. 32635, subd. (c).)
A five-day extension
of
time is applied automatically. to any filing made in response to
documents served by mail if the place of address is within the State
of
California. (PERB
Reg. 32130, subd. (c).)
The administrative determination noted that CSUEU's appeal was served electronically
and by regular mail on August 20, 2015, and, by computing 20 days, plus 5 days for mailing,
determined that the University's deadline to file its opposition was September 14, 2015.
Because the University's opposition was not electronically filed and mailed until
September 15, 2015, the Appeals Assistant advised the University that its filing was untimely
and would not be accepted, subject to appeal to the Board itself.
THE UNIVERSITY'S APPEAL
The University contends that CSUEU failed to properly serve its appeal either by
U.S. mail or by electronic service on the University's designated representatives because
of
several discrepancies between the information on the proof
of
service included with CSUEU's
appeal and the information provided on the University's notice
of
appearance form. These
discrepancies include: (1) the envelope containing CSUEU's appeal was addressed to "Office
of
the General Counsel" rather than to Swarbrick and Freeman at "CSU, Trustees";
(2) CSUEU's proof
of
service form omitted the abbreviation "4W" from the correct street
address, i.e., it was sent to "401 Golden Shore" rather than to "401 Golden Shore, 4W" in
Long Beach, California; and (3) CSUEU attempted electronic service at Mootchnik's
University email address instead of at Freeman's email address, as indicated on the notice
of
appearance form.
The University notes that service must comply with PERB regulations, which require,
among other things, that documents served by mail be "properly addressed," and that
6

electronic service be accomplished at "the electronic mail address at which the party
agrees to accept service." (University's Appeal, p. 2; PERB Regs. 32635, subd. (a), 32140,
subds. (a) and (b).) Because CSUEU's appeal from dismissal was not properly addressed and·
served on the representatives designated on the University's notice of appearance form, the
University argues that its opposition to CSUEU's appeal never became due and was thus not
untimely and/or that any untimeliness should be excused because
of
defective service.
Alternatively, the University urges the Board to refuse to consider CSUEU's appeal from
dismissal because it was not properly served on the University.
DISCUSSION
In an appeal from an administrative determination, the moving party must demonstrate
how and why the decision being challenged departs from Board precedent or regulations.
(County
of
Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) The University's appeal
presents two issues: (1) whether the University has shown good cause for the Board to excuse
the late filing
of
the University's opposition to CSUEU's appeal; and (2) whether the Board
should refuse to consider CSUEU's appeal for defective service.
Whether the University has Shown Good Cause to Excuse its Untimely Filing
PERB regulations provide that a late filing may be excused at the discretion of the
Board but "for good cause only." (PERB Reg. 32136.)
If
excused, a late filing becomes a
timely filing. (Ibid.) Consistent with the general policy of law which favors preservation of
the right to appeal and hearing of appeals on their merits, the Board's application
of
Regulation 32136 to a variety
of
factual scenarios reveals that "good cause" is a flexible
standard, defined and constrained by considerations of fairness and reasonableness.
(Trustees
of
the California State University (1989) PERB Order No. Ad-192-H (Trustees
of
CSU), pp. 4-5.) For example, the Board has historically excused late filings caused by "honest
mistal<es," such as mailing or clerical errors. (See, e.g., Kern Community College District (2008)
7

PERB Order No. Ad-372, p. 3 [clerical employee served appeal
on
respondent but did not file
appeal with PERB]; Trustees
of
CSU, supra, at pp. 3-5 [mailroom employees incorrectly set
postage mete~ causing exceptions to be filed late]; San Francisco Unified School District (2009)
PERB Decision No. 2048 (San Francisco), pp. 3-4 [late filing excused as a result
of
clerical error
in counsel's offiee].) The Board has also found good cause where an "untimely filing was a
result
of
honest error ... resulting from misunderstood communications" with an unrepresented
appellant. (Los Angeles Unified School District (2003) PERB Order No. Ad-318, p. 4; City
of
Oakland (Oakland Fire Department) (2015) PERB Order No. Ad-425-M, pp. 5-6.)
Generally, the Board has excused a late filing where a non-prejudicial delay
of
short
duration resulted either from circumstances beyond the control
of
the filing party or from
excusable misinformation, where the filing party's explanation was credible on its face or was
corroborated by other facts or testimony. (United Teachers
of
Los Angeles (Kestin) (2003)
PERB Order No. Ad-325, pp. 3-4; Barstow Unified School District (1996) PERB Order
No. Ad-277 (Barstow), p. 4; cf. Oxnard Elementary School District (2004) PERB Decision
No. 1728, p. 1, fn. 2.) However, regardless
of
the particular reason(s) given, the moving party
must provide sufficient factual detail to establish a "reasonable and credible" explanation for its
untimely filing or show that it at least made a conscientious effort to comply with the deadline.
(National School District (2010) PERB Order No. Ad-389, pp. 2-3; Newport-Mesa Unified
School District (2008) PERB Order No. Ad-373, p. 3; San Francisco, supra, PERB Decision
No. 2048, p. 4.) If the delay could have been anticipated beforehand, the filing party has a
duty to request an extension of time. (Barstow, supra, at p. 4.)
In the present appeal, the University has not provided sufficient facts to establish either
a "reasonable and credible" explanation for its untimely filing or to show that it made a
conscientious effort to comply with the deadline. Pursuant to the University's regular office
procedures, a legal secretary employed in the University's Office of the General Counsel
8

received, opened and date stamped the mailed copy
of
CSUEU's appeal on Monday, August 31,
2015, and then forwarded the appeal to Freeman in both paper and electronic format two days
later on Wednesday, September 2, 2015.
Despite
Young's
carelessness and apparent disregard for the contact information
provided
on
the University's notice
of
appearance form, the University admits that Freeman,
its designated representative in this matter, was in possession
of
CSUEU's
appeal as early as
September 2, 2015. Although the University's opposition to the appeal was not due until almost
two weeks later, Freeman did not file the University's opposition until after the deadline. The
University's appeal does not explain why Freeman did not contact
PERB
to request an extension
of
time, despite her previous success in obtaining multiple such extensions in this very matter.4
Because the University has not provided sufficient factual detail to establish either a reasonable
and credible explanation for its untimely filing or that it made a conscientious effort to comply
with the deadline by requesting an extension
of
time, we consider it unnecessary to consider
whether excusing the University's untimely filing would cause prejudice.
Additionally, to the extent the University argues that its opposition never became due
because service of the appeal was defective, we must reject this contention as well. The one-day
delay in the University's filing cannot be the result
of
defective service given the University's
admission that it was in receipt
of
the appeal approximately two weeks before the deadline for
filing its opposition. Although the Board may grant extensions
of
time or excuse late filings for
good cause, parties cannot take the filing deadlines into their own hands.
If
the University's
4 The University does not deny that CSUEU's appeal was also received on or about
August 20, 2015, at Mootchnik's email address, as indicated in the proof
of
service form signed
by Young and filed with PERB. Instead, the University complains only that the electronic
version was not properly served on Freeman, the designated representative in this matter, at the
email address provided by the University. Because the University admits that it was in receipt of
the paper copy of the appeal approximately two weeks before its deadline for responding and
never requested an extension of time, we find it unnecessary to determine whether the University
was also in receipt of the electronic version of CSUEU's appeal at Mootchnik's email address
some ten days earlier.
9

representative was in doubt as to the deadline or needed additional time to respond, she knew
how to contact PERB to seek clarification or to request an extension
of
time.
Good Cause is Not Required to Excuse Defective Service and the University Admits that it
Had Notice
of
the Issues Well Before the Time Limit for Filing its Opposition Papers
We next consider the University's alternative argument that the Board should refuse to
consider CSUEU's appeal for defective service. The service requirements found in PERB's
regulations "are not merely ritualistic." Rather, they are "basic to providing due process to the
involved parties." (Los Angeles, supra, PERB Decision No. 395, pp.
5:..6.)
A party that
disregards the service requirement runs the risk that its filings will be rejected and that it will
be dismissed from the action. (Ibid.; Coronado Unified School District (1989) PERB Order
No. Ad-188, p. 6.)
However, the purpose
of
the service requirement is to protect against stale claims and
to provide notice
of
the issues, so that parties can preserve evidence and prepare their claims or
defenses. (San Diego Community College District (1988) PERB Decision No. 662, affd. in
relevant part sub nom
..
San Diego Adult Educators
v.
Public Employment Relations Bd. (1990)
223 Cal.App.3d 1124, 1131-1132; Fontana Unified School District (2003) PERB Order
No. Ad-324 (Fontana), pp. 6-7, citing Hammer Collections Co.
v.
Ironsides Computer Corp.
(1985) 172 Cal.App.3d 899, 902.) Our precedents have long followed the policy and practice
of
California's courts whereby the service requirement is liberally construed and pragmatically
applied to ensure adequate notice without depriving them
of
the opportunity to have their issues
heard on the merits. (State
of
California (Department
of
Developmental Services) (1996) PERB
Decision No. 1150-S, pp. 2-3, fn. 2, citing Pasadena Medi-Center Associates
v.
Superior Court
(1973) 9 Cal.3d 773, 778.)
Thus, unlike PERB's regulations and decisional law governing whether to excuse a late
filing, no showing of "good cause" is required to excuse defective service. (Fontana, supra,
10

PERB Order No. Ad-324, p. 7, fn. 5; California School Employees Association (Kotch) (1992)
PERB Decision No. 953, p. 2, fn. 2; cf. California State Employees Association (Hackett)
(1993) PERB Decision No. 1012-S, p. 2.) Rather, the service requirement may be excused if all
parties have actual notice
of
the issues and would not be unfairly surprised or unduly prejudiced.
(Fontana, supra, at pp. 6-7; Santa Monica-Malibu Unified School District (1987) PERB Order
No. Ad-163, pp. 2-3, fn. 3.)
Here, the University admits that it was in receipt
of
the hard copy
of
CSUEU's appeal
as early as August 31, 2015, and that a legal secretary forwarded paper and electronic versions
to
Freeman on September 2, 2015. The University thus had actual notice
of
the issues almost
two weeks before the University's deadline for filing an opposition to the appeal. While
CSUEU's service did not conform in every respect to the information provided in the
University's notice
of
appearance form, the University had every opportunity to respond to the
appeal and it has not shown that it suffered harm caused by any defects in service
of
CSUEU' s
appeal. Any confusion about the deadline for responding to CSUEU' s appeal could have been
resolved by contacting PERB and,
if
necessary, requesting and obtaining an extension of time,
as the University had previously done in this matter on multiple occasions. Because the record
reveals no evidence of fraud or intentional misconduct, and nor was there any harm suffered by
the University, we excuse CSUEU's defective service in this instance.
For the above reasons, we affirm the administrative determination that the University's
filing was untimely and deny the University's request to refuse to consider CSUEU's appeal.
ORDER
The Trustees of the University
of
California's appeal from the administrative
determination in Case No. LA-CE-1232-H is hereby DENIED.
Chair Martinez and Member Huguenin joined in this Decision.
11

STATE
OF
CALIFORNIA	
EDMUND
G.
BROWN
PUBLIC EMPLOYMENT RELATIONS BOARD
Appeals Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-9425
Fax: (916) 327-7960
September 17, 2015
Leslie V. Freeman, Labor Relations Manager
California State University Chancellor's Office
401 Golden Shore, 4th Floor
Long Beach, CA 90802
Re: 	California State University Employees Union
v.
Trustees
of
the California State University
Case No. LA-CE-1232-H
Dear Ms. Freeman:
This letter acknowledges receipt
of
your filing entitled "CSU Opposition to CSUEU's Appeal
of
Dismissal" in the case referenced above. Your opposition to the appeal was not timely filed in
accordance with PERB Regulation 32635(c). 1
The appeal in this case was served on the parties via e-:file and regular mail on August 20. The
response was due to be filed no later than September 9, (plus 5 days for mailing, final deadline
September 14). Your opposition to the appeal was e-filed and mailed on September 15, one (1) day
late. Therefore, your opposition to
the
appeal must be denied as untimely filed.
Pursuant to Regulation 32360, you may appeal this administrative determination to the Board itself.
If
you choose to do so, your appeal is due ten (10) days following service
of
this letter. Service and
proof
of
service
of
the administrative appeal is required.
Sincerely,
Hanah E. Stuart
Appeals Assistant
cc: 	Brian Young, Labor Relations Representative
1 PERB Regulations are codified at are codified at California Code of Regulations, title 8,
section 31001 et. seq. and may be found on the Internet at www.perb.ca.gov.