Lake Elsinore Unified School District (PERB A446E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LORI E. EDWARDS, ET AL.,
Charging Party,
v.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-6082-E
PERB Order No. Ad-446
June 28, 2017
Appearances: Lori E. Edwards, Representative, for Lori E. Edwards, et al.; Atkinson,
Andelson, Loya, Ruud & Romo by Todd M. Robbins, Attorney, for Lake Elsinore Unified
School District.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Lake Elsinore Unified School District (District) from an
administrative determination, in which PERB’s Appeals Assistant rejected as untimely the
District’s response to exceptions to a proposed decision filed by Charging Parties Lori E.
Edwards, David Pickett, Victoria Pickett and Kimberly A. Rosales (collectively, Charging
Parties) in Unfair Practice Case No. LA-CE-6082-E. As explained in the Appeals Assistant’s
determination, Charging Parties filed and served by mail their exceptions to the proposed
decision on December 27, 2016 and, pursuant to PERB Regulations1 32310 and 32130,
subdivision (c), any response to Charging Parties’ exceptions was therefore due no later than
January 23, 2017. On February 7, 2017, fifteen days after the deadline, the District filed its
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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response to Charging Parties’ exceptions. The Appeals Assistant notified the parties the same
day that the District’s response had been rejected as untimely.
Pursuant to PERB Regulations 323602 and 32136,3 the District appeals from the
Appeals Assistant’s determination and requests that the Board excuse the late filing and
consider the District’s response to Charging Parties’ exceptions when deciding the merits of
the underlying unfair practice charge. For the reasons explained below, we find no grounds to
excuse the District’s late filing and therefore deny the District’s appeal.
BACKGROUND
On November 29, 2016, a PERB administrative law judge (ALJ) issued his proposed
decision dismissing the complaint and underlying unfair practice charge in this case. The
proposed decision was served on the parties the same day with PERB’s standard transmittal
letter from PERB’s Chief ALJ, which describes the Board’s processes and deadlines for filing
exceptions, responses to exceptions and requests for extensions of time. Exceptions to the
proposed decision were due no later than December 27, 2016, which included the 20-day
period for filing exceptions pursuant to PERB Regulation 32300, subdivision (a), plus a
five-day extension for service by mail within the State of California, pursuant to PERB
Regulation 32130, subdivision (c), and Code of Civil Procedure section 1013. On December 27,
2016, Charging Parties sent to PERB as an e-mail attachment a 27-page, single-spaced document
captioned “Exception [sic] to Proposed Decision,” which included 40 exceptions to the proposed
decision. Because December 26, 2016 was a holiday, pursuant to PERB Regulations, the
2 PERB Regulation 32360, authorizes appeals to the Board itself from most
administrative decisions by the agency and sets forth the criteria for filing such appeals.
3 As discussed in greater detail below, PERB Regulation 32136 provides that a late
filing may be excused in the discretion of the Board for good cause.
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Appeals Assistant apparently deemed the document filed when received on December 27, 2016,
which was the next regular PERB business day.4 The filing included proof of service indicating
that on December 27, 2016, it had also been served by mail on Attorney Todd Robbins
(Robbins), who is the District’s designated representative in this matter. The proof of service
indicated that the document had been mailed to PERB on December 27, 2016, but did not
indicate that it had also been electronically filed with PERB.5
On December 28, 2016, Charging Parties electronically filed with PERB a two-page,
single-spaced document captioned “Exceptions to Proposed Decision Amended,” in which
Charging Parties requested to amend Exception No. 39 by adding certain testimony that,
4 PERB Regulation 32135, subdivision (b), provides, in relevant part, that documents
shall be considered “filed” with the agency “when received during a regular PERB business
day by facsimile transmission at the appropriate PERB office together with a Facsimile
Transmission Cover Sheet, or when received by electronic mail in accordance with
Section 32091,” which provides for electronic filing of documents as e-mail attachments.
(Emphasis added). Thus, while a document is only considered “filed” when received during a
regular PERB business day by facsimile transmission, the portion of the regulation pertaining
to electronic filing does not specify whether a document is considered “filed” the same day it is
electronically transmitted to PERB, regardless of whether on a holiday or regular business day,
or whether an electronically-filed document must also be “received during a regular PERB
business day” before it is considered “filed.” However, in the present circumstances, we have
no need to determine whether the Appeals Assistant correctly deemed Charging Parties’
exceptions filed on December 27, 2016, or whether they were already “filed” the previous day
by virtue of electronic transmission, since, in either event, the due date for filing was extended
to the next regular business day pursuant to PERB Regulation 32130, subdivision (b), which
extends the time for filing a document to the next regular PERB business day, “[w]henever the
last date to file a document falls on Saturday, Sunday, or a holiday,” or whenever “PERB
offices are closed.”
5 PERB’s Regulation governing facsimile and electronic filings with the Board provides
that the original and required number of hard copies be deposited together with proof of
service in the U.S. mail or with another delivery service for delivery to the appropriate PERB
office. (PERB Reg. 32135, subd. (c).) The Regulation also requires that a facsimile or
electronic filing include, among other things, the date and time of the transmission. (PERB
Reg. 32135, subd. (d).) However, these requirements appear in separate subdivisions, and the
Regulation does not require that the proof of service accompanying a facsimile or electronic
filing specify that the document was also electronically filed with the Board when the
document is served by mail on other parties.
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according to the filing, had been inadvertently omitted from their previous filing. This filing
included proof of service identifying the document as “Amended Exceptions” and indicating that
it had been served by mail on Robbins on December 28, 2016. However, like Charging Parties’
previous filing, the proof of service form for Charging Parties “Amended Exceptions” gave no
indication that the document had also been electronically filed with PERB.
On December 29, 2016, PERB’s Appeals Assistant notified the parties by mail that
Charging Parties’ “Exceptions to Proposed Decision Amended” had been rejected, as it had been
filed one day after the December 27, 2016 deadline. That administrative determination is the
subject of a separate appeal by Charging Parties.
PERB Regulation 32310 requires that any response to exceptions to a proposed
decision be filed within 20 days following the date of service of the exceptions. PERB
Regulations also apply a five-day extension of time to any filing made in response to
documents served by mail, if the place of address is within the State of California, as was the
case here. (PERB Reg. 32130, subd. (c).) Because Charging Parties served their exceptions to
the proposed decision by mail on December 27, 2016, pursuant to the Regulation’s 20-day
deadline plus five days for service by mail, any response by the District to Charging Parties’
exceptions was due no later than January 23, 2017.
Although mailed separately two days apart, according to a sworn declaration executed by
Robbins and filed with the District’s appeal, Charging Parties exceptions to the proposed
decision and their attempted amendment to the previously-filed exceptions were each delivered
to Robbins’ office on December 29, 2016. The proof of service forms for both filings gave no
indication that they had been filed electronically with PERB, and, for reasons that are not
explained, Robbins concluded that based on the dates for proof of service, both documents
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“appeared to be untimely” on their face. 	Although Robbins’ declaration does not explain how
he made this determination, based on other filings and correspondence in the file, it appears that
throughout these proceedings, Robbins was unaware that, like Code of Civil Procedure
section 1013, PERB Regulations provide an extension of five days for filings made in response
to documents served by mail, if the place of address is within the State of California. (PERB
Reg. 32130, subd. (c).)6 In any event, PERB Regulations and decisional law provide that a
document is considered “filed” with the Board when received at the appropriate PERB office
during a regular business day, whether received by mail, facsimile or electronic transmission
(PERB Reg. 32135, subds. (a), (b); Trustees of the California State University (2014) PERB
Decision No. 2384-H, pp. 19-20), and Robbins’ declaration does not indicate that he contacted
the Appeals Assistant to determine whether, in fact, either of Charging Parties’ filings was
received at the appropriate PERB office within the deadline prescribed by PERB Regulations,
before he concluded that both documents “appeared to be untimely.”
6 For example, according to exhibits attached to Charging Parties’ response to the
District’s appeal, on December 31, 2016, Robbins notified Edwards by e-mail that, in Robbins’
opinion, Charging Parties’ exceptions were “clearly untimely” and to inform Edwards that,
unless they were withdrawn immediately, the District would seek an order from PERB
directing Charging Parties to reimburse the District for reasonable attorney’s fees and costs
expended in preparing and responding to Charging Parties’ exceptions. Robbins’ e-mail
message indicates his belief that, because the proposed decision was served on November 29,
2016, Charging Parties’ deadline for filing exceptions was twenty days later, on December 19,
2016. Robbins’ message makes no mention of the additional five days’ extension for service
by mail.
The District’s opposition to Charging Parties’ appeal from the administrative
determination rejecting Charging Parties’ attempted amendment to their exceptions similarly
argues that Charging Parties’ appeal was untimely because it was not filed “within 10 days
following the date of service of the decision or letter of determination,” as required by PERB
Regulation 32360, subdivision (b), but, again, the District’s calculation of the deadline fails to
account for any extension of time for service by mail.
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On January 3, 2017, Robbins received the Appeals Assistant’s December 29, 2016
correspondence (referenced above) indicating that Charging Parties’ “Exceptions to Proposed
Decision Amended” had been rejected as untimely. Although the Appeals Assistant’s
correspondence referenced only Charging Parties’ “Exceptions to Proposed Decision Amended”
and made no mention of their separate filing captioned “Exception to Proposed Decision,”
according to Robbins’ declaration, he concluded that Appeals Assistant’s determination applied
to both documents.
On January 17, 2017, Charging Parties filed with PERB their appeal from the
administrative determination denying their amended exceptions as untimely. Although filed
electronically, as with their previous filings in this matter, the proof of service form
accompanying Charging Parties’ appeal indicates that a copy was served by regular mail on
Robbins, but gives no indication that the document was also filed electronically with the Board.
Robbins’ declaration makes no mention of Charging Parties’ January 17, 2017 appeal, which, on
its face, pertained only to the rejection of Charging Parties’ “Exceptions to Proposed Decision
Amended.” 	Instead, on January 27, 2017, Robbins, on behalf of the District, filed the District’s
opposition, which acknowledged that the appeal had been filed on January 17, 2017, but, again,
argued that both Charging Parties’ original filing and their “Exceptions to Proposed Decision
Amended” were untimely, as neither document had been filed within 20 days of service of the
proposed decision, i.e., without accounting for any extension of time for service by mail.
According to Robbins’ declaration, on or about February 6, 2017, he received
correspondence from PERB’s Appeals Assistant indicating that, as of January 31, 2017, the
filings for this case were complete and that the matter had been placed on the Board’s docket. At
this point, Robbins contacted the Appeals Assistant who, according to his declaration, informed
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him that only one of Charging Parties’ filings had been rejected as untimely, as indicated in the
Appeals Assistant’s December 29, 2016 correspondence. Although he does not explain how,
Robbins’ declaration also indicates that, on February 6, 2017, he also learned that Charging
Parties had filed their “Exception to Proposed Decision” electronically with PERB. According
to his declaration, Robbins promptly filed the District’s response to Charging Parties’ exceptions,
which were received at PERB’s office on February 7, 2017, fifteen days after the deadline, and
rejected as untimely the same day.
Robbins’ declaration also asserts that during January 2017, he had to tend to family
matters concerning his father’s terminal illness, that, he requested and received a lengthy
extension of time to submit a post-hearing brief in a separate unfair practice case involving the
same parties, and that, under the circumstances, he would have requested a similar extension of
time to respond to Charging Parties’ exceptions, had he known that the exceptions had been
accepted by PERB as timely filed.
THE DISTRICT’S APPEAL
The District’s appeal argues that, under the circumstances, the Board should find good
cause to excuse the late filing and urges the Board to accept and consider the District’s
response to Charging Parties’ exceptions when deciding the unfair practice issues in this case.
The District asserts two grounds for its appeal.
First, it claims that Robbins, its designated representative, was confused by the fact that
Charging Parties electronically transmitted their exceptions to PERB on December 27, 2016,
which were deemed timely by the Appeals Assistant, and also filed a document captioned
“Exceptions to Proposed Decision Amended” on December 28, 2016, which were rejected as
untimely, because both documents were received in the mail on the same day, and because,
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although both documents included proof of service, neither indicated that they had been filed
electronically with PERB. According to the District, because Robbins mistakenly believed that
both filings had been rejected by the Appeals Assistant as untimely, and only learned otherwise
on February 6, 2017, upon receiving correspondence from the Appeals Assistant indicating that
the filings were complete and the matter docketed for consideration by the Board.
Second, the District argues that Robbins’ failure to request an extension of time in this
matter was due to his honest, but mistaken, belief that both of Charging Parties’ filings had been
rejected as untimely, as evidenced by the fact that, in January 2017, Robbins had requested an
extension of time in a separate PERB case to tend to family matters concerning his father’s
terminal illness. The District argues that it “should not be punished because of the confusing
nature of Charging Parties’ filings or because of the unfortunate family circumstances the
District’s legal counsel was having to attend to.”
DISCUSSION
PERB Regulations provide that an untimely filing may be excused at the discretion of
the Board but for “good cause only.” (PERB Reg. 32136.) If excused, a late filing becomes
timely. (Ibid.) Consistent with the general policy of law which favors preservation of the right
to appeal and hearing of appeals on their merits, “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.)
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)
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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.) 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), and, regardless of the reason(s)
for the late filing, the moving party must provide 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 Unified School
District (2009) PERB Decision No. 2048 (San Francisco), p. 4.)
For example, the Board has excused late filings caused by “honest mistakes,” such as
inadvertent mailing or clerical errors associated with an actual attempt to timely file. (See, e.g.,
Kern Community College District (2008) PERB Order No. Ad-372, p. 3 [clerical employee
served appeal on respondent but did not file appeal with PERB]; Trustees of CSU, supra, PERB
Order No. Ad-192-H, pp. 3-5 [mailroom employees incorrectly set postage meter causing
exceptions to be filed late]; San Francisco, supra, at pp. 3-4 [late filing excused as a result of
clerical error in counsel’s office].) 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 (2007) PERB Order
No. Ad-368, p. 4; 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.)
However, “the Board has not found good cause in situations where the party’s attorney
was directly responsible for the late filing.” (State of California (Department of Corrections)
(2003) PERB Order No. Ad-328-S, pp. 3-5; State of California (Water Resources Control
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Board) (1999) PERB Order No. Ad-294-S, p. 5; Calipatria Unified School District (1990)
PERB Order No. Ad-217, pp. 11-13; cf. Los Angeles Unified School District, supra, PERB
Order No. Ad-318, pp. 3-4.) For example, in Calipatria, the Board found no good cause to
excuse a late filing and expressly rejected a “mistake of law” as grounds for relief, where a
party’s attorney reviewed, but misunderstood, PERB’s Regulation governing filing
requirements. (Id. at pp. 11-13.) In Water Resources Control Board, the Board explained that
the filing deadlines set forth in PERB Regulation 32135 “would become meaningless if the
Board considered an attorney’s misreading of [the] regulation to constitute good cause to
excuse a late filing.” (Id. at p. 6.)
The Board has also refused to find good cause where, because a party’s attorney fails to
seek clarification of the filing deadline or to request an extension of time with PERB’s Appeals
Assistant, the party makes no attempt even to file before the deadline. (Trustees of the
California State University (2016) PERB Order No. Ad-432-H, p. 9; Los Angeles Unified
School District (1993) PERB Order No. Ad-247 (Los Angeles USD), p. 3.) As we recently
explained in Trustees, supra, PERB Order No. Ad-432-H, “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.” (Id. at p. 9.)
The Chief ALJ’s transmittal letter accompanying the proposed decision explains the
process for filing exceptions to the proposed decision. The deadlines for filing exceptions and
requests for extensions of time are prominent and key elements of the information included in
the Chief ALJ’s letter. They are also set forth in PERB’s Regulations, which are readily
available on the agency’s website. However, the filings and correspondence in this case
indicate that, throughout these proceedings, Robbins was operating under the incorrect belief
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that PERB provides no extension of time for filings in response to documents served by mail.
Despite the express language of PERB Regulation 32130, subdivision (c), providing a five-day
extension for responding to documents served by mail within the State of California, Robbins
repeatedly calculated the deadlines for Charging Parties’ filings, as if they included no such
extension. Because of this failure to follow our Regulations, Robbins concluded, without
confirmation from PERB’s Appeals Assistant, that Charging Parties’ exceptions were “clearly
untimely” and apparently, that no response from the District was therefore necessary.
This error was compounded by Robbins’ conclusion that the Appeals Assistant had
rejected as untimely both Charging Parties’ original exceptions and their attempted amendment
to the exceptions, despite the plain language of the Appeal Assistant’s December 29, 2016
correspondence designating only the latter filing as untimely and making no mention
whatsoever of Charging Parties’ original filing. Even after receiving additional filings and
correspondence from Charging Parties and the Appeals Assistant indicating that only Charging
Parties’ attempted amendment to their exceptions had been rejected as untimely, Robbins
failed to contact the Appeals Assistant to seek clarification or an extension of time, and did not
file a response to Charging Parties’ exceptions until February 7, 2017, fifteen days after the
District’s deadline had passed.
Under similar circumstances, the Board has refused to find good cause (see, e.g.,
Los Angeles USD, supra, PERB Order No. Ad-247, p. 3), and the District has offered no
compelling reason to reach a different result in this case. We find no good cause to excuse
counsel’s failure to carefully review PERB Regulations or other materials regarding the filing
deadlines, nor counsel’s failure to seek clarification or an extension of time from the Appeals
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Assistant when confronted with conflicting information as to the status of Charging Parties’
filings and, accordingly, we deny the District’s appeal.
ORDER
The Public Employment Relations Board (Board) hereby DENIES Lake Elsinore
Unified School District’s appeal and request that the Board excuse its untimely-filed
response to the exceptions to the proposed decision filed by Lori E. Edwards, et al. in Case
No. LA-CE-6082-E.
Chair Gregersen and Member Winslow joined in this Decision.
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