Long Beach Community College District (PERB A369E)

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STATE OF CALIFORNIA | Spcxed be
DECISION OF THE remap
PUBLIC EMPLOYMENT RELATIONS BOARD Ne
SAMWEL OSEWE,
Charging Party, Case No. LA-CE-5040-E
V. Administrative Appeal
LONG BEACH COMMUNITY COLLEGE PERB Order No. Ad-369
DISTRICT,
December 21, 2007
Respondent.

Appearances: Samwel Osewe, on his own behalf; Parker & Covert by Barbara J. Ginsberg,
Attorney, for Long Beach Community College District.

Before Shek, McKeag and Rystrom, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on an appeal by Samwel Osewe (Osewe) requesting that the Board accept his late
filed appeal of the dismissal of his unfair practice charge.

BACKGROUND

Osewe’s unfair practice charge was dismissed by a PERB Board agent on July 31,
2007. On August 28, 2007, Osewe filed an appeal of the Board agent’s dismissal along with a
request that the Board accept his late filed appeal. Osewe alleges that he called “M/S
Hernandez''!3 weeks ago,” attempting to obtain an extension of time to file the appeal, but a
]

recording stated that she was out of the office until August 20, 2007. “In the meantime, Terri”

the new court administrator” had called him to inform him that the proof of service in his

‘This appears to be a reference to the Board agent, Anita Martinez.

*This appears to be a reference to the Appeals Assistant.

separate unfair practice charge in Case No. LA-CO-1291-E, against the Long Beach Council
of
Classified Employees, AFT, AFL-CIO, was filed incorrectly. We take official notice that the
case file in Case No. LA-CO-1291-E includes a letter dated August 16, 2007, from the Appeals
Assistant to Osewe, affording him until August 24, 2007, to provide PERB with a proper proof
of
service in that matter.3 Osewe contends that he assumed the Appeals Assistant had granted
an extension
of
time to his filing
of
a proper proof
of
service in Case No. LA-CO-1291-E, and
to his appeal in the present case. 	Osewe also states that he "had been hospitalized since last
week and [he] just came home."
DISCUSSION
Osewe' s unfair practice charge was dismissed on July 31, 2007 and his appeal
of
the
dismissal was due to be filed no later than August 27, 2007. (PERB Regs. 32635(a) and
32130(b) and (c
).
4) 	He allegedly attempted to obtain an extension
of
time within which to file
3See Antelope Valley Community College District (1979) PERB Decision No. 97,
at p. 23, stating that an administrative agency may take official notice
of
matters within its own
files and records.
4PERB regulations are codified at California Code
of
Regulations, title
8,
section
31001, et seq. PERB Regulation 32635 states, in pertinent part:
(a) Within 20 days
of
the date
of
service
of
a dismissal, the
charging party may appeal the dismissal to the Board itself. The
original appeal and five copies shall be filed in writing with the
Board itself in the headquarters office, and shall be signed by the
charging party or its agent. 	Service and proof
of
service
of
the
appeal on the respondent pursuant to Section 32140 are required.
PERB Regulation 32130 states, in pertinent part:
(b) Whenever the last date to file a document falls on Saturday,
Sunday, or a holiday, as defined in Government Code Sections
6700 and 6701, or PERB offices are closed, the time period for
filing shall be extended to and include the next regular PERB
business day. The extension of time provided herein shall be
applied subsequent to the application of any other extension of
time provided by these regulations or by other applicable law.
2

his appeal
of
the dismissal, by telephone on or about August 6, 2007. Under Regulation
32132, his attempted verbal request for extension did not satisfy the requirement for a written
request to be submitted at least three days before the expiration
of
the time required for filing,
or no later than August 24, 2007.5
(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, ten days
if
the place
of
address is
outside the State
of
California but within the United States, and
twenty days
if
the place
of
address is outside the United States.
No extension
of
time applies in the case of documents served in
person, or by facsimile transmission as defined in Section 32090.
PERB Regulation 32136 provides that the Board may excuse a late filing for good
cause. The Board has found good cause to exist in situations where the explanation was
"reasonable and credible." (Barstow Unified School District (1996) PERB Order No. Ad-277.)
The Board has interpreted "reasonable and credible" to mean that the party made a
conscientious effort to timely file, and that the delay did not cause prejudice to any party.
(United Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325 (Kestin), citing
State
of
California (State Teachers Retirement System) (1999) PERB Order No. Ad-296-S
(State Teachers Retirement System).) The Board has generally "excused 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." (Kestin, at p. 4.)
5PERB Regulation 32132(a) states:
(a) A request for an extension of time within which to file any
document with the Board itself shall be in writing and shall be
filed at the headquarters office at least three days before the
expiration of the time required for filing. 	The request shall
indicate the reason for the request and, if known, the position of
each other party regarding the extension. Service and proof of
service pursuant to Section 32140 are required. Extensions of
time may be granted by the Board itself or an agent designated by
the Board itself for good cause only.
3

In the present case, Osewe's misunderstanding that the Appeals Assistant's grant
of
an
extension
of
time in Case No. LA-CO-1291-E to correct the proof
of
service in that case,
would also apply to his appeal in the present case does not constitute "excusable
misinformation," or circumstances beyond Osewe's control. (Kestin.) The Appeals
Assistant's correspondence in Case No. LA-CO-1291-E made
no
reference to the present
matter, and contained no substance which would have caused a reasonable person under
similar circumstances to reach a similar conclusion as Osewe.
When a late filing
is
caused by an alleged illness, the party must still demonstrate a
conscientious effort to timely file. 	(North Monterey County Unified School District (1996)
PERB Order No. Ad-274 iliorth Monterey County); State
of
California (Department
of
Social
Services) (2001) PERB Order No. Ad-308-S (Social Services).) In Social Services, the party
claimed a "serious illness
11
which prevented his timely filing. 	A doctor visit verification form
indicated that the party was unable to work for a specified period
of
time. Although the party
submitted proof
of
his illness, the Board found he did not explain how the illness prevented
him from making a conscientious effort to timely file. 	(See also, State Teachers Retirement
System [a party's attorney claimed he was ill but did not explain how his illness affected his
ability to timely file]; 	State
of
California (2001) PERB Order No. Ad-309-S [party did not
explain how depression and anxiety prevented a timely filing]; 	and North Monterey County
[no explanation how family illness impacted a timely filing].)
In the present case, Osewe claims that he was hospitalized "since last week and ... just
came home." He offered no verification of his hospitalization. Even assuming that he had
4

been hospitalized for a week prior to the filing
of
his appeal, received and filed6 August 28,
2007, and was able to verify his hospitalization, such assumption, uncorroborated by a
reasonable and credible explanation
of
how his hospitalization prevented his prompt filing, it
does not reasonably excuse Osewe from his obligation to make a conscientious effort to file
timely.
ORDER
Samuel Osewe's request that the Board accept his late-filed appeal in Case
No. LA-CE-5040-E is hereby DENIED.
Members McKeag and Rystrom joined in this Decision.
6PERB Regulation 32135(a) states:
(a) All documents shall be considered "filed" when the originals,
and the required number of copies, if any, are actually received
by the appropriate PERB office during a regular PERB business
day.
5