Regents of the University of California (PERB A370H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA LOCAL
8,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Res ondent.
Case No. LA-CE-1006-H
Administrative Appeal
PERB Order No. Ad-370-H
February 29, 2008
Appearances: 	Susan Cross, Steward, for University Professional and Technical Employees,
CWA Local
8;
University
of
California, Irvine by Nadine Baron Fishel, Lead Labor Relations
Specialist, for Regents
of
the University
of
California.
Before Neuwald, Chair; McKeag and Rystrom, Members.
DECISION
RYSTROM, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by University Professional and Technical Employees, CWA
Local 8 (Local 8 or Union)
of
the dismissal
of
an unfair practice charge by a Board agent
against the Regents
of
the University
of
California (University). 	In this matter, Local 8
requests that PERB reopen the case to allow the late filing of a factual letter for consideration
by the Board agent as part of the initial charge to determine
if
a complaint should issue. 	We
must treat this request as an appeal pursuant to PERB Regulation 321361 for the reasons stated
below.
1PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

We reviewed the entire file including the appeal letter and supporting documents filed
by Local 8, the University's response thereto as well as the unfair practice charge, the
University's response to the charge and the Board agent's warning and dismissal letters. We
affirm the Board agent's dismissal of Local 8 's unfair practice charge on the basis that the
instant appeal is untimely and Local 8 has not shown good cause for a late filing pursuant to
PERB Regulation 32136.2
PROCEDURAL BACKGROUND
On May 11, 2007, Local 8 filed an unfair practice charge alleging that the University
violated the Higher Education Employer-Employee Relations Act (HEERA)3 by denying
employee Gabriel Ginez (Ginez) his right to have a union representative present during two
meetings with his supervisors. A May 15, 2007, letter from the Board agent explaining the
procedure to be used in processing the charge was served on all parties. The University filed
its response to the charge on June 12, 2007.
On August 2, 2007, the Board agent issued a warning letter informing Local 8 that the
unfair practice charge did not state a prima facie case and outlining the charge's deficiencies.
This letter was directed to Jay Gummerman (Gummerman) as president of Local 8 at the
Union's address according to the unfair practice charge. The letter notified Local 8 that if
there were additional facts which would correct the charge's deficiencies, it could be amended
and the deadline to do so was August 9, 2007, or the charge would be dismissed. Local 8 was
2Subparagraph (b) of PERB Regulation 32635 allows for the presentation of new
supporting evidence on appeal upon a showing of good cause. Because we have concluded
that Local 8's appeal is untimely, we do not reach the issue of whether Local 8 has shown good
cause to present a new factual letter for consideration on appeal.
3HEERA is codified at Government Code section 3560, et seq.
2

also informed that
if
there were any questions to please call the Board agent at the number
provided.
No amended charge was filed and no extension was requested. A dismissal letter was
served by mail on August 20, 2007, again directed to Gummerman as president and addressed
to Local
8.
	This letter informed Local 8
of
its right to appeal to the Board within 20 calendar
days after service
of
the dismissal and PERB's regulation allowing a written request for an
extension
of
time to appeal. Absent an extension request, the deadline for Local 8 to file its
appeal was September 14, 2007.4 No appeal was filed within this deadline nor was an
extension requested.
On November
1,
2007, Local 8 filed a letter dated October 19, 2007, with PERB
requesting it to reopen this case. The proof
of
service attached to this letter declared that it had
been placed in the mail for PERB and the University on October 23, 2007.
LOCAL 8'S FACTUAL CLAIMS
In support of its request to reopen the case, Local 8 claims that circumstances beyond
Ginez's control caused information supporting his charge contained in a letter written by Ginez
(the factual letter) not to reach PERB in a timely manner. Local 8 offers the following facts as
an explanation
of
what these circumstances were.
Ginez was out
of
the country "when the case was pending,"5 therefore his Local 8
Steward, Gummerman, had to file Ginez's unfair practice charge without his factual letter.
Local 8 claims it was intended that Gummerman would send this letter to the Board as soon as
Ginez returned.
4This deadline is calculated by counting the 20-day period pursuant to PERB
Regulation 32635(a) and the five-day extension pursuant to PERB Regulation 32130(c)
resulting in a filing deadline of September 14, 2007.
5No specific dates are given for this time period.
3

Local 8 next explains that "several events occurred simultaneously" which prevented
Ginez' s letter from being sent to the Board as planned. First, Gummerman terminated his
employment with the University, thus he no longer was a union steward. No date for this
termination is given. 	Susan Cross (Cross) followed as Ginez's steward at Gummerman's
request. No date for this transition is provided. 	Gummerman was supposed to have Ginez call
Cross for a meeting on his case but this never occurred.
When Ginez returned, he was bedridden due to back pain. No dates are given for
Ginez's return or his period
of
incapacity. 	When Cross did not hear from Ginez, she
unsuccessfully tried to contact Gummerman who was moving to a different town and not
taking calls. No dates are given for Cross' attempts to contact Gummerman. Cross next tried
to access Ginez's file in the Local 8 office but could not find it. We are not informed when she
did this. Cross was left with no knowledge about Ginez's unfair practice charge including any
filing deadlines.
Eventually Ginez met with Cross, on dates not provided, which resulted in Cross
learning this was a very complex case with information not being easily accessible. 	Cross did
have a case number and contacted a PERB Board agent, who faxed the warning and dismissal
letters to her on October 10, 2007. At that time, Cross "became certain" that Ginez's factual
letter had not been included with the charge.
Local 8 goes on to explain that Cross serves as its steward on a voluntary basis and is
not eligible for release time to conduct union business. Therefore, all the work she does as a
steward must be on her own free time which makes it difficult for her to expedite a case
handed over to her by another steward.
4

In support
of
its appeal, Local 8 attaches the factual letter from Ginez which it seeks to
have the Board agent review as part
of
the charge upon the reopening
of
this case. 	Ginez's
factual letter, addressed to PERB, is dated September 5, 2007.
THE UNIVERSITY'S RESPONSE
The University contends that Local S's request is untimely and inappropriate. The
University asserts that the September
5,
2007, factual letter from Ginez is dated after the
appeal's deadline.6
The University next argues that Gummerman could have sought an extension prior to
the August 9, 2007, deadline for filing the amended charge given he was still the union
president on August 20, 2007. The University states that Gummerman did not leave for his
new employment until September 14, 2007.
Attached to the University's response
is an August 7, 2007, letter from Local 8
updating its list
of
officers and stewards for Local
8.
	The letter does not indicate that
Gummerman is president, however, he is listed as a current steward along with Cross. The
address
of
Local 8 according to this letter is the same as that provided on the unfair practice
charge.7
DISCUSSION
Local 8 requests this case be reopened so it can file a letter authored by Ginez to the
Board in which he explains more fully the facts involved in his unfair practice charge. 	Local 8
asks that the case be reconsidered with this additional factual information.
6As is stated above, the deadline for Local 8 to appeal the Board agent's August 20,
2007, dismissal was September 14, 2007.
7This attached August 7, 2007, union letter is not referenced in the University's
response letter to PERB.
5

This request to reopen the case should be treated as an appeal pursuant to PERB' s
decision in Los Angeles Unified School District (2007) PERB Order No. Ad-368
(Los Angeles). As in the instant case, Los Angeles involved a request by the charging party
that PERB reopen their case presumably to enable them to file an amended charge. In
Los Angeles PERB held that the request
is
more appropriately considered an appeal
of
the
dismissal
of
the charge citing California Teachers Association (Underhill) (2001) PERB
Decision No. 1466.
Considering this case as an appeal from the Board agent's dismissal letter, we find
Local 8's appeal is not timely. 8 The Board agent's dismissal letter was served on August 20,
2007, thus the deadline for filing an appeal
of
the dismissal was September 14, 2007. (See
fn. 4, supra.) Local
8's
appeal was not filed until November
1,
2007, 48 days late. Therefore,
Local S's appeal cannot be considered unless PERB exercises its discretion under PERB
Regulation 32136 to excuse the late filing.
This discretion can only be exercised
if
PERB finds that the requesting party has shown
good cause for the late filing. 	(PERB Reg. 32136.9) 	The issue in this case is whether Local 8
presented facts showing the requisite good cause for a late filing. 	The Board has found good
cause exists where the excuse for the untimely filing was reasonable and credible. (Barstow
Unified School District (1996) PERB Order No. Ad-277 (Barstow). 10
8PERB Regulation 32635 provides that an appeal
of
a dismissal must be filed within 20
days
of
service
of
a dismissal.
9PERB Regulation 32136 provides, in pertinent part: "A late filing may be excused in
the discretion of the Board for good cause only."
10rn Barstow a late filing was excused under PERB Regulation 32136 where the use of
a computerized document to create another document led to the filing being inadvertently sent
to the wrong office and the opposing party made no claim of prejudice.
6

Neither party directly addressed this issue in their appellate papers. However, Local 8
did present the facts it claims caused the delay in filing Ginez's factual letter with the Board.
An analysis
of
these factual assertions and the University's response thereto indicate that Local
8 cannot present reasonable and credible evidence to support a finding
of
good cause to excuse
the late filing
of
its appeal.
Local 8 claims it was prevented from sending Ginez's factual letter to the Board
because Ginez was out
of
the country and then bedridden upon his return. No dates are given
for this travel or incapacitation by Ginez. The factual letter written by Ginez and presented
as
part
of
Local 8's appeal is dated September
5,
2007. 	This evidence establishes that the basis
for Local
8's
appeal, Ginez's letter, existed on September
5,
2007, which
is
prior to the
deadline to file Ginez's appeal. For this reason, we find Ginez's necessary travel and
incapacitation did not contribute to the late filing
of
his appeal.
Given the basis
of
Local 8's appeal existed on September
5,
2007, we must examine
what prevented Local 8 from filing a timely appeal on or before September 14, 2007. Local 8
contends that Gummerman's change
of
employment and transfer
of
Ginez's unlawful charge to
Cross caused the delay in getting Ginez's letter to the Board. However, Local 8 fails to give
the dates
of
these events to show how they prevented getting Ginez's factual letter to the Board
prior to the September 14, 2004, deadline.
The University states unequivocally that Gummerman did not leave his employment
with the University until September 14, 2007. Local 8 does not contend that Cross could not
communicate with Gummerman while he was employed by the University. Instead it is
claimed that the delay in filing Ginez's letter was caused by Cross not being able to
communicate with Gummerman after he left the University, because he was moving to a
different town and was not taking calls. From this evidence we reasonably infer that Cross'
7

inability to communicate with Gummerman regarding Ginez's appeal did not occur until after
September 14, 2007. No claim is made that she could not do so
prior to Gummerman's
employment termination. For these reasons, Gummerman's turning Ginez's case over to Cross
and her being unable to communicate with him cannot justify a late filing.
Local 8 also claims that Cross "was left completely in the dark about what complaints
had been filed where and what deadlines were looming," because she could not find Ginez's
file in Local
8's
offices. In our good cause determination, we question why Cross or someone
else from Local 8 did not request information from PERB earlier regarding Ginez' s case and
its deadlines. In its appeal, Local 8 admits that Cross knew the case number and did eventually
contact PERB for the file. 	Again no date is given for this contact, but PERB' s response to
Cross' request was October 10, 2007. Local 8 does not claim any delay was caused by PERB,
thus we infer Cross' request for a file from PERB was acted on promptly which indicates her
request was made immediately prior to or on October 10, 2007.
Assuming, arguendo, that we found the above evidence justified not filing Ginez' s
appeal during the August 20 to October
10
time period, Local 8 cannot overcome the lack
of
good cause for its delay in filing the appeal after discovering Ginez's factual letter had not
been filed. 	Cross admits that on October 10, 2007, she received Ginez's case file from PERB
and at that time "became certain" Ginez's letter had not been included with the charge. Rather
than immediately filing the present appeal within 20 days
of
that discovery, Cross did not file
the instant appeal until 22 days after learning
of
the need to reopen the case. This fact alone
precludes us from finding good cause for a late filing under PERB Regulation 32136.
For all of the above reasons PERB finds that Local 8's appeal to reopen Ginez's case is
untimely and that the Union has not presented reasonable and credible evidence justifying
good cause for PERB to excuse Local 8' s late filing.
8

ORDER
University Professional and Technical Employees, CWA Local S's request to reopen
Case No. LA-CE-1006-H
is
hereby DENIED.
Chair Neuwald and Member McKeag joined in this Decision.
9