California School Employees Association and Its Chapters 246, 336 and 617 (PERB A372E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KERN COMMUNITY COLLEGE DISTRICT,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTERS 246,336 &
617,
Respondent.
Case No. LA-CO-1324-E
Administrative Appeal
PERB Order No. Ad-372
April 21, 2008
Appearances: 	Liebert Cassidy Whitmore by Mary L. Dowell and Eileen O'Hare Anderson,
Attorneys, for Kern Community College District; California School Employees Association by
Sonja J. Woodward, Staff Attorney, for California School Employees Association & its
Chapters 246, 336 & 617.
Before Neuwald, Chair; Wesley and Rystrom, Members.
DECISION
NEUW ALD, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Kern Community College District (District) that the Board
excuse its late-filed appeal of a Board agent's dismissal of their unfair practice charge. Having
reviewed the appeal of the administrative decision and the California School Employees
Association & its Chapters 246, 336 & 617 (CSEA) opposition, the Board finds good cause to
excuse the late filing. 1
BACKGROUND
The Board agent dismissed the unfair practice charge on February 22, 2008. 	An appeal
to the dismissal was due to be filed with PERB on March 13, 2008. No appeal was filed by
this date. 	The District, however, served a copy of the appeal on CSEA on March 13, 2008. 	On
1Because this is an administrative appeal and we excuse the late filing, CSEA will
have twenty days from the date of this decision to file a response pursuant to PERB
Regulation 32635(c). 	(PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et. seq.)

April 1, 2008, a staff attorney for CSEA contacted the Appeals Assistant to request an
extension to respond to the appeal. The Appeals Assistant informed her that no appeal was
filed. 	The staff attorney also contacted the Board agent in PERB' s Los Angeles office to see if
by chance the appeal was misdirected to that office. The staff attorney for CSEA then
contacted the District's counsel to inquire whether an appeal was actually filed. 	After
receiving the phone call, the District's attorney confirmed with both the Appeals Assistant and
the Board agent that an appeal was not filed. 	The Appeals Assistant verbally dismissed the
appeal as untimely. That same day, April 1, 2008, the District filed an appeal of the
administrative dismissal as well as a copy of the appeal to the amended unfair practice charge
dated March 13, 2008. The District's appeal is supported by the Declaration of Eileen O'Hare
Anderson of Liebert Cassidy Whitmore, attorneys for the District. The declaration was signed
under penalty of perjury and contained the documents referenced above. 	CSEA filed its
opposition to the administrative appeal on April 9, 2008.
THE DISTRICT'S APPEAL
The District argues that good cause exists for the Board to excuse the late filing of its
appeal. 	Specifically, the District states that the secretary attempted to file in a timely fashion,
but due to an inadvertent error, the mechanics of the filing went awry. 	The District further
argues that CSEA was not prejudiced by the late filing as they were timely served.
Additionally, the District argues that the secretary believed she completed all the steps
necessary to complete the filing when she served the appeal on CSEA.
CSEA'S OPPOSITION
CSEA filed its opposition on April 9, 2008, arguing that the District failed to
demonstrate good cause to excuse a late failing of its appeal. Specifically, CSEA argues that
the delay in filing was not: 	(1) of a short duration; (2) based on excusable misinformation or
2

circumstances beyond the control of the charging party; (3) a clerical error; and (4) the cases
cited by charging party are distinguishable.
DISCUSSION
Under PERB Regulation 32136, the Board may excuse a late filing for good cause. The
Board has found good cause in situations where the justification was "reasonable and
credible." (Lodi Unified School District (2005) PERB Order No. Ad-346 (Lodi); Barstow
Unified School District (1996) PERB Order No. Ad-277.) The Board has deemed '"honest
mistakes,' such as mailing or clerical errors, to show good cause." (State of California
(Department of Transportation) (2003) PERB Order No. Ad-326-S.) For example, in Lodi the
Board excused a late filing based upon an attorney's plausible explanation that a trustworthy
employee failed to file a response with PERB either by fax or by personal service but properly
and timely served its response on the opposing party.
The facts in this case are similar to those in Lodi. The District's attorney completed the
appeal on the due date, March 13, 2008. She returned the documents to her secretary, a trusted
assistant with over 22 years experience, to be filed with PERB. The secretary served the
appeal on CSEA, but failed to file the document with PERB either by fax or by personal
service. As a result, the District's appeal was not filed with the Board until 19 days after the
due date. CSEA argues that this is a substantial delay and, therefore, good cause does not
exist. 	We would agree with CSEA had the District not filed an administrative appeal as well
as its appeal on the same day it received notification that no appeal was filed. 	In this situation,
we find that the District's explanation for the late filing is reasonable and credible.
If the justification is found to be reasonable and credible, then the Board evaluates
whether there is prejudice to the opposing party in excusing the late filing. 	(Lodi.) Here, the
proof of service shows that the District's appeal was properly and timely served on CSEA.
3

CSEA phoned the Appeals Assistant to request an extension to file its reply on April 1, 2008.
Therefore, CSEA is not prejudiced by the District's late filing.
In light of the above discussion, the Board finds that the District demonstrated good
cause to excuse its late-filed appeal.
ORDER
The request by the Kern Community College District (District) to accept its late-filed
appeal in Case No. LA-CO-1324-E is hereby GRANTED.
The California School Employees Association & its Chapters 246, 336 & 617 will have
twenty (20) days from service of this decision to file an opposition to the District's appeal of
dismissal.
Members Wesley and Rystrom joined in this Decision.
4