Newport-Mesa Unified School District (PERB A373E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARC
Z.
KATZ,
Charging Party,
V.
NEWPORT-MESA UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5125-E
Administrative Appeal
PERB Order No. Ad-3
73
May
9,
2008
Appearances: 	Marc
Z.
Katz, on his own behalf; Parker & Covert by Steven Montanez,
Attorney, for Newport-Mesa Unified School District.
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on an administrative appeal by Marc
Z.
Katz (Katz)
of
the PERB Appeals
Assistant's determination that his appeal
of
the dismissal
of
his unfair practice charge was
untimely filed.
The Board has reviewed the entire record in this matter, including the administrative
appeal filed by Katz. Katz fails to state good cause for his late filed appeal as discussed below.
BACKGROUND
On October 15, 2007, Katz's unfair practice charge was filed with PERB. His charge
alleged that the Newport-Mesa Unified School District (District) discriminated against him
because of his participation in protected activity. 	On October 31, 2007, a Board agent issued a
warning letter informing Katz that his charge was deficient in that he failed to properly file a
proof of service and failed to state a prima facie case. 	The letter stated that the Board agent
telephoned Katz on two occasions leaving messages with Katz's friend and the friend's son

requesting that Katz return the call. The Board agent was told that Katz was traveling but that
any correspondence should be sent to Katz's mailing address. When Katz did not respond to
the warning letter, the Board agent dismissed the charge on November 13, 2007.
On March 5, 2008, Katz submitted a letter to the Board agent which he referred to as
"First Amended Unfair Practice Charge No. LA-CE-5125-E." On March 25, 2008, the
Appeals Assistant sent a letter to Katz acknowledging his letter, informing him that his appeal
of the Board agent's dismissal was untimely as it was due no later than December 10, 2007, 1
and therefore his appeal was denied.
On April 1, 2008, Katz responded to the Appeals Assistant's letter with his account of
what transpired since his charge was initially filed. 	He argues that he was "traveling out of the
country and unavailable for reasons of personal necessity" at the time the Board agent
reviewed his charge. Katz further stated that he did not return to Oregon until March 2008 and
that the Board agent was aware that he had not received any of his letters. Katz also made a
vague reference to health issues to excuse the delay, stating "there are compelling personal
reasons of health for the long delay in filing this petition."
The Appeals Assistant notified Katz on April 8, 2008 that his April 1 correspondence
would be considered by the Board as an administrative appeal. 	On April 23, 2008, the District
filed its opposition to Katz's administrative appeal arguing that Katz failed to show good cause
under PERB Regulation 32136.2 The District further argued that it would be prejudiced if Katz
1Katz's appeal of the Board agent's dismissal was actually due on or before
December 13, 2007, as his filings are from out of state.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq. PERB Regulation 32136 states:
A late filing may be excused in the discretion of the Board for
good cause only. A late filing which has been excused becomes a
timely filing under these regulations.
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were allowed to file late, as the allegations relate to matters that occurred in 1999 and 2000 and
many
of
the individuals named in the charge were no longer with the District.
DISCUSSION
Under PERB Regulation 32136 late filings may be excused by the Board for "good
cause." Generally, good cause is shown where the late-filing has been caused by
circumstances beyond the party's control. 	(United Teachers
of
Los Angeles (Kestin) (2003)
PERB Order No. Ad-325.) The Board has found good cause in situations where the
justification was "reasonable and credible." (Barstow Unified School District (1996) PERB
Order No. Ad-277.)
In the instant case, Katz argues that he did not timely file an appeal
of
the dismissal
of
his charge because he was traveling out
of
"personal necessity." He offers no further
explanation or documentation
to
support or explain a delay
of
almost three months. The Board
finds his argument neither reasonable nor credible under the circumstances outlined. Katz also
asserts, without explanation, that "reasons
of
health" caused the delay in filing. 	In AFT
College Staff Guild, Local 1521 (Mrvichin) (2005) PERB Order No. 349, the Board held that a
party must explain how an illness precluded timely filing. 	Katz does not satisfy this
requirement. Therefore, Katz has not demonstrated good cause to excuse the late-filed appeal.
ORDER
The request by Marc Z. Katz that the Board excuse his late-filed appeal
of
the dismissal
of
his unfair practice charge in Case No. LA-CE-5125 is hereby DENIED.
Members McKeag and Dowdin Calvillo joined in this Decision.
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