Stanislaus Consolidated Fire Protection District (PERB A392M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANISLAUS CONSOLIDATED
FIREFIGHTERS, LOCAL 3399,
Charging Party,
V.
STANISLAUS CONSOLIDATED FIRE
PROTECTION DISTRICT,
Respondent.
Case No. SA-CE-711-M
Administrative Appeal
PERB Order No. Ad-392-M
January 19, 2012
Appearance: 	Law Offices
of
William
D.
Ross, Attorney, for Stanislaus Consolidated Fire
Protection District.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on an administrative appeal
of
the PERB Appeals Assistant's determination
that the Stanislaus Consolidated Fire Protection District's (District) response to the appeal
of
the partial dismissal
of
the unfair practice charge was untimely filed.
The Board has reviewed the Appeals Assistant's determination and the record in light
of
the District's administrative appeal and the relevant law. Based on this review, the Board
does not find good cause to excuse the late-filed response to the appeal.
BACKGROUND
Pursuant to PERB Regulation 3263
5,
subdivision (a), 1 the Stanislaus Consolidated
Firefighters, Local 3399 (Local 3399) timely filed an appeal of the Board agent's partial
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

dismissal on August 10, 2011. Under subdivision (c), any other party may file a statement in
opposition to the appeal within 20 days following the date
of
service
of
the appeal. Under this
regulation, the District's response to the appeal was due to be filed no later than August 30,
2011. The District filed its response on September 7, 2011, eight days late. The District stated
in its response:
It is acknowledged that submission
of
this response is late,
however we would note that PERB Regulations are directory
as opposed to mandatory. 	[Citations omitted.] This office
respectfully requests that the PERB accepts this late filing because
a portion
of
the PERB decision warrants clarification,
...
Additionally, consideration
of
this response does not prejudice the
Local. 	[Citations omitted.]
By letter dated September 13, 2011, the Board's Appeals Assistant informed the
District that its response to the appeal was untimely and that the District could appeal the
timeliness issue to the Board itself under PERB Regulation 32360 governing appeals
of
administrative decisions. On September 28, 2011, the District timely filed an administrative
appeal
of
the Appeal Assistant's administrative decision, reiterating arguments advanced in its
initial response. 2
DISCUSSION
PERB Regulation 32136 provides as follows:
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.
The District also requested that "the Board accept its response consistent with
Regulation 32410 because, among other things, the Partial Dismissal contains prejudicial
errors
of
fact that require clarification and correction." PERB Regulation 32410 governs
requests for reconsideration
of
a decision of the Board itself. The District's appeal of the
timeliness issue is taken from an administrative decision of a Board agent, and not from a
decision of the Board itself. As stated in the Appeal Assistant's letter of September 13, 2011,
the District's appeal is governed by PERB Regulation 32360, not PERB Regulation 32410.
2

Thus, pursuant
to
PERB Regulation 32136, the Board may, in its discretion, excuse a late
filing for good cause. The Board has found good cause to exist where the explanation for the
delay was "reasonable and credible." (Barstow Unified School District (1996) PERB Order
No. Ad-277 (Barstow).) The Board has also found good cause to exist for "honest mistakes"
such as mailing or clerical errors. (Ibid.) Good cause has been found to exist where a short
delay resulted from circumstances beyond the control
of
the filing party or from excusable
misinformation. (United Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325
(Kestin).) Good cause has also been found to exist where the filing party's explanation was
either credible on its face or corroborated by other facts or testimony. (Ibid) Good cause
exists only where the filing party has made
"a
conscientious effort to timely file." (Ibid.)	
If
the reason for the untimely filing is "reasonable and credible," the Board then evaluates
whether permitting a late filing would be prejudicial to the opposing party. (Barstow.)
Here, the District filed its response to the appeal eight days late. It is impossible for the
Board to determine whether the District's reasons for the late filing are reasonable and
credible, because no reasons were given. 3
It
is unknown whether the District made an honest
mistake or whether the delay resulted from circumstances beyond the District's control or from
excusable misinformation. As there is no information upon which to evaluate whether the
3 The District asserts that it was served with an incomplete copy of the appeal and that
it did not receive a complete copy until the next day, August 11, 2011.	
If
the District was
disadvantaged by this one day delay, it had the duty to request an extension of time under
PERB Regulation 32132. Under this regulation, a request for an extension ohime must be
filed at least three days prior to 	expiration of the time required for filing. 	Extensions
of
time may be granted by the Board for good cause. The District had ample time within which
to request an extension but no request was made. The District also asserts that it did not
receive a copy of the exhibits referenced in the appeal. The exhibits referenced in the appeal
appear to be exhibits to the original unfair practice charge filed on February 9, 2011, not to the
appeal itself.
3

District made a conscientious effort to timely file its response to the appeal, the District's
request that the Board accept its late filed response must be denied.
The District argues that there is no prejudice to the opposing party. Even
if
no
prejudice can be inferred from the lack
of
any opposition to the District's request, prejudice is
only one part
of
the equation. Without the opportunity to evaluate whether the District's
reasons for the late filing are "reasonable and credible" under the standards set forth above, the
Board cannot find good cause to exist based on lack
of
prejudice alone. The cases cited by the
District are
of
no avail. Coronado Unified School District (Goodman) (1989) PERB Order
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to file exceptions to a proposed decision. Requests for extensions
of
time are also decided
under a good cause standard. (PERB Reg. 32132.) The charging party's stated reason for the
late filing was that her attorney would be out
of
town until the last day for filing. 	In the
absence
of
detailed information from the charging party concerning counsel's unavailability,
the Board found charging party's reason for the late filing insufficient and affirmed the denial
of
her request for extension.4 This decision does not support the District's argument. In
Goodman, the filing party provided the Board with a possible basis upon which to find good
cause, which was nonetheless found to be insufficient. Here, the District provides the Board
with no possible basis.
The District relies on the dissent 	Goodman and on two appellate opinions5 for the
principle that PERB' s regulations are directory or directional as opposed to jurisdictional.
The District cites a number of decisions involving irregularities in compliance with
service of process requirements. These decisions are inapposite to the issue presented.
5 San Diego Adult Educators
v.
Public Employment Relations Bd. (1990) 223
Cal.App.3d 1124, 1132 (San Diego); and Californians for Population Stabilization
v.
Hewlitt
Packard Company (1997) 58 Cal.App.4 th 273,284.
4

That the expiration of a PERB timeline has not been construed as stripping PERB of
jurisdiction to hear the underlying case does not negate the requirements contained in PERB' s
regulatory scheme. PERB Regulation 32136 governing late filings is unambiguous. Whether
to accept a late filing is discretionary. Discretion resides with the Board. The Board is
authorized to exercise its discretion only upon a demonstration of good cause.
The District relies on Modesto Irrigation District (2006) PERB Decision No. 1856-M
(Modesto) for the principle that "good cause" is a flexible standard, which is defined and
constrained by considerations of fairness and reasonableness. As here, Modesto involved a
response to an appeal of a dismissal, filed eight days late with a request that it be accepted as
timely filed. 	The stated reasons for the late filing were twofold. The filing party was
anticipating an additional notice from PERB setting forth the timelines; and a key employee
critical to crafting a complete response was on an extended leave of absence. The facts in
Modesto are no different than the facts here, except the filing party in }vfodesto proffered two
possible bases upon which to support a finding of good cause. The Board rejected both, stating
that the filing party did not adequately explain how it was prevented from making a
conscientious effort to timely file its response. V/hile "good cause" may be a flexible standard,
it is not so flexible as to lose all meaning.
The District also relies on Kestin, which involved a late-filed appeal of a dismissal.
The filing party asserted that the dismissal was lost in the mail but failed to substantiate that
assertion through declarations of third parties or other evidence. The Board found that the
filing party made no conscientious effort to 	file and therefore concluded that there was
no good cause to excuse the late filing. 	consequences in Kestin were severe. The appeal
5

could not be heard. Here, notwithstanding the Board's denial of the District's request that its
late-filed response be excused, the appeal proceeds.6
Barstow is the only case cited by the District in which the Board found good cause to
excuse a late filing. Barstow, however, involved an inadvertent error, which caused an
otherwise timely response to be filed in the wrong PERB office. By the time that office
forwarded the filing to the correct PERB office, it was two days late. The facts of this case
bear no resemblance to the facts in Barstow.
Finally, the District claims that its response to the appeal is critically needed to clarify
whether Section 20-2 of the memorandum of understanding exists in the successor agreement.
All that is before the Board at this juncture is the timeliness of its response.
Based on the foregoing, the District's request that the Board excuse its late-filed
response to the appeal is hereby denied.
ORDER
The request by the Stanislaus Consolidated Fire Protection District that the Public
Employment Relations Board excuse its late-filed response to the appeal of the partial
dismissal of the unfair practice charge in Case No. SA-CE-711-M is hereby DENIED.
Members Dowdin Calvillo and Huguenin joined in this Decision.
The District relies on San Diego in making the following argument: "Where a
regulation is directory, there is strong public policy in favor of hearing appeals on the merits
[sic] operates against depriving an aggrieved party or attorney of a right to appeal because of
noncompliance with technical requirements." (Bold in the original.) The appeal here concerns
a partial dismissal of Local 3399's allegations. Local 3399 is the aggrieved party, not the
District.
6