Santa Monica Community College District (PERB A393E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANT A MONICA COLLEGE FACULTY
ASSOCIATION,
Charging Party,
V.
SANT A MONICA COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-5581-E
Administrative Appeal
PERB Order No. Ad-393
February 29, 2012
Appearance: 	Fagen, Friedman & Fulfrost by Anna
J.
Miller, Attorney, for Santa Monica
Community College District.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ: This case is before the Public Employment Relations Board (PERB or
Board) on appeal
of
an administrative determination arising out
of
the Santa Monica
Community College District's (District) response to the appeal from the Board agent's
dismissal
of
the unfair practice charge. The administrative determination denied the District's
response as untimely filed.
The Board has reviewed the entire record in this matter. Based on the Board's review
and application
of
the relevant law, the Board finds good cause to excuse the District's late-
filed response to the appeal.
BACKGROUND
According to a declaration signed under penalty of perjury by the District's attorney,
the following occurred. On December 19, 2011, the District's attorney instructed a secretary at
her firm to file the District's response with PERB in both the Los Angeles regional office and

in the headquarters office. On December 19, 2011, the secretary filed the response in the
Los Angeles regional office, and served opposing counsel, but did not file the response in the
headquarters office. On December 28, 2011, the Board agent who had processed the charge
and issued the dismissal on behalf
of
the Office
of
General Counsel notified the District's
attorney
of
the filing defect. 	On December 28, 2011, the office
of
the District's attorney sent a
copy
of
the District's December 19, 2011, response to the headquarters office by facsimile,
along with a cover sheet containing the following note:
Response to Appeal
of
the Dismissal attached for filing. NOTE:
ORIGINAL WAS FILED WITH THE LOS ANGELES
REGIONAL OFFICE ON 12/19/11. THE RESPONSE WAS
MISTAKENLY NOT FILED WITH THE SACRAMENTO
OFFICE WHEN FILED WITH THE LOS ANGELES OFFICE.
SEE FAX CONFIRMATION SHEETS OF ORIGNIAL FILING.
DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a), 1 the Santa Monica College
Faculty Association (Associat~on) timely filed an appeal from a Board agent's dismissal
of
its
unfair practice charge. Under subdivision (c)
of
PERB Regulation 32635, any other party may
file a statement in opposition to an appeal within 20 days following the date
of
service
of
the
appeal with the Board itself in the headquarters office. The District's response was due by
December 19, 2011. The District filed its response with PERB on December 19, 2011, but
only in the Los Angeles regional office and not in the headquarters office. By the time the
headquarters office received the District's response, it was nine days late.
PERB Regulation 32136 provides:
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.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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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.)
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 made a conscientious effort to timely file its response to the appeal.
The District's response was prepared in a timely fashion, but filed in the wrong PERB office
on account
of
a secretarial error. 	When the error was brought to the attention
of
the District,
the District's attorney immediately undertook to correct the problem by notifying the
headquarters office
of
the mistake and providing that office with a copy
of
the District's
original response filed in the Los Angeles regional office on December 19, 2011. The District
served its original response on the Association when the response was filed in the Los Angeles
regional office on December 19, 2011. The Association did not file a response to the
District's administrative appeal, as permitted under PERB Regulation 32375. We find that the
District's reasons for the untimely filing are reasonable and credible. We also find that
permitting a late filing will not result in prejudice to the Association.
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Accordingly, we conclude that the District has demonstrated good cause under
PERB Regulation 32136. (See, e.g., Barstow [Board found good cause to excuse a late filing
where an inadvertent error caused an otherwise timely response to be filed in the wrong PERB
office).) Based on our finding of good cause, the Board hereby exercises its discretion to
excuse the District's late-filed response to the appeal. The District's response is deemed
timely filed.
ORDER
The Santa Monica Community College District's request that the Public Employment
Relations Board excuse its late-filed response to the appeal from the dismissal in Case
No. LA-CE-5581-E is hereby GRANTED.
Members McKeag and Dowdin Calvillo joined in this Decision.
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