City and County of San Francisco (PERB A407M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CLIFTON JOHNSON,
Charging Party,
V.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Appearance: 	Clifton Johnson, on his own behalf.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
Case No. SF-CE-1006-M
Administrative Appeal
PERB Order No. Ad-407-M
January 28, 2014
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on administrative appeal by Clifton Johnson (Johnson)
of
the PERB Appeals
Assistant's denial
of
Johnson's request for an extension
of
time to appeal the dismissal
of
his
unfair practice charge. The charge, as amended, alleges that the City & County
of
San Francisco (CCSF) violated the Meyers-Milias-Brown Act (MMBA)1 with respect to
Johnson's dismissal from employment.
Johnson's request for an extension
of
time was filed one day late. It was therefore
denied as untimely filed. 	Johnson filed a timely administrative appeal. The CCSF did not file
a response.
The issue before us is whether there is good cause to excuse the late filing. 	The Board
has reviewed the entire record on administrative appeal. For the reasons set forth below, the
Board finds that good cause exists to excuse the late filing.
1 The MMBA is codified at Government Code section 3500 et seq.

BACKGROUND
On November 6, 2012, Johnson filed an unfair practice charge with PERB. On
March 25, 2013, the Office
of
the General Counsel issued a warning letter informing Johnson
of
the deficiencies in the charge. In response, on April 17, 2013, Johnson filed an amended
charge. The Office
of
the General Counsel ultimately determined that the amended charge did
not cure the deficiencies and, on July 8, 2013, dismissed the charge for failure to state a prima
facie case.
By letter from Virginia Taylor (Taylor), an attorney at Bayview/Hunters Point
Community Legal, dated July 31, 2013, Taylor requested on Johnson's behalf an extension
of
time to file an appeal
of
the dismissal. The letter states that the PERB Appeals Assistant
incorrectly informed Johnson that the appeal would be due on August 5, 2013, when the appeal
was actually due on August 2, 2013, and that as a result
of
the misinformation, Johnson's
request for an extension
of
time was one day late.
By letter from the PERB Appeals Assistant dated August 2, 2013, Johnson's request for
an extension
of
time was denied as untimely filed. The letter explains that the request for an
extension oftime was due in the PERB headquarters office no later than July 30, 2013. It was
filed, however, on July 31, 2013, one day late. Johnson was informed that he could file an
administrative appeal and that it had to be filed within ten days
of
service
of
her administrative
determination denying his request. A notice
of
appearance was enclosed with the instruction
that it be completed and filed in the event Johnson was to be represented by counsel in future
filings with the Board.2
By letter dated August 16, 2013, Johnson timely filed an administrative appeal.
Attached to his letter was a declaration signed by Johnson under penalty of perjury. The
A completed notice of appearance was not filed. 	Johnson appears in these
administrative appeal proceedings in propia persona.
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declaration states that Johnson consulted with the PERB Appeals Assistant in mid-July
regarding the deadline for filing an appeal and was informed that the deadline was August 5,
2013. The declaration next states that on or around July 31, 2013, he sought the advice
of
an
attorney regarding his appeal and the attorney informed him that his appeal was due on
August 2, 2013. The declaration finally states that attorney immediately sent a letter to PERB
on Johnson's behalfrequesting an extension
of
time to file an appeal
of
the dismissal,
explaining that Johnson had been misinformed by the PERB Appeals Assistant as to the correct
deadline.
DISCUSSION
PERB Regulation 32132, subdivision (a), states that any request for an extension
of
time within which to file a document with the Board itself "shall be in writing and shall be
filed at the headquarters office at least three days before the expiration
of
the time required for
filing:"3 Under PERB Regulation 32136, a late filing may only be accepted for good cause.
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.
Good cause exists where it is evident that the party made a conscientious effort to
timely file and the delay caused no prejudice to any party in the case. (United Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325.) Generally, the Board has excused a
late filing where a non-prejudicial delay of short duration resulted from circumstances beyond
the control
of
the filing party or from excusable misinformation, and where the filing party's
explanation was either credible on its face or was corroborated by other facts. 	(Ibid.)
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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The Board has found good cause to exist in a variety
of
situations where the
justification was found to be "reasonable and credible." (Barstow Unified School District
(1996) PERB Order No. Ad-277.) For example, the Board has found good cause to exist for
"honest mistakes" such as mailing or clerical errors. (Ibid.)	
If
the Board finds the justification
to be "reasonable and credible," the Board next evaluates whether there is prejudice to the
opposing party in excusing the late filing. (Ibid.)
In Los Angeles Unified School District (2003) PERB Order No. Ad-318 (LAUSD), the
Board excused an appeal that was filed one day late. The charging party had contacted the
PERB Appeals Office to clarify the filing deadline and asserted she was not told to send the
appeal by express or certified mail. The Board found the untimely appeal was the result
of
honest error based on "misunderstood communications" and there was no evidence
of
prejudice due to the one day delay.
The circumstances involved here are similar. We have no reason to believe that the
Appeals Assistant provided Johnson with incorrect information regarding the deadline for
filing an appeal given her long experience in processing appeals and the routine nature
of
the
information requested. Given, however, Johnson's sworn declaration, the short duration
of
the
delay and the immediate action he took to correct the problem, we give Johnson the benefit
of
the doubt and accept his proffered justification as "misunderstood communications," as the
Board did in LAUSD. As there is no evidence
of
prejudice due to the brief one day delay, the
Board finds good cause to excuse Johnson's late-filed request for an extension
of
time.
ORDER
Clifton Johnson's request for an extension
of
time to file an appeal
of
the dismissal
of
his unfair practice charge in Case No. SF-CE-1066-M is deemed timely filed. 	An appeal of the
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dismissal shall be accepted as timely filed
if
received in the PERB headquarters office on or
before February 18, 2014.
Members Winslow and Banks joined in this Decision.
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