City of Redondo Beach (PERB A413M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF REDONDO BEACH,
Employer,
and
CALIFORNIA TEAMSTERS, LOCAL 911,
Exclusive Representative.
Case No. LA-IM-152-M
Administrative Appeal
PERB Order No. Ad-413-M
May 16, 2014
Appearances: Carico, Johnson & Toomey by William G. Benz, Attorney, for City of Redondo
Beach; Law Offices of Patricia S. Waldeck by Patricia S. Waldeck, Attorney, for California
Teamsters, Local 911.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by California Teamsters, Local 911 (Teamsters) of an administrative
determination (attached) by the Office of the General Counsel, which denied the Teamsters'
request for factfinding pursuant to the Meyers-Milias-Brown Act (MMBA)1 on the grounds
that it was untimely. The factfinding request was made with respect to negotiations for a
successor collective bargaining agreement between the Teamsters and the City of Redondo
Beach (City). The appeal challenged the administrative determination on the grounds that the
Teamsters was excused in its untimely filing, and that the City suffered no prejudice from the
untimely filing.
1 MMBA is codified at Government Code section 3500 et seq.

We have reviewed the record and the relevant law and find the administrative
determination to be well reasoned and supported by the facts.2 We hereby dismiss the
Teamsters' appeal and adopt the administrative determination as the decision
of
the Board
itself.
ORDER
The California Teamsters, Local
911
's
appeal
of
the administrative determination
in
Case No. LA-IM-152-M is hereby DENIED.
Chair Martinez and Member Banks joined in this Decision.
2 See City
of
Redondo Beach (2014) PERB Order Ad-409-M, in which this Board
noted: "The responsibility to request factfinding in a timely manner is [the] sole responsibility
of the employee organization." (Id. at p. 7.)
2

STATE OF CALIFORNIA 	EDMUND G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
January
7,
2014
Patricia S. Waldeck, Attorney
Law Offices
of
Patricia
S.
Waldeck
3699 Wilshire Boulevard, Suite 1200
Los Angeles, CA 90010-2732
William
G.
Benz, Attorney
Carico, Johnson, Toomey LLP
841 Apollo Street, Suite 450
El Segundo, CA 90245
Re: 	City
of
Redondo Beach and California Teamsters Local
91
I (Service, Maintenance and
Crafts Unit)
Case No. LA-IM-152-M
Administrative Determination
Dear Interested Parties:
On December 30, 2013, the California Teamsters Local
911
(Teamsters) filed a request for
factfinding with the Public Employment Relations Board (PERB or Board) pursuant to section
3505.4
of
the Meyers-Milias-Brown Act (MMBA) and PERB Regulation 32802. 1 The
factfinding request is made with respect to negotiations for a successor collective bargaining
agreement (CBA) between Teamsters and the City
of
Redondo Beach (City).
By letter dated January 3, 2014, the City objected to the factfinding request, asserting that the
request was untimely filed more than thirty days after the date impasse was reached.
By letter dated January 6, 2014, Teamsters argued that good cause exists to excuse its late
filing. 	Teamsters provides a declaration from its attorney, Patricia Waldeck (Waldeck),
attesting to the following: (1) on Friday, December 20, 2013, Waldeck prepared the factfinding
request at her home office and attempted to transmit it to her assistant via e-mail message; (2)
for unknown reasons, the form factfinding request she prepared would not go through and her
assistant could only view a blank form; (3) Waldeck attempted to personally deliver the
document to her assistant, but had to appear in court that afternoon and was unable to get the
document to her assistant in time for him to file and serve it on December 20, 2013; (4) on
Monday, December 23, 2013 (the next business day), Waldeck's assistant attempted to file the
request, but mistakenly mailed it to PERB for filing by regular mail, rather than filing it with
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-IM-152-M
January
7,
2014
Page 2
PERB electronically; and (5) due to a delay in the mail, presumably due
to
large volumes
of
mail for the Christmas holiday, PERB did not receive the factfinding request in the mail until
December 30, 2013. Teamsters also alleges that on December 19, 2013, Teamsters
representative Carlos Rubio sent an e-mail message to City management employees, including
Assistant City Manager Peter Grant, regarding the partis' impasse in bargaining and stated, in
part, "we are also considering filing for factfinding."
By e-mail message dated January
6,
2013, the City submitted a written response to Teamsters'
position statement, reiterating its objection on the basis
of
timeliness. The City alleges that it
did not receive the factfinding request until thirteen days after the filing deadline
(approximately January 2, 2014).
Discussion
MMBA section 3505.4, subdivision (a), provides as follows:
The employee organization may request that the parties'
differences be submitted to a factfinding panel . . .
If
the dispute
was not submitted to mediation, an employee organization may
request that the parties' differences be submitted to a factfinding
panel not later than 30 days following the date that either party
provided the other with a written notice
of
a declaration
of
impasse
....
PERB Regulation 32802 provides
as
follows:
(a) An exclusive representative may request that the parties'
differences be submitted to a factfinding panel. The request shall
be accompanied by a statement that the parties have been unable
to effect a settlement. Such a request may be filed:
(1) Not sooner than 30 days, but not more than 45 days,
following the appointment or selection of a mediator pursuant
either to the parties' agreement to mediate or a mediation process
required by a public agency's local rules; or
(2)
If
the dispute was not submitted to mediation, not later than
30 days following the date that either party provided the other
with written notice of a declaration of impasse.
On November 13, 2013, the City gave Teamsters a last, best, and final offer (LBFO) which, if
not accepted by November 20, 2013, would constitute a declaration of impasse. The parties
did not submit the bargaining dispute to mediation or select a mediator. Teamsters filed the
instant request for factfinding on December 30, 2013. This is more than thirty days after the

LA-IM-152-M
January 7, 2014
Page 3
November 20, 2013, date of impasse. Accordingly, the request is untimely within the meaning
of PERB Regulation 32802 and Government Code section 3505.4.
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 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 exists only where the filing party has made "a conscientious effort to timely file." 	(Ibid.)
For example, the Board excused a late filing of an amended unfair practice charge where the
Charging Party provided proof of service establishing that the document was deposited in the
mail in advance of the filing deadline. (Fallbrook Public Utility District (2012) PERB
Decision No. 2229-M.) The Board has also found good cause to excuse a late filing where a
party timely filed documents, but filed them in the wrong PERB office. (Santa Monica
Community College District (2012) PERB Order No. Ad-393.) PERB has also found good
cause where documents were timely served on the opposing party, but inadvertently not filed
with PERB due to a clerical error. (Kern Community College District (2008) PERB Order
No. Ad-372.) By contrast, the Board has not found good cause to excuse a filing that was eight
days late, where no reasonable explanation was given. (Stanislaus Consolidated Fire
Protection District (2012) PERB Order No. Ad-392-M.) Where sufficient reasons are not
provided, the Board cannot find good cause to exist based upon lack of prejudice alone.
(Stanislaus Consolidated Fire Protection District, supra, PERB Order No. Ad-392-M.) The
finding of good cause is discretionary. (Ibid.) In those circumstances where 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, supra, PERB Order No. Ad-277.)
Here, good cause to excuse the late filing of the factfinding request has not been established.
PERB regulations permit same-day filing by facsimile transmission (PERB Regulation 32090)
and by electronic filing (PERB Regulation 32091). Teamsters provides evidence explaining
that the· factfinding request form could not be prepared by Waldeck and her assistant by the
close of business on December 20, 2013, due to computer problems.2 However, there is no
explanation regarding why, once the document was completed, an effort was not made to
ensure that it was filed with PERB immediately. The document could have been filed via
2 It is noted that parties are not required to use the form PERB has provided for making
MMBA factfinding requests.

LA-IM-152-M
January 7, 2014
Page 4
facsimile or via electronic filing after the close
of
business on December 20, 2013, over the
weekend, or as soon as PERB's office was opened on Monday, December 23, 2013. However
no facts have been provided to show such an attempt was made, nor does PERB have any
record
of
having received an electronic or facsimile filing. 	It is not explained why the
document was filed by mail, and not placed in the mail for service and filing until several days
after the filing deadline had passed, on December 23, 2013. Accordingly, good cause does not
exist to excuse the late filing.
Determination
The request for factfinding is untimely filed. 	Accordingly, the factfinding provisions
of
MMBA section 3505.4 do not apply to this situation and this request is denied.
Right to Appeal
Pursuant to PERB Regulations, an aggrieved party may file an appeal directly with the Board
itself and can request an expedited review
of
this administrative determination. (Cal. Code
Regs., tit. 8,
§§
32147, subd. (a), 32350, 32360, 32802, 61060.) An appeal must be filed with
the Board itself within 10 days following the date
of
service
of
this determination. (Cal. Code
Regs., tit. 8, § 32360, subd. (b).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board. (Ibid.)
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code
Regs., tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8,
§§ 32090 and
32130.)
The Board's address is: 	Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
an aggrieved party appeals this determination, the other party may file with the Board an
original and five copies of a statement in opposition within 10 calendar days following the date
of service of the appeal. (Cal. Code Regs., tit. 8, § 32375.)

LA-IM-152-M
January 7, 2014
Page 5
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)