Stanislaus Consolidated Fire Protection District (PERB A394M)

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-394-M
May 23, 2012
Appearances: Wylie, McBride, Platten & Renner by Carol L. Koenig, Attorney, for Stanislaus
Consolidated Firefighters, Local 3399; Law Offices of William D. Ross by 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 administrative appeal of the PERB Appeals Assistant's denial of the
Stanislaus Consolidated Fire Protection District's (District) request for extension of time to file
a request for reconsideration in Stanislaus Consolidated Fire Protection District (2012) PERB
Order No. Ad-392-M (Stanislaus I).
The Board has reviewed the entire record including the appeal and the response thereto.
Based on our review, the Board affirms the Appeals Assistant's denial of the District's request
for extension of time to file a request for reconsideration as untimely. By this action, the
Board's 	in Stanislaus I is deemed final.
PROCEDURAL HISTORY
The appeal of the Office of General Counsel's partial dismissal of the unfair practice
charge resulted in two Board decisions: 	(1) Stanislaus I issued on January 19, 2012, arising

out of the District's administrative appeal of the PERB Appeals Assistant's determination
finding that the District's response to the appeal of the partial dismissal was untimely filed;
and (2) Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M
(Stanislaus II) issued on January 20, 2012, arising out of the Stanislaus Consolidated
Firefighters, Local 3399's (Local 3399) appeal of the Office of General Counsel's partial
dismissal of the unfair practice charge.
In regard to Stanislaus I, a request for reconsideration of the Board's Order was due in
the PERB headquarters office no later than February 13, 2012. In regard to Stanislaus II, a
request for reconsideration of the Board's decision was due on February 14, 2012. (See
PERB Reg. 32410, subd. (a) [20 days to file a request for reconsideration]; PERB Reg. 32130,
subd. (c) [5 additional days for service by mail].) 1
On February 13, 2012, the day the request for reconsideration of Stanislaus !was due,
the District timely filed a request for extension of time to file a request for reconsideration of
Stanislaus II (District's request for extension). (See PERB Reg. 32132, subd. (a) [request for
extension due 3 days prior to expiration of deadline]; PERB Reg. 32130, subd. (b) [time
extended to next regular business day when last date to file falls on a weekend].) The
District's request for extension made no mention of Stanislaus I. 	The District's request for
extension provided in pertinent part:
This communication confirms that opposing counsel has agreed
to a [sic] extend the time in which [the District] may file a
Request for Reconsideration of the Decision No. 2231-M filed on
January 20, 2012 from Tuesday, February 14, 2012 to Thursday,
February 16, 2012.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. and may be found on the Internet at www.perb.ca.gov.
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On February 14, 2012, the District filed an "amended" request for extension
of
time
to
file a request for reconsideration (District's amended request for extension), which provided in
pertinent part:
This communication confirms that opposing counsel has agreed
to a [sic] extend the time in which [the District] may file a
Request for Reconsideration
of
the Decisions filed on January 19,
and 20, 2012 to Thursday, February 16, 2012.
By
letter
of
February 14, 2012, the Appeals Assistant informed the parties that the
District's request for extension
of
time to file a request for reconsideration
of
Stanislaus
If
was
granted. On February 16, 2012, the District filed a single document that combined the
District's requests for reconsideration
of
both Stanislaus I and Stanislaus II.
By letter
of
April 27, 2012, the Appeals Assistant informed the parties that the
District's request for reconsideration
of
Stanislaus
II
was timely filed, 2 and that the District's
request for reconsideration
of
Stanislaus I was not. As the Appeals Assistant explained, the
request for reconsideration
of
Stanislaus
/was
due on February 13, 2012. A request for an
extension
of
time by which to file a request for reconsideration
of
Stanislaus I should have
been filed on or before February 10,2012. The District's amended request for extension was
not filed until February 14, 2012, four days later and one day after the request for
reconsideration
of
Stanislaus I was due. Therefore, the District's amended request for
extension as it concerned Stanislaus I was denied as untimely filed.
On May 7, 201 	the District timely filed an administrative appeal
of
the Appeals
Assistant's denial
of
the District's amended request for extension
of
time to file a request for
reconsideration of Stanislaus
I.	
On May 10, 2012, Local 3399 filed its response.
The District's request for reconsideration of Stanislaus II will be addressed in a
separate decision to be issued by the Board.
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DISCUSSION
The District argues that its request for reconsideration
of
Stanislaus I was filed
only
three days after it was due; and, in any event, Local 3399 had agreed to the extension.
In response, Local 3399 contends that counsel for the District did not specifically refer
to Stanislaus I when seeking agreement on an extension and therefore there was no meeting
of
the minds on that issue. Local 3399 states:
There was no understanding by the Union that the request
incorporated both the Decision and the Order. The Union's legal
counsel has no reason to doubt that the District's legal counsel
intended to incorporate both and believed that this was the
message that was conveyed. But, as noted above, the message
sent was not the one delivered. Indeed, had the Union's legal
counsel understood the Fire District was still attempting to add
the late filed response to the record, she would not have agreed so
readily to the extension.
Local 3399 contends that the continual delays in this case have resulted in the denial
of
a
determination
of
fundamental union access rights, that Local 3399 is prejudiced thereby, and
that the Board should affirm the denial
of
the District's amended request for extension.
PERB Regulation 32132, subdivision (a), provides in pertinent part:
A request for an extension
of
time within which to file any
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. 	The request shall
indicate the reason for the request and,
if
known, the position
of
each other party regarding the extension. Service and proof
of
service pursuant to Section 3 2140 are required. Extensions
of
time may be granted by the Board itself or an agent designated by
the Board itself for good cause only.
As explained above, a request for extension
of
time was due on or before February 10, 2012.
Even had the District's request for extension of February 13, 2012, included a request for
extension of time to file a request for reconsideration of Stanislaus I, and not just Stanislaus II,
it still would have been untimely.
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Moreover, February 13, 2012, was the last day by which to file the request for
reconsideration of Stanislaus I. The District's amended request for extension, which
referenced Stanislaus I for the first time, was not filed until the next day. It is antithetical to
the regulatory scheme to grant a request for extension of time to file a document where the
time period for filing that document has already expired. The District asserts that there was no
"indication from PERB that the amended communication sent by the District on February 14,
2012 was not acceptable." The letter of February 14, 2012, from the Appeals Assistant
granting the District's request for extension, however, specifically only referenced
Stanislaus 11, and not Stanislaus I. We view the District's assertion as an effort to shift
responsibility for its own late filing mistake to PERB.
The District's mistake is all the more confounding given the District's prior late filing
issues addressed by the Board in Stanislaus I. 	The Board stated in pertinent part:
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 of time must be filed at least three days prior to the
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.
(Stanislaus I, p. 3, fn. 3.)
PERB Regulation 32136 provides that a "late filing may be excused 	the discretion of
the Board for good cause only." The District has not offered any explanation as to why it
could not have filed a request for extension of time to file a request for reconsideration of
Stanislaus I on or before February 10, 2012. While the District may well have intended to seek
an extension of time to request reconsideration of Stanislaus I in a timely manner, it simply
failed to do so and the circumstances presented by the District do not constitute "good cause."
The delay did not result from circumstances beyond the control of the District or from
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excusable misinformation. (United Teachers of Los Angeles (Kestin) (2003) PERB Order
No. Ad-325.) 	The multiple errors were not of the mailing or clerical type found to constitute
an "honest mistake." (Barstow Unified School District (1996) PERB Order No. Ad-277.) We
conclude that the District did not make a conscientious effort to timely file, and therefore good
cause does not exist. Accordingly, the Board declines to exercise its discretion to excuse the
late filing of the District's amended request for an extension.
Moreover, even if we were to excuse the late filing of the District's amended request
for extension and deem it to be timely filed, we find no merit in the District's arguments in
support of its request for reconsideration of Stanislaus I. 	PERB Regulation 32410,
subdivision (a), limits the grounds for requesting reconsideration to claims that: "(1) the
decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly
discovered evidence which was not previously available and could not have been discovered
with the exercise of reasonable diligence."
The District's arguments are contained in two short paragraphs, which in main part
reiterate arguments made by the District in its administrative appeal, i.e., that the standard
under Code of Civil Procedure section 4 73 is "apropos with" PERB' s good cause standard and
that the District's response to the appeal is necessary to clarify prejudicial errors of fact
regarding MOU section 20-2. A request for reconsideration, however, is not an opportunity to
ask the Board to "try again." (Chula Vista Elementary School District (2004) PERB
No. 1557a.) A party may not use this process to reargue or relitigate issues that have already
been decided. 	(Ibid.; San Bernardino Teachers Association CTAINEA (Cooksey) (200) PERB
Decision No. 1387.)
In addition, the District explains for the first time in these proceedings why its original
response to the appeal was untimely. The District claims that its untimely filing was "the
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result of an error in the calendaring procedures, which in this instance failed and which have
since been remedied." Taking the District's explanation at face value, it suffices to say that it
meets neither ground for requesting reconsideration.
In conclusion, good cause does not exist to excuse the late filing of the District's
amended request for extension. Even if the filing were timely, the District's request for
reconsideration of Stanislaus I would have been denied on the merits.
ORDER
The Stanislaus Consolidated Fire Protection District's (District) request in Case
No. SA-CE-711-M that the Board accepts as timely filed the District's amended request for
extension of time by which to request reconsideration of the Board's decision in Stanislaus
Consolidated Fire Protection District (2012) PERB Order No. Ad-392-M is hereby DENIED.
Members Dowdin Calvillo and Huguenin joined in this Decision.
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