City of Oakland (Oakland Fire Department) (PERB A425M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHEEHAN GILLIS,
Charging Party,
v.
CITY OF OAKLAND (OAKLAND FIRE
DEPARTMENT),
Respondent.
Case No. SF-CE-1251-M
Administrative Appeal
PERB Order No. Ad-425-M
June 24, 2015
Appearances: Sheehan Gillis, in propria persona; Renne, Sloan, Holtzman & Sakai by
Erich W. Shiners, Attorney, for City
of
Oakland (Oakland Fire Department).
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Sheehan Gillis (Gillis)
of
an administrative determination by
PERB's Appeals Assistant dismissing as not timely filed Gillis's appeal
of
the dismissal
of
his
unfair practice charge by PERB' s Office
of
the General Counsel.
We have reviewed the entire record in this matter and find that the Appeal Assistant's
administrative determination was not in accordance with Board precedent. Therefore, we
reverse the Appeal Assistant's administrative determination and remand the matter for further
processing.
BACKGROUND
Gillis is employed by the City
of
Oakland (Oakland Fire Department) (City) as an
emergency medical services coordinator. Gillis is a member
of
the management employees
bargaining unit which is represented by the International Federation
of
Professional &
Technical Engineers, Local 21, AFL-CIO (Local 21).

The Initial and Amended Unfair Practice Charge
On October 8, 2014, Gillis filed
an
unfair practice charge alleging that on seven (7)
separate occasions between June 25, 2013 and August 21, 2014, 1 he was denied
representational rights during meetings with City Fire Division Manager Stewart McGehee
(McGehee). Gillis' charge purported to be filed by Local
21
and described his title as "Dir.
Political H & M." In support
of
his allegations, Gillis submitted several e-mail exchanges; a
copy
of
a grievance filed by Gillis regarding McGehee' s denial
of
his representational rights;
and a step two grievance response denying Gillis' grievance from City Fire Chief
Teresa Deloach Reed (Reed).
On November 21, 2014, the City filed its first position statement asserting that:
(1) PERB lacked jurisdiction under Meyers-Milias-Brown Act (MMBA)2 section 3509(f)
because Gillis is a management employee; (2) six
of
the seven alleged violations occurred
beyond the six-month statute
of
limitations; (3) Gillis failed
to
allege facts showing that his
representational rights were violated on the one timely allegation; and (4) Gillis' charge failed
to provide a "clear and concise statement
of
the facts and conduct alleged to constitute an
unfair practice" as required under PERB Regulation 32615(a)(5)3.
On November 24, 2014, Gillis filed his first amended charge alleging two additional
denials by McGehee
of
his representational rights on July 30 and November 20, 2014. On
December 19, 2014, the City filed its second position statement reiterating its contentions from
1 Gillis' initial and amended unfair practice charges refer to an incident on August 21,
2013. However, the documents submitted in support
of
his allegation concerning this incident
are dated August 21, 2014.
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

its first position statement and asserting that Gillis' November 20, 2014, allegation that he was
denied representational rights also failed to comply with PERB Regulation 32615(a)(5)4. On
January 8, 2015, the City submitted a copy
of
its Employer-Employee Relations Resolution
(EERR) in support
of
its position statement.
Warning and Dismissal Letters
On
January 13, 2015, the Office
of
the General Counsel sent Gillis a warning letter
notifying him that his charges failed to state a prima facie case. The Office
of
the General
Counsel noted that Gillis was a management employee
of
the City and, while he had a right to
join an employee organization under MMBA section 3507.5, PERB lacked jurisdiction under
MMBA section 3509(:f) over employees designated as management employees.
11}
addition,
the Office
of
the General Counsel determined that seven (7)
of
Gillis' nine (9) allegations were
not timely alleged because they occurred outside
of
PERB's six-month statute
of
limitations.
With regard to Gillis' two timely allegations, the Office
of
the General Counsel
determined that Gillis failed to allege sufficient facts to establish that he was denied
representational rights. The Office
of
the General Counsel noted that mere legal conclusions
and references to attached documents did
not
sufficiently state a prima facie case. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S; County
of
Riverside (2013) PERB Decision No. 2307-M.) Gillis was afforded the opportunity to
amend his charge to correct the deficiencies explained in the warning letter.
Gillis did not submit a second amended charge curing the deficiencies noted in the
warning letter. On January 29, 2015, the Office
of
the General Counsel dismissed Gillis'
charge. The dismissal letter informed Gillis that he could appeal the dismissal
of
his charge
and described the filing requirements under PERB Regulation 32635.
4 The City did not address Gillis' July 30, 2014, allegation that he was denied
representational rights.
3

Gillis' Appeal
On February 17, 2015, Gillis submitted an appeal to PERB's Headquarters Office via
PERB's e-file system. In addition to several attached PDF files, Gillis included a link to
Google Drive cloud storage which contained copies
of
the attached files, but the appeal
submitted bye-file omitted a proof
of
service on the City. Thereafter on February 17, 2015,
PERB' s Appeals Assistant notified Gillis by letter that the inclusion in his appeal
of
an HTML
link was improper. The Appeals Assistant's letter also directed Gillis' attention to PERB
Regulation 326355 and notified him that he must submit to PERB a signed copy
of
his appeal
and a proof
of
service
of
the appeal on the City. The Appeals Assistant's letter informed Gillis
he had until February 19, 2015, to cure these deficiencies.
On February 19, 2015, Gillis filed a signed original
of
his appeal including a proof
of
service with PERB's San Francisco Regional Office (SFRO). On February 23, 2015, PERB's
Appeals Assistant notified Gillis by letter that his February 19, 2015, filing did not comport
with PERB regulations, because it was incorrectly filed with a Regional Office instead
of
PERB Headquarters Office. In her February 23, 2015, letter the Appeals Assistant extended to
February 27, 2015, the filing deadline for Gillis to perfect his appeal.
On February 24, 2015, Gillis re-filed a signed copy
of
his appeal with PERB's SFRO.
On February 27, 2015, PERB's Appeals Assistant notified Gillis by letter that his February 24,
2015, filing did not comport with PERB regulations because it was incorrectly filed with a
Regional Office. In her February 27, 2015 letter, the Appeals Assistant extended to March 6,
2015, the deadline for Gillis to perfect his appeal.
5 PERB Regulation 32635(a) states that an appeal must be filed with PERB's
headquarters office. As stated in PERB Regulation 32060, PERB's headquarters is located in
Sacramento.
4

On March 11, 2015, Local
21
notified PERB that it was not the charging party in this
case and did not represent Gillis. On March 13, 2015, PERB's Appeals Assistant determined
that Gillis' appeal had not been filed in conformance with PERB regulations and dismissed
Gillis' attempted appeals on the ground that he had not timely filed a perfected appeal.
On March 23, 2015, Gillis appealed from the Appeals Assistant's March 13, 2015,
determination. In his appeal from the Appeals Assistant's March 13, 2015, determination
Gillis alleges that the Appeals Assistant contacted him via e-mail on March 10, 2015,
requesting clarification over the identity
of
the charging party in this case,6 and that the
Appeals Assistant did not indicate in that communication that Gillis needed to re-file his
appeal from dismissal
of
this unfair practice charge. Gillis further alleges that on March 12,
2015, he sent an e-mail to the Appeals Assistant notifying her that he wished to file his appeal
as an individual. According to Gillis, "[t]his correspondence [from the Appeals Assistant]
provides the -impression that the appeal successfully filed on February 19th 2015 would be
given consideration by the board." Gillis did not submit with his appeal from the Appeals
Assistant's determination, a copy
of
the Appeals Assistant's March 10, 2015 e-mail.
On April 3, 2015, the City responded to Gillis' appeal from the Appeals Assistant's
determination. The City notes that Gillis did not provide any justification for failing to perfect
his appeal by March 11, 2015, and urges that we affirm the Appeal Assistant's determination.
DISCUSSION
Under PERB Regulation 32136,7 a late filing may be accepted for good cause. (United
Teachers
of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325.) The Board has excused
6 Gillis had filed his unfair practice charge as an "employee organization."
7 PERB Regulation 32136 states:
5

late filings where a short, non-prejudicial delay resulted from circumstances beyond the control
of
the filing party and the filing party's explanation was either credible on its face or
corroborated by supporting evidence. (Ibid.) The Board has also found good cause in the case
of
"honest mistakes," (Barstow Unified School District (1996) PERB Order No. Ad-277) and
where an "untimely filing was a result
of
honest error
...
resulting from miscommunications"
by an unrepresented appellant. (Los Angeles Unified School District (2003) PERB Order
No. Ad-318.)
With respect to a filing in the improper PERB office, the Board has excused a late filing
sent to the wrong PERB office, but otherwise filed, served, and received in advance
of
the
filing deadline. (North Orange County Regional Occupational Program (1990) PERB
Decision No. 807 (North Orange County).) In North Orange County, the employer timely
filed exceptions to a proposed decision but with PERB' s Los Angeles Regional Office instead
of
PERB
's
Headquarters Office. The exceptions were filed by a secretary for the law firm
representing the employer who was accustomed to sending documents to the Los Angeles
Regional Office. The proof
of
service attached to the statement
of
exceptions indicated that
the document had also been served on the opposing party. The statement
of
exceptions was
forwarded to PERB' s Sacramento Headquarters, but did not arrive until after the deadline for
filing exceptions. The Board's Appeals Assistant was also notified by telephone that
exceptions had been filed in Los Angeles, but this telephonic notification did not occur until
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 determined that good cause exists only where, under all the surrounding
circumstances, 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.
6

the deadline for exceptions had passed. The employer asked the Board to accept its late filing
based on an inadvertent clerical error and no prejudice to the opposing party.
The North Orange County Board noted the general rule in California favoring the
preservation
of
appeal rights and the hearing
of
appeals on their merits. The Board also noted
that the California Supreme Court held that it was improper for an agency automatically and
mechanically to reject late-filed appeals without regard to the excusability
of
the late filing.
(See Gibson
v.
Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494.) In determining
that the employer'-s late filing should be excused, the Board reasoned that the employer
...
attempted to file in a timely fashion but, due to
an
inadvertent
error,the mechanics
of
the filing went awry. In the instant case,
there is no reason to believe the filing error was due to anything
other than an honest mistake. While it is the responsibility
of
the
parties to see that documents are filed in the proper office in
accordance with the Board's regulations, we are nonetheless
mindful that, in this case, the exceptions were received well
before the filing deadline, albeit in the wrong office.
(North Orange County, supra, PERB Decision No. 807, p. 5.)
In the case before us, Gillis was served with the Office
of
the General Counsel's
dismissal letter on January 29, 2015. Thus, the filing deadline for his appeal
of
that dismissal
was February 23, 2015.
Gillis first attempted to e-file8 his appeal on February 17, 2015.
8 PERB Regulation 32091 which concerns electronic filing states:
(a) "Electronic filing" or "filing by electronic mail'' means the
transmission
of
a document to PERB via an electronic mail
(e
...
mail) message.
(b) Electronic filing must be directed to the e-mail address
currently published by PERB for that purpose on its website.
(c) Any attachments to an electronic filing shall be in PDF
format and the total size of any e-mail message, including
7

Gillis' properly addressed his appeal to PERB e-file Appeals, which is the e-mail address
currently published
on
the
Board's
website for electronic filing
of
documents with the Appeals
Office. Gillis' e-filing stated that he wished to appeal the dismissal
of
his charge and
contained five PDF documents as attachments. Gillis also stated
in
the body
of
his appeal that
the documents he had attached as PDF files could also be found
on
the internet and provided
an HTML link to those documents on Google Drive.
The Appeals Assistant's determination which Gillis appeals from here, states that his e-
filing was
"not
in accordance with PERB Regulation 32091." (Appeal's Assistant
Determination, p. 1.) The determination does not state specifically how Gillis' e-filing was not
in
accordance with PERB regulations. Ho,wever, in correspondence dated February 17, 2015,
the Appeals Assistant notified Gillis that "The Board does not click
on
links to documents,
if
you
would like to include those documents in your appeal, please see regulation 32635."
(Appeal's Assistant Ltr. dated 02/17/2015, p. 1.) Thus it appears that the Appeals Assistant
rejected Gillis' e-filing in part because it contained an HTML link. Had Gillis supplied his
supporting documents only via the HTML link, his submission would not comply with PERB
regulations which require that supporting documents be attached and in PDF format. Gillis did
submit his attached documents in PDF format. Therefore, Gillis' appeal
of
February 17, 2015,
conformed with PERB Regulations 32091 and 32635, except for the fact it lacked a proof
of
service and original signature by appellant. The Appeals Assistant also informed Gillis on
February 17, 2015, that he had to submit an original
of
his appeal along with proof
of
service
upon the City.
attachments, shall not exceed 3 MB, unless the files are
compressed (in a zip file format).
8

On February 19, 2015, Gillis filed a sighed original
of
his appeal with PERB's SFRO,
with proof
of
service
via
personal delivery upon Reed, Oakland's fire chief.9 The Board's
Appeals Assistant rejected Gillis' February 19, 2015, filing on the basis that it was not in
conformance with PERB Regulation 32142(b) which states that documents must be served on
the Board itself and only at the PERB Headquarters Office. (Appeal's Assistant
Determination, p. 2.) As the Board determined in North Orange County, supra, PERB
Decision No. 807, filing a document which must be filed at PERB's headquarters at one
of
PERB's regional offices may be excused under the proper circumstances.10
On February 24, 2015, Gillis filed once again and the Appeals Assistant rejected this
submission because it was "not in accordance with PERB Regulation 32635." (Appeal's
Assistant Determination, p. 2.) The Appeals Assistant did not specifically state how Gillis'
February 24, 2015, filing fails to comply with PERB Regulation 32635. However,
correspondence from the Appeals Assistant regarding Gillis' February 24, 2015, filing
indicates that the appeal was again filed at SFRO.
We conclude that good cause exists to excuse Gillis' improper filing with PERB's
SFRO on February 19, 2015, because he had already e~filed a timely albeit incomplete appeal
at the proper location, viz., PERB's Headquarters Office, on February 17, 2015. His filing
of
the proof
of
service and signed original appeal on February 19, 2015, at the SFRO was still
timely, and the City suffered no prejudice because these documents were not filed at the
9 PERB Regulation 32142(c)(4) requires that service upon an employer under MMBA
be served upon "the individual designated for service or the chief executive officer." Gillis is
employed by the Oakland Fire Department and, as Fire Chief, Reed appears to be the chief
executive officer
of
the Department. The City did not object.
10 We do not announce today a rule that would open the door to improper filing of
documents only properly filed at PERB Headquarters Office. We stress that such an improper
filing will only be excused on those rare occasions where honest, good faith errors result in a
short delay that does not prejudice the opposing party.
9

PERB's Headquarters Office. Since we excuse Gillis' improper filing
of
his appeal at the
SFRO on February 19, 2015, we need not and do not reach the issue whether his February 24,
2015, filing complied with PERB regulations. We therefore conclude that on February 19,
2015, Gillis timely submitted a perfected appeal.
ORDER
The Appeals Assistant's administrative determination in Case No. SF-CE-1251-M is
hereby REVERSED and the matter is remanded to the Public Employment Relations Board's
Appeals Assistant for further processing.
Members Winslow and Banks joined in this Decision.
10