Mark Twain Union Elementary School District (PERB A319E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANGELS CAMP EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party,
v.
MARK TWAIN UNION ELEMENTARY
SCHOOL DISTRICT,
Respondent.
Case Nos. SA-CE-2014-E
SA-CE-2017-E
Administrative Appeal
PERB Order No. Ad-319
February 11, 2003
Appearances: Kronick, Moskovitz, Tiedemann & Girard by Robert A. Rundstrom, Attorney,
for Mark Twain Union Elementary School District.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Mark Twain Union Elementary School District (District) from a
rejection by the appeals office of the District’s response to exceptions to the administrative law
judge’s (ALJ) proposed decision as untimely.
After reviewing the record, the Board reverses the administrative determination that the
response was untimely. The Board excuses the late filing and accepts the response to
exceptions as timely filed.
BACKGROUND
An ALJ issued a proposed decision in the underlying case. The Angels Camp
Educators Association, CTA/NEA (Association) prevailed before the ALJ, but was unhappy
with the remedy and filed an exception to only that portion of the decision. The District did

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not file any exceptions to the decision, but did file a response to the Association’s exception.
The Association’s exception was served on the District on May 6, 20021 and the response was
due May 31. The Board’s appeals office considered the response filed on June 1, one day late.
The response was received and signed by PERB staff, via certified mail, on June 3.
DISTRICT’S APPEAL
The District requests its late filed response be excused pursuant to Board regulation.
The District’s attorney has filed a declaration indicating he completed the response May 31,
before noon, and asked his secretary to file an original and five copies with PERB by certified
mail and to serve a copy on the Association.
The secretary has filed a declaration indicating that at approximately 11:30 a.m. on
May 31, she provided the original and five copies of the response to the staff of a company
which provides the law firm’s mail service. She instructed a mail service company staff
person to send the original and five copies to PERB via certified mail. She declares that the
mail service company has provided mail services to the firm for the full five years she has been
employed with the firm and to the best of her knowledge, the staff has always followed her
instructions.
The account supervisor employed by the mail service company in charge of providing
mail services to the law firm, as well as his staff, are housed in the law firm’s offices. The
account supervisor has filed a declaration which describes the typical process for mailing
certified mail documents. The documents are delivered to the mail service company staff in a
1 All references are to 2002.
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properly addressed envelope. A machine weighs the document, determines the appropriate
postage and postmarks the envelope. The document is routinely postmarked on the date it is
mailed.
Attached to the account supervisor’s declaration is a copy of the U.S. Postal Service
“Certified Mail Receipt.” According to the declaration, long-hand notes on receipts are
routinely made. The notes on the particular receipt at issue in this case demonstrate that it was
mailed on May 31, by certified mail. The routine practice would be to mark the envelope the
same date, May 31.
The account supervisor was asked by the District to review the copy of the envelope in
question. He says that it is dated June 1, but he cannot explain how that postmark was put on
the envelope. He notes that it is physically possible for the postage/postmark machine to be
manually moved forward to the next day’s date if someone inadvertently hits the button on the
machine that controls the postmark date. To his knowledge, that has not previously occurred
as long as the mail service company has served the law firm. He concludes his declaration by
stating that the mail service company’s records show the document in question was mailed on
May 31, noting that no one from the mail service company worked at the law firm on Saturday,
June 1.
The District argues there is no prejudice as the document was received by PERB the
next business day and the proof of service demonstrates that the response was mailed to the
Association on May 31.2 The District asserts the document must have been mailed on May 31,
since no one from the mail service company worked on June 1. The District argues that this is
2 The Association did not file a response to the instant appeal.
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an inadvertent error, the reasons it has provided are plausible and there was no prejudice to the
parties. The District requests we reverse the appeals office’s administrative decision.
DISCUSSION
PERB Regulation 321363 provides that:
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.
In Trustees of the California State University (1989) PERB Order No. Ad-192-H
(Trustees), the Board excused a late filing where the document was sent by certified mail on
the last day for filing, but due to an error in the mailroom, the postage meter was incorrectly
set for the following day.
In this instant appeal, the District, through declarations of all individuals in the chain of
custody of the response document, has attempted to paint the picture of what happened. While
the District cannot explain exactly how this incorrect postmark came to be on an envelope it
claims was mailed on May 31, the explanation that it must have been an inadvertent error
seems plausible and is accepted by the Board. This case, therefore, falls squarely within
Trustees. As such, the late filing is excused pursuant to PERB Regulation 32136 and the
District’s response to the Association’s exception is accepted as timely filed.
3 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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ORDER
Mark Twain Union Elementary School District’s request that the Board accept its
response to the Angels Camp Educators Association, CTA/NEA’s statement of exceptions in
Case Nos. SA-CE-2014-E and SA-CE-2017-E is hereby GRANTED. The response is
ACCEPTED as timely filed.
Members Whitehead and Neima joined in this Decision.
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