Trustees of the California State University (San Diego) (PERB A355H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN DIEGO),
Respondent.
Case No. LA-CE-822-H
Administrative Appeal
PERB Order No. 	Ad-355-H
A u g u s t 	9, 	2006
Appearances: 	Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for California
Faculty Association; Steven Raskovich, University Counsel, for Trustees of the California
State University (San Diego).
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Trustees of the California State University (San Diego)
(CSU) of the Appeals Assistant's denial of its untimely filed opposition to the statement of
exceptions to an administrative law judge's proposed decision. 	The appeal alleges that PERB
erroneously refused to accept CSU's brief as untimely.
BACKGROUND
In May of 2004, the California Faculty Association (CFA) filed an unfair practice
charge alleging CSU unilaterally and unlawfully increased the contracting out of work. 	After
two days of formal hearing, a proposed decision was served on the parties on April 4, 2006,
making May 1, 2006, the deadline for filing a statement of exceptions to the decision.1
1PERB Regulation 32300 provides that a statement of exceptions to a proposed decision
may be filed within 20 days following the date of service of the decision. In addition, PERB

By joint stipulation, the parties agreed to extend CFA's filing date for the exceptions to
May 15, 2006. CFA filed its exceptions on May 11, 2006, making the deadline to file an
opposition June 5, 2006.2 CSU's opposition, however, was filed on June 9, 2006.
Accordingly, CSU's opposition was not timely filed.
The sole issue in this appeal is whether good cause exists to excuse the late filing of
CSU's opposition. We have reviewed the entire file, including CSU's appeal, the documents
attached thereto, and CFA's response. 	We find that CSU presented adequate evidence to
support a finding of good cause to excuse the late filing and, therefore, accept the opposition as
timely filed.
FACTS
On April 19, 2006, prior to the expiration of time to file exceptions, Steven Raskovich
(Raskovich), attorney for CSU, received a telephone call from Bernhard Rohrbacher
(Rohrbacher), attorney for CFA. 	Rohrbacher indicated that his firm was recently retained to
file a statement of exceptions on behalf of CFA and requested a continuance to file his
exceptions. Raskovich agreed. 	The parties stipulated that CFA's statement of exceptions
would be due on May 15, 2006.
The parties also discussed CSU's intent to file an opposition. However, the parties
dispute what, if anything, was agreed upon regarding when the opposition was to be filed.
Regulation 32130(c) grants a five (5) day extension for responses to documents served by mail.
Since the proposed decision was served by mail, CFA's statement of exceptions should have
been filed no later than May 1, 2006. (PERB regs, are codified at Cal. Code Regs., tit. 8,
section 31001, et seq.)
2PERB Regulation 32310 provides that a response to a statement of exceptions to a
proposed decision may be filed within 20 days following the date of service of the statement of
exceptions. In addition, PERB Regulation 32130(c) grants a five (5) day extension for
responses to documents served by mail. 	Since the statement of exceptions was served by mail,
CSU's opposition should have been filed no later than June 5, 2006.
22

According to CSU, the parties agreed that the opposition would be due on June 9, 2006. CFA,
on the other hand, acknowledges that the parties did, in fact, discuss the timing to file CSU's
opposition, and agreed that, based on a filing date of May 15, 2006, the opposition would be
due on June 9, 2006. However, Rohrbacher has no recollection that the parties agreed to a firm
June 9 deadline. Rather, since CFA filed its exceptions on May 11, 2006, the filing deadline
for the opposition, based on PERB regulations, changed to June 5, 2006, to reflect the earlier
filing date.
DISCUSSION
Pursuant to PERB Regulation 32136, the Board may, in its discretion, excuse late
filings upon a showing of good cause. 	Good cause is a flexible standard that is defined and
constrained by the considerations of fairness and reasonableness. 	(United Teachers of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325 (Kestin).) The Board has found good
cause to exist when the explanation 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. (Barstow.) Additionally, the
Board has ruled that good cause exists only when the party made a conscientious effort to
timely file and the delay did not cause prejudice to any party. 	(Kestin.)
Although CFA's explanation does not precisely corroborate CSU's, it is clear that the
parties discussed filing the opposition on June 9. Under these facts, we believe it was
reasonable for Raskovich to conclude his filing deadline was June 9. Thus, we find Raskovich
made a conscientious effort to file his opposition on what he honestly believed was the
mutually agreed upon due date.
It is noteworthy that CFA has not claimed prejudice due to the late filing, and we see no
indication of prejudice. 	Indeed, CFA asserted that it would have granted a request for a
W	
3

continuance had one been requested by CSU. 	Although the filing was four days late, CFA was
aware that CSU intended to file an opposition. Moreover, since the opposition, if accepted,
would have been the last substantive brief filed by the parties, we fail to see any prejudice to
CFA. Because CSU's excuse was reasonable and credible and because the delay did not cause
prejudice to CFA, we conclude good cause exists to excuse the late filing.
ORDER
The request by the Trustees of the California State University (San Diego) to accept its
late-filed opposition to the statement of exceptions to the proposed decision in Case
No. LA-CE-822-H is hereby GRANTED.
Chairman Duncan and Member Neuwald joined in this Decision.
4