City of Beverly Hills (Transportation Department) (PERB A363M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAMSON TESFASION,
Charging Party,
v.
CITY OF BEVERLY HILLS
(TRANSPORTATION DEPARTMENT),
Respondent.
Case No. LA-CE-282-M
Administrative Appeal
PERB Order No. Ad-363-M
May 	2 4 , 	2007
Appearances: 	Samson Tesfasion, on his own behalf; Richards, Watson & Gershon by Roy A.
Clarke, Attorney, for City of Beverly Hills (Transportation Department).
Before Shek, McKeag and Neuwald, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Samson Tesfasion (Tesfasion) of the rejection by the PERB Appeals
Assistant of Tesfasion's appeal of dismissal of his unfair practice charge as untimely filed.
BACKGROUND
The charging party filed his appeal on December 14, 2006. The PERB Appeals
Assistant notified him on December 18, 2006, that his appeal was untimely, for the reason
stated below:
The dismissal of the unfair practice charge was served on the
parties by mail on October 5, 2006. On October 30, you were
granted an extension of time to file an appeal to December 4,
2006. Pursuant to PERB Regulation 32130(c) December 11 was
the actual due date for the appeal of the dismissal to be filed in
the headquarters office here in Sacramento. Your appeal was
mailed to the Board via regular U.S. mail and received and filed
on December 14, three days late, therefore it is being denied as
untimely filed.

- - . . . . ..
In his appeal to the Board postmarked January 11, 2007, Tesfasion alleges that he
mailed his appeal of the dismissal of the unfair practice charge in Case No. LA-CE-282-M on
November 3, 2006. 	He submitted a proof of service to show that he had served a copy of the
appeal on Sandra Olivencia, Human Resources Services of the City of Beverly Hills (City), the
representative for the City in the matter of the appeal of dismissal of the unfair practice charge.
The mail was not delivered to PERB or the City, but was held up for additional postage until
December 9, 2006. The envelope that was used to mail his November 3, 2006, appeal shows
that it was correctly addressed to the PERB Headquarters office in Sacramento, California, and
originally postmarked November 3, 2006. "Postage Due" was stamped on the face of the
envelope. 	Adhering to the surface of the envelope was a sticker bearing the following
message, "This address and/or name is NOT listed as acceptable for charging to BRM/Postage
Due account. PLEASE DELIVER C.O.D. $1.20."
Tesfasion states that due to insufficient postage, the United States Postal Service (U. S.
Postal Service) held his appeal for one month and six days before returning it to him on
Saturday, December 9, 2006. He paid the balance of the postage and re-mailed the appeal in
its original envelope to PERB on the next business day, December 11, 2006. The envelope
that contained the appeal shows a postmark of December 11, 2006. PERB received and filed-
stamped the appeal on December 14, 2006. As evidence, Tesfasion presents a copy of an
inquiry he submitted to the U. S. Postal Service on December 11, 2006, regarding the delayed
return or delivery of this item. 	Tesfasion stated in this inquiry that he had mailed an item to
PERB on November 3, 2006, which was subsequently "held for postage due" before being
returned to the sender on December 9, 2006.
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Tesfasion submitted a proof of service showing that he had mailed a copy of his appeal
of the PERB Appeals Assistant's rejection to the Board and to the City. No response to
Tesfasion's appeal was filed by the City.
DISCUSSION
Pursuant to PERB Regulation section 32136, the Board may excuse a late filing for
good cause only.1 The Board has excused late filings that were caused by inadvertent mailing
errors, but which resulted in a brief delay. 	If the reason for the untimely filing is "reasonable
and credible," the Board evaluates whether the opposing party suffers any prejudice as a result
of the excused late filing. 	(Barstow Unified School District (1996) PERB Order No. Ad-277.)
In Trustees of the California State University (1989) PERB Order No. Ad-192-H, the
Board found good cause for excusing the late filing of exceptions caused by the unforeseen
inadvertence and excusable error by mailroom employees in setting the mailroom meter.
Additionally, the Board has found good cause for excusing the late filing of exceptions caused
by the inadvertent secretarial error in sending the exceptions by regular mail, rather than the
customary certified mail, on the last day for filing. 	(The Regents of the University of
California (Davis, Los Angeles, Santa Barbara and San Diego) (1989) PERB Order No.
Ad-202-H.) In North Orange County Regional Occupational Program (1990) PERB Decision
No. 807, the Board found good cause to excuse the late filing of exceptions which were filed
before the deadline, but were mistakenly sent by certified mail to PERB's Los Angeles
T PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq. PERB Regulation 32136 states:
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.
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Regional office rather than the Sacramento Headquarters office. 	In all three cases, the Board
found that the brief delay did not cause any prejudice to the opposing parties.
The Board has also found good cause for excusing late filings when the delay was
caused in part by an inadvertent error of the U. S. Postal Service. In California School
Employees Association (Simeral) (1992) PERB Order No. Ad-233, the charging party was	----------
prevented from timely filing a request for reconsideration that was mailed well before the
deadline, but was inadvertently misaddressed. Consequently, the U. S. Postal Service held it
before returning it, thus causing delay to the charging party in correctly addressing and re-
mailing it. 	In State of California (Department of Corrections) (1994) PERB Order
No. Ad-259-S, an inadvertent error by the U. S. Postal Service contributed to the late filing,
despite the fact that the State made a good faith effort to timely file. In both cases, the
opposing parties did not oppose the finding of good cause to extend the filing time.
In the present case, Tesfasion demonstrated a good faith effort in filing his appeal of the
dismissal of his unfair practice charge in a timely fashion. He first obtained a 40-day
extension until December 4, 2006, from the PERB Appeals Assistant when he was
unexpectedly removed from his apartment due to circumstances beyond his control. He mailed
the appeal on November 3, 2006, well before the deadline. Due to insufficient postage, his
appeal was held by the U. S. Postal Service until Saturday, December 9, 2006, before being
returned. On December 11, 2006, the next business day, he paid the postage that was due and
re-mailed the appeal. His appeal was filed on December 14, 2006, only three days past the due
date. 	Since his justification for the delay is "reasonable and credible," we evaluate whether
any prejudice was caused to the opposing party, and have found no evidence of such.
Accordingly, the Board finds that good cause exists to excuse the late filing and accepts
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Tesfasion's appeal to the dismissal of the unfair practice charge in Case No. LA-CE-282-M as
timely filed.
ORDER
Samson Tesfasion's (Tesfasion) appeal of the dismissal of the unfair practice charge in
Case No. LA-CE-282-M is hereby ACCEPTED as timely filed. The City of Beverly Hills is
hereby afforded twenty (20) days from the date of service of this Decision to file a response to
Tesfasion's appeal.
Members McKeag and Neuwald joined in the Decision.
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