Banning Unified School District (PERB 1549E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 147,
Charging Party,
V.
BANNING UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4452-E
PERB Decision No.
1549
October 	9,
	2003
Appearance: 	California School Employees Association by Timothy Taggart, Labor Relations
Representative, for California School Employees Association & its Chapter 147.
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 California School Employees Association & its Chapter 147
(CSEA)
of
a Board agent's dismissal
of
its unfair practice charge. The charge was dismissed
after PERB failed to receive an amended charge by the deadline set by the Board agent.
After reviewing the record in this matter, including the warning and dismissal letters
and the CSEA's appeal, the Board reverses the Board agent's dismissal for the reasons set
forth below.
BACKGROUND
The relevant facts are as follows: 	CSEA filed its original charge on September 23,
2002. The Board agent sent a warning letter to CSEA on June 17, 2003. The warning letter

identified several deficiencies with the original charge and instructed CSEA to file an amended
charge by July 24, 2003.
On June 26, 2003, the Board agent called CSEA Representative, Tim Taggart (Taggart)
and left a voice-mail message informing Taggart that the July 24, 2003, due date for an
amended charge was given in error. The correct date should have been June 24, 2003.
Because of the error, the Board agent informed Taggart that CSEA had until June 30, 2003, to
file an amended charge.
Since the Board agent did not receive an amended charge by June 30, 2003, the Board
agent dismissed the charge on that date.
CSEA'S APPEAL
On appeal, Taggart has provided the Board with a declaration, given under penalty of
perjury, dated July 3, 2003, attesting to the following facts: 	(1) Taggert received the warning
letter on June 19, 2003. He took note of the July 24, 2003, date to file an amended charge; (2)
Taggert left for a one-week vacation on June 20, 2003; (3) Taggert returned to work on
Monday, June 30, 2003, but immediately had to leave to conduct two license suspension
hearings. He returned to his office after 5:00 p.m. that day and listened to the Board agent's
message of June 26, 2003, for the first time; (4) Taggert immediately called PERB and left a
voice-mail message for the Board agent describing the situation. Taggert informed the Board
agent that he was scheduled to be in a hearing all day the next day - July 1, 2003 - but that
Taggert would make every effort to file an amended charge by July 3, 2003, and (5) Taggert
received an email message from the Board agent on July 2, 2003, informing Taggert that the
dismissal had been issued on June 30, 2003, and that the Board agent no longer had
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jurisdiction to act in the matter. Attached to Taggart' s declaration is a copy
of
CSEA' s
amended charge in this matter. Taggert then mailed this appeal on July 3, 2003, along
with
an
amended unfair practice charge with the same date. The appeal was received
by
PERB
on
July
7,
2003.
DISCUSSION
PERB Regulation section 32136 provides that the Board may excuse a late filing for good
cause. 1 The Board has previously excused late filings for good cause in a variety
of
situations.
(See City
of
Sacramento (2003) PERB Decision No. 1541-M (summarizing cases finding good
cause to excuse a late filing); United Teachers
of
Los Angeles (Kestin) (2003) PERB Order
No. Ad-325 (id.).) Given the facts in this case, the Board has little difficulty finding good cause
to excuse CSEA's late-filed amended charge. Taggart departed for vacation having reasonably
relied upon the due date provided him in the warning letter. Once Taggart discovered that the
due date had changed, the dismissal had already been issued. Under these circumstances the
Board finds good cause to accept CSEA's late-filed amended charge. Accordingly, this case
should be remanded to the office
of
the general counsel for further processing with instructions
to accept CSEA's amended charge as timely filed.
1 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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ORDER
The Board REVERSES the Board agent's dismissal in Case No. LA-CE-4452-E and
REMANDS the case to the Office
of
the General Counsel for further processing.
Members Whitehead and Neimajoined in this Decision.
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