American Federation of State, County and Municipal Employees, Council 57 (Gregory) (PERB 1952E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHARIKA GREGORY,
Charging Party,
V.
AFSCME COUNCIL 57,
Respondent.
Case No. SF-CO-713-E
PERB Decision No. 	1952
April
11,
2008
Appearance: 	Sharika Gregory, on her own behalf
Before Neuwald, Chair; Wesley and Rystrom, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Sharika Gregory (Gregory)
of
a Board agent's dismissal
of
her
unfair practice charge. 	The charge alleged that the AFSCME Council
57
(AFSCME) breached
its duty
of
fair representation in violation
of
the Educational Employment Relations Act
(EERA). 1
BACKGROUND
Gregory was employed by the Oakland Unified School District (District) as a
paraprofessional until February 20072 and was a member
of
the bargaining unit represented by
AFSCME. 	The parties dispute the reasons therefore, but agree that Gregory did not report to
work at some point before the end of 2006. 	On or about January 16, the District sent Gregory
a letter charging that she abandoned her position. 	Her benefits and employment were
1EERA is codified at Government Code section 3540, et seq.
2All date references refer to the year 2007 unless otherwise noted.

terminated as
of
February
1,
2007. 	Gregory consulted with various AFSCME representatives
in an attempt to have the District's termination reversed.
AFSCME's contract with the District provides for twenty days to file a grievance. No
grievance was filed on Gregory's behalf relative to her termination. 	Gregory charged that
AFSCME failed to provide adequate representation in violation
of
EERA.
BOARD AGENT'S DISMISSAL
The Board agent issued a warning letter on November 30, advising Gregory that her
charge failed to state a prima facie case
of
a violation
of
the duty
of
fair representation. 	The
letter states both that Gregory requested union assistance after the time lapsed for AFSCME to
help her in appealing her dismissal for job abandonment and after the deadline for filing a
grievance. The Board agent found that Gregory failed to cite facts to demonstrate that
AFSCME's conduct was arbitrary, discriminatory or in bad faith.
Gregory was given until December
14
to file an amended charge. When one was not
received, the charge was dismissed on December 17.
GREGORY'S APPEAL
On appeal Gregory seeks leave to file an amended charge. Gregory includes evidence
that she did not receive the Board agent's warning letter until December 19. The mailing
address provided on her charge is a post office box. 	According to her declaration signed under
penalty
of
perjury, there was a dispute with the post office which resulted in the closure
of
the
post office box. Initially, mail addressed to the post office box was held. Eventually, mail was
forwarded to Gregory's home address. Gregory provided a copy
of
the envelope from PERB
showing that the post office forwarded the PERB envelope on December 15.
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DISCUSSION
The Board agent dismissed Gregory's charge, finding that it did not state a prima facie
case because it failed to demonstrate that the union's conduct was arbitrary, discriminatory or
in bad faith. 	(Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) Gregory requests that the
dismissal be reversed and that she be afforded the opportunity to file an amended charge, based
on her receiving the warning letter after her charge was already dismissed.
PERB Regulation 321363 states that
"a
late filing may be excused in the discretion
of
the Board for good cause only." The Board has typically found good cause where the
explanation given is reasonable and credible. (Los Angeles Unified School District (2007)
PERB Order No. Ad-368.)
The Board has found good cause to excuse late filings resulting from inadvertent postal
errors. In City
of
Sacramento (2003) PERB Decision No. 1541-M, the charging party mailed
his amended charge in Sacramento on January 4, 2003. The amended charge was not received
by the PERB Sacramento office until January 13, 2003, a week after the filing deadline.
Although the charging party attempted to trace the mailing when it was not timely received,
the post office could not explain the delay in delivery. In California School Employees
Association (Simeral) (1992) PERB Order No. Ad-233, good cause was found when the postal
service held an incorrectly addressed filing before returning it to the charging party,
prohibiting him from correcting the address and timely filing. 	In State
of
California
(Department of Corrections) (1994) PERB Order No. Ad-259-S, a postal service representative
admitted an error in applying the wrong postmark date.
3PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
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These cases indicate that the Board has found good cause in rare cases where
inadvertent postal errors, beyond the charging party's control, prevented timely filing with the
Board. In this case Gregory provided reasonable and credible evidence that she received the
warning letter after the Board agent dismissed her charge - in the form
of
a dated postal
service forwarding sticker and a sworn declaration asserting that the postal delay was out
of
her control. Therefore, the Board finds good cause exists to allow Gregory to file an amended
charge.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SF-C0-713-E and
REMANDS the case to the Office
of
the General Counsel for further processing consistent
with this decision.
Chair Neuwald and Member Rystrom joined in this Decision.
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