Fullerton Elementary School District (PERB A339E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOSE PEREZ,
Charging Party,
v.
FULLERTON ELEMENTARY SCHOOL
D I S T R I C T 	J u l y 	2 8 ,
Respondent.
Case No. LA-CE-4377-E
Administrative Appeal
PERB Order No. 	Ad-339
2004
Appearances: M. Candice Bryner, Attorney, for Jose Perez; Law Offices of Margaret A.
Chidester & Associates by Sharon J. Ormond, Attorney, for Fullerton Elementary School
District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: 	This case is before the Public Employment Relations Board
(PERB or Board) on a motion for acceptance of late filing of Fullerton Elementary School
District's (District) response to Jose Perez's (Perez) statement of exceptions to the
administrative law judge's (ALJ) proposed decision.
The Board finds good cause exists to allow the late filing of the District's response to
Perez's exceptions, based on the discussion below.
DISCUSSION
Perez filed a statement of exceptions to the ALJ's proposed decision and served it on
May 10, 2004. The District's response was due on June 4, 2004. On June 4, 2004, the District
mailed its response by certified mail to Perez and PERB. Had the response been sent by

facsimile to PERB it would have been timely filed.1 It was received in the PERB office on
Monday, June 7, 2004, the next business day.
The Board has found good cause existed where the reason for the delay was
"reasonable and credible" (Barstow Unified School District (1996) PERB Order No. Ad-277)
and "when the party made a conscientious effort to timely file and the delay caused no
prejudice to any party in the case" (United Teachers of Los Angeles (Kestin) (2003) PERB
Order No. Ad-325).
In Coachella Valley Unified School District (1998) PERB Order No. Ad-292, the Board
determined there was not good cause when based on an "unspecified reference to a postal or
clerical delay."
Here, the delay was caused by a specific incident, immediately recognized and
corrected. Under the new PERB Regulation 321352 it is no longer sufficient to mail a response
by certified mail postmarked on the last day for filing. 	Now, a copy must be received in the
Appeals Office on the due date. 	It may be filed by facsimile transmittal. 	If, as is the office
policy of the attorney for the District, the secretary had faxed the document, the issue would
not have arisen. The affidavit of the secretary indicates it was an honest clerical error. We
believe it is significant that there was no prejudice to the other party. 	The Board does not
condone late filing and will only consider a request to accept a late filing in circumstances
consistent with the case law indicating an honest error, coupled with an expedient and
thorough explanation.
IPERB	PERB Regulation 32135. (PERB regs. are codified at California Code of Regs., tit. 8,
sec. 31001, et seq.)
Effective December 13, 2003.
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ORDER
The Fullerton Elementary School District's request that the Board accept its late filed
response to exceptions in Case No. LA-CE-4377-E is hereby GRANTED.
Members Whitehead and Neima joined in this Decision.
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