Regents of the University of California (PERB A396H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. LA-CE-1120-H
Administrative Appeal
PERB Order No. Ad-396-H
November 27, 2012
Appearances: Jeffrey Estes, on his own behalf; Carl
D.
Smith, Labor and Employee Relations
Consultant, for Regents
of
the University
of
California.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Regents
of
the University
of
California (University)
from the administrative determination by the PERB Appeals Assistant finding that the
University failed to file a timely response to exceptions filed by Jeffrey Estes (Estes) to a
proposed decision
of
an administrative law judge. For the reasons set forth below, we find
good cause to accept the University's filing.
Regulation 323101 provides that any party may file a response to the statement
of
exceptions to the proposed decision of a Board agent within 20 days following the date of
service
of
the exceptions. 	Regulation 32130( c) provides a five-day 	to file a
to
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

Estes served his statement
of
exceptions by mail on August 27, 2012. Pursuant to the
above regulations, the University had until September 21, 2012, to file a response to the
exceptions. On September 24, 2012, PERB received the University's response to the statement
of
exceptions. That response was dated September 21, 2012. By letter dated September 25,
2012, the PERB Appeals Assistant notified the parties that the University's response had been
received but was denied as untimely filed.
On October
1,
2012, the University filed an appeal from the determination
of
the
Appeals Assistant and requested that PERB file its response dated September 21, 2012. 	The
letter stated that the University had prepared the response for facsimile filing on September 21,
2012, but that, due to an error, the facsimile filing was placed in the United States mail with
proof
of
service on September 21, 2012, in accordance with PERB Regulations 32310 and
32135(c).
PERB Regulation 32136 provides that the Board may excuse a late filing for good
cause. The Board has found good cause when the explanation for the late filing was
"reasonable and credible" and the delay did not cause prejudice to any party. (Barstow Unified
School District (1996) PERB Order No. Ad-277.) The Board has historicaiiy excused iate
filings caused by "honest mistakes" such as mailing or clerical errors. (See, e.g., Kern
Community College District (2008) PERB Order No. Ad-372 [clerical employee served appeal
on respondent but did not file appeal with PERB]; Trustees
of
the California State University
(1989) PERB Order No. Ad-192-H [mailroom employees incorrectly set postage meter causing
exceptions to be filed late]; San Francisco Unified School District (2009) PERB Decision
No. 2048 (SFUSD) [late filing excused as a result of clerical error in counsel's office].) Based
on the facts stated in the University representative's letter and the representative's
conscientious effort to comply with PERB' s requirements for filing a document by facsimile,
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we find the University has provided a "reasonable and credible" explanation for its late filing.
(SFUSD.) Further, there is no indication that the late filing prejudiced Estes in any way,
particularly since the University's response was served on the due date and PERB regulations
do not provide for a party to file a reply to another party's response to a statement
of
exceptions. Accordingly, we find the University has demonstrated good cause under PERB
Regulation 32310 for the Board to accept its late-filed response to the statement
of
exceptions.2
ORDER
The administrative appeal
of
the Regents
of
the University
of
California from denial
of
filing its response to the statement
of
exceptions in Case No. LA-CE-1120-H is hereby
GRANTED. 	The response to statement
of
exceptions dated September 21, 2012, is deemed
timely filed.
Chair Martinez and Member Huguenin joined in this Decision.
In reaching this determination, we note that the University has not requested leave to
file any additional pleadings. Accordingly, we determine only that the response dated and
served on September 21, 2012, and received by the Board on September 24, 2012, shall be
deemed timely filed. No further filings will be accepted.
3