County of Santa Clara (PERB A412M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HERMAN GUERRERO,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1033-M
Administrative Appeal
PERB Order No. Ad-412-M
April 21, 2014
Appearance: Herman Guerrero, on his own behalf.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Herman Guerrero (Guerrero) of an administrative decision by
the PERB Appeals Assistant finding that Guerrero's appeal of the dismissal of his unfair
practice charge was untimely. PERB Regulation 321361 provides that the Board may excuse
a late filing for good cause. For the reasons set forth below, we do not find good cause to
accept Guerrero's late-filed appeal.
PROCEDURAL HISTORY
On February 8, 2013, Guerrero filed an unfair practice charge alleging that the County
of Santa Clara (County) violated the Meyers-Milias-Brown Act (MMBA)2 by retaliating
against him for engaging in protected activity. On April 17, 2013, Guerrero attempted to file
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2 The MMBA is codified at Government Code section 3500 et seq.

an amended charge, but the filing was not in accord with PERB Regulation 326153 because
there was no original, no signature under penalty of perjury and no completed proof of service
form showing that the County was served with a copy of the charge. A "Filing Deficiency
Letter" was sent to Guerrero on April 26, 2013, by the Office of the General Counsel. 	On
May 1 and May 6, 2013, Guerrero attempted to file amended charges.
On May 21, 2013, the Office of the General Counsel issued a warning letter, which
noted that neither the May 1 or May 6 deficient attempted filings would be considered because
they were not accompanied by a proof of service showing that the County was served with a
copy. After analyzing the allegations contained in the initial charge only, the Office of the
General Counsel found that the charge failed to state a prima facie case. Guerrero was invited
to amend his charge to correct any factual inaccuracies contained in the warning letter and/or
provide additional facts to correct the charge deficiencies outlined in the warning letter.
Guerrero filed a first amended charge on May 30, 2013. On December 26, 2013, the Office of
the General Counsel issued a dismissal letter finding that the charge, as amended, still did not
set forth a prima facie case. Guerrero was informed that he had 20 days within which to appeal
the dismissal.
On January 23, 2014, Guerrero filed his appeal. By administrative determination dated
January 24, 2014, Guerrero was informed that his appeal was untimely under PERB
Regulation 32635, subdivision (a), which requires that an appeal be filed within 20 days of the
date of service of the dismissal.4 As explained in the administrative determination, the 20 th day
3 PERB Regulation 32615 sets forth the requirements for filing an unfair practice
charge.
4 As also stated in the administrative determination, Guerrero's appeal was not in
accord with other appeal requirements under PERB Regulation 32635, subdivision (a).
Guerrero did not sign his appeal nor did Guerrero provide a proof of service showing that the
County was served with a copy of his appeal.
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for filing the appeal fell on January 15, 2014, but because the dismissal letter was served by
mail, the deadline was extended by five days under PERB Regulation 32130, subdivision (c).
Because the fifth day fell on January 20, 2014, Martin Luther King, Jr. Day, Guerrero's appeal
of the dismissal was due, under PERB Regulation 32130, subdivision (b ), by the close of
business on January 21, 2014. Guerrero filed his appeal on January 23, 2014, two days late.
On February 5, 2014, Guerrero filed a timely appeal of the administrative
determination. Guerrero's appeal states in pertinent part:
Guerrero is aware of the period of time needed to file his appeal.
Unfortunately Guerrero was struck with the flu and was
struggling to get the appeal in order, and even had his wife call
the appeals office inquiring about the time limit as Guerrero was
concerned if the Holiday would work for him or against him.
Moreover, Charging Party would like to request that the Board
please reverse its decision, and hopes that it will have
understanding as to the Charging Party is not an attorney, neither
experienced with the PERB' s process, ...
DISCUSSION
PERB Regulation 32635 governs review of dismissals. Subdivision (a) states in
pertinent part:
Within 20 days of the date of service of a dismissal, the charging
party may appeal the dismissal to the Board itself. The original
appeal and five copies shall be filed in writing with the Board
itself in the headquarters office, and shall be signed by the
charging party or its agent. 	Service and proof of service of the
appeal on the respondent pursuant to Section 32140 are required.
Guerrero's appeal of the dismissal was not signed, nor was it accompanied by a proof
of service form showing that the County was served with a copy of the appeal. And, relevant
to the immediate issue in this case, the appeal was not filed within 20 days of service of the
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dismissal. Even were the Board to find good cause to excuse the lateness issue, the other
deficiencies with the appeal are equally problematic.5
Good cause, however, does not exist under these facts. 	PERB Regulation 32136
provides:
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.
The Board has found good cause to exist where the explanation for the delay was
"reasonable and credible." (Barstow Unified School District (1996) PERB Order No. Ad-277
(Barstow).) The party's explanation must be credible on its face or corroborated by other facts.
(Ibid.) 	The Board has also found good cause to exist for "honest mistakes" such as certain
types of mailing or clerical errors. (Ibid.) 	Good cause exists only where a short delay results
from circumstances beyond the control of the filing party or from excusable misinformation,
and where the filing party has made "a conscientious effort to timely file." (United Teachers
of Los Angeles (Kestin) (2003) PERB Order No. Ad-325.) Only where the explanation
satisfies these conditions does the Board then evaluate whether permitting a late filing would
be prejudicial to the opposing party. 	(Barstow, supra, PERB Order No. Ad-277.)
When a late filing is caused by an alleged illness, the party must still demonstrate a
conscientious effort to timely file and explain how an illness precluded timely filing.
(AFT College Staff Guild, Local 1521 (Mrvichin) (2005) PERB Order No. Ad-349;
The service requirements are not merely ritualistic, but are basic to providing due
process to the involved parties. (Los Angeles Community College District (1984) PERB
Decision No. 395.) The lateness of Guerrero's appeal of the dismissal is the only issue in this
administrative appeal. The appeal itself is not before us. Therefore, we do not reach the merits
of the case. Neither do we reach the issue whether any of the other procedural deficiencies
with the appeal, i.e., lack of proof of service and lack of signature, would warrant denial of the
appeal on either or both of those bases alone.
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Newport-Mesa Unified School District (2008) PERB Order No. Ad-373.) In State of
California (Department of Social Services) (2001) PERB Order No. Ad-308-S, the filing party
claimed to be "seriously ill ... and thus unable to appeal timely." A doctor visit verification
form indicated that the party was unable to work for a specified period of time. Although the
party submitted proof of his illness, the Board found he did not explain how the illness
prevented him from making a conscientious effort to timely file. 	(See also State of California
(State Teachers Retirement System) (1999) PERB Order No. Ad-296-S [party's attorney did
not explain how his illness affected his ability to timely file]; State of California (2001) PERB
Order No. Ad-309-S [party did not explain how depression and anxiety prevented a timely
filing]; North Monterey County Unified School District (1996) PERB Order No. Ad-274 [party
did not explain how family i'llness prevented a timely filing].)
Here, Guerrero stated he had the flu and that his wife called the appeals office to
inquire about the deadline for filing the appeal.6 Guerrero admits that he was "aware of the
period of time needed to file his appeal" and yet fails to explain how his flu or his wife's
inquiry prevented him from timely filing his appeal or timely requesting an extension of time
under PERB Regulation 32132, as described in the dismissal letter. Therefore, good cause
does not exist to excuse Guerrero's late-filed appeal of the dismissal of his unfair practice
charge.
Guerrero also appeals to the Board's sympathy, claiming that he is not an attorney and
is inexperienced with PERB' s process. Generally, these types of issues do not affect the
Board's consideration of good cause. (See, e.g., Public Employees Union Local 1 (Coleman)
(2005) PERB Decision No. 1780-M.)
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ORDER
The Public Employment Relations Board's (Board) denial of Herman Guerrero's
(Guerrero) appeal of the dismissal of his unfair practice charge in Case No. SF-CE-1033-M as
untimely is AFFIRMED. Guerrero's request that the Board excuse his late-filed appeal for
good cause is hereby DENIED.
Members Winslow and Banks joined in this Decision.
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