MISCELLANEOUS ISSUES; REGULATIONS – In General
Single Topic for Decision A432H
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1503.01000 – In General
The Board denied a higher education employer’s appeal from an administrative determination rejecting the employer’s late-filed opposition to an appeal from dismissal of an unfair practice charge, finding the employer had not provided sufficient factual detail to establish either a reasonable and credible explanation for its untimely filing or that it made a conscientious effort to comply with the deadline by requesting an extension of time, as required by PERB Regulation 32136 and decisional law. The employer admitted that its designated representative was in possession of the opposing party’s appeal almost two weeks before the deadline, the employer’s representative neither requested an extension of time nor sought clarification of the deadline but instead attempted to extend its own deadline for filing its papers because of delay in receiving opposing party’s appeal due to defective service. Although the Board may grant extensions of time or excuse late filings for good cause, parties cannot take the filing deadlines into their own hands. The Board denied a higher education employer’s request to refuse to consider an opposing party’s appeal for defective service where there was no evidence that the employer had been prejudiced by the failure to properly serve the appeal. Unlike PERB’s regulations and decisional law governing whether to excuse a late filing, no showing of “good cause” is required to excuse defective service; rather, the service requirement may be excused if opposing parties have actual notice of the issues and would not be unfairly surprised or unduly prejudiced. Because the employer was in receipt of opposing party’s appeal almost two weeks before the deadline for filing an opposition to the appeal, it had actual notice of the issues and was not prejudiced by the fact that the appeal was not served in complete conformity with the requirements of PERB Regulation 32140, subdivision (a).