PERB Concluded City Did Not Establish Good Cause For Its Untimely Answer

CATEGORY: Client Update for Public Agencies
CLIENT TYPE: Public Employers
DATE: Apr 07, 2021

Alfonso Garcia filed an unfair practice charge against the City and County of San Francisco alleging the City interfered with his protected rights and retaliated against him for his union activities by placing him on paid administrative leave and reassigning him to a new worksite.

On December 6, 2019, the Public Employment Relations Board’s (PERB’s) Office of the General Counsel (OGC) issued a formal complaint to the City.  PERB regulations required the City to file an answer within 20 calendar days from the date the complaint was served.  That same day, the OGC also issued two complaints to the City in companion cases and dismissed eight other charges Garcia and another employee had filed against it. While the City filed answers to the complaints in the companion cases, it did not file an answer to Garcia’s charge.

On April 30, 2020, the City filed a motion to dismiss all three related cases, contending the complaint allegations had already been resolved through binding arbitration under the collective bargaining agreement between the City and the union. On May 8, 2020, the City filed an answer to Garcia’s complaint.  Garcia filed an opposition to the motion to dismiss, arguing the City’s answer and motion were untimely.

Subsequently, the Administrative Law Judge (ALJ) asked the City’s counsel to provide good cause as to why the City’s late answer should be excused.  In response, the City’s counsel submitted a declaration indicating she filed a late answer because she had not realized the City did not respond to the charge.  She also noted that: the complaint was nearly identical to the complaints in the companion cases; the charging parties initially filed 12 PERB charges within a short period of time, and one of her colleagues had handled filing the answers because she was preparing for consecutive jury trials.  Accordingly, the City argued that the failure to timely file an answer was an oversight and there was no prejudice to Garcia.

Nevertheless, the ALJ issued a proposed decision concluding the City failed to establish good cause to excuse the late filing.  Thus, the ALJ deemed the allegations in the complaint and underlying unfair practice charge to be true and issued a proposed remedial order.  The City timely filed exceptions to the proposed decision.

In resolving the exceptions, PERB first affirmed the ALJ’s conclusion that the City failed to establish a good cause. In general, good cause to excuse a late filing exists if the delay is short and based on circumstances that were either unanticipated or beyond the party’s control.  Further, regardless of the particular reason, the party must provide a “reasonable and credible” explanation or show it at least made a conscientious effort to comply with the filing deadline.  PERB reasoned the City’s counsel could have filed the answer on time “had she exercised reasonable diligence in reviewing the case documents received from PERB” and that a heavy caseload provides no excuse for failing to do so.  Thus, PERB determined the City could not establish a good cause.

Next, PERB concluded that the ALJ did not improperly add any allegation to the complaint that the City reassigned Garcia to a new facility because he exercised Meyers-Milias-Brown Act (MMBA) rights.  PERB noted that while the complaint did not expressly allege the City reassigned Garcia because of his protected activity, it nonetheless contended the City took adverse employment action against him by reassigning him to a different facility. Further, in its motion to dismiss, the City acknowledged that Garcia alleged the City retaliated against him for his protected activities by placing him on administrative leave and reassigning him.  For these reasons, PERB concluded the City understood the complaint to encompass the retaliatory reassignment allegation and the ALJ did not err in addressing it.

Finally, PERB concluded that the ALJ’s remedial order was proper. In the ALJ’s proposed order, the ALJ ordered that the City make Garcia whole for any losses he incurred as a result of the misconduct; reinstate Garcia to his prior position or to a substantially similar position; post copies of the Notice to all work locations where notices are customarily posted; and cease and desist from imposing reprisals, discriminating against, or interfering with the exercise of protected MMBA rights.

While the City argued this proposed order was overbroad, PERB disagreed.  PERB reasoned that the notice requirement is educational for the represented employees and that the purpose of a cease and desist order is to prohibit future unlawful conduct.  Further, PERB reasoned that Garcia should have the opportunity to establish any financial losses in compliance proceedings and that the City’s authority to reassign its employees to particular worksites did not prevent PERB from ordering the City to offer Garcia reinstatement to his former, or a substantially similar, position.

City and County of San Francisco, PERB Dec. No. 2757-M (2021).


This decision shows that PERB strictly enforces filing deadlines and the good cause requirements for excusing the failure to meet filing deadlines. 

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