In a recent proposed decision by Public Employee Relations Board (PERB), an Administrative Law Judge (ALJ) evaluated what constitutes good cause for a late filing with PERB. The ALJ reviewed whether failing to submit a timely answer automatically admits all the material allegations and waives the right to assert any affirmative defenses. (California City Police Officers’ Association v. City of California City, (2021) PERB Decision No. LA-CE-1501-M.) In the case, the California City Police Officers’ Association (CCPOA) brought an unfair practice charge against California City for failing to meet and confer over a unilateral change to the disciplinary investigation process. PERB issued a complaint and notified the City of the deadline to file a response. Despite PERB’s notice of the deadline the City filed its answer to the complaint fifteen days late.
The ALJ found that City failed to establish good cause for the late filing. This meant the City was admitting to the matters alleged in the complaint and the charge. PERB Regulation 32136 gives the Board the discretion to excuse a late filing for good cause only. Further, PERB Regulation 32644 provides that the Board may find the failure to file a timely answer an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing. A failure to file a timely answer also waves affirmative defenses. (Regents of the University of California (2018) PERB Decision No. 2601-H.)
In general, good cause is a “flexible standard, defined and constrained by considerations of fairness and reasonableness.” The Board will evaluate whether the circumstances were unanticipated or caused by an event outside of a person’s control. The City attempted to argue good cause by relying on a PERB case that found good cause due to the COVID pandemic. Ultimately, the ALJ found that “considerable time had passed since the initial stay-at-home orders and law offices had time to adjust their practices to the new reality.” Without a good cause justification, the City’s answer was untimely and the City effectively admitted to the factual allegations and legal allegations in the complaint and the charge. Therefore, City was found to have violated the Meyers-Milias-Brown Act.
This case highlights the importance of timeliness when filing at PERB. It also provides insight into how PERB and perhaps other legal entities view the COVID-19 pandemic. Although the unprecedented times previously caused justified delays, sufficient time has passed for society to adjust and it is no longer a good cause for untimeliness.