AFSCME Council 75, Local 2503 v. Hood River Cnty.

CourtOregon Employee Relations Board
PartiesAFSCME COUNCIL 75, LOCAL 2503, Complainant, v. HOOD RIVER COUNTY (PUBLIC WORKS), Respondent.
Docket NumberCase No. UP-005-20
Decision Date11 February 2021

AFSCME COUNCIL 75, LOCAL 2503, Complainant,
v.
HOOD RIVER COUNTY (PUBLIC WORKS), Respondent.

Case No. UP-005-20

EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON

February 11, 2021


(UNFAIR LABOR PRACTICE)

RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Jason M. Weyand, Attorney at Law, Tedesco Law Group, Portland, Oregon, represented the Complainant.

Bruce Bischof, Attorney at Law, Law Offices of Bruce Bischof, Bend, Oregon, represented the Respondent at hearing.

Nancy Hungerford, Attorney at Law, The Hungerford Law Firm, Oregon City, Oregon, represented the Respondent in the filing of objections and the motion regarding the objections.

____________________

On March 2, 2020, AFSCME Council 75, Local 2503 (Complainant), filed an unfair labor practice complaint against Hood River County (County or Respondent). On January 13, 2021, Administrative Law Judge Martin Kehoe issued a recommended order in this matter. The parties had 14 days from the date of service to file objections, meaning that objections were required to be received by the Board by 5 p.m., January 27, 2021. OAR 115-010-0090(1). No objections were received by that deadline.

On February 1, 2021, Respondent filed a motion for an extension of time to file objections, citing workload and issues with this agency's electronic case management system (CMS) as the causes of the late filing. On that same day, Complainant objected to the motion. We deny the motion because Respondent has not demonstrated good cause to extend the time for filing objections. OAR 115-010-0090(1).

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As background, we note that our rules permit parties to file documents with the Board by four means: mail, email, fax, and in-person delivery. OAR 115-010-0033(1)(a). Additionally, the agency permits efiling through CMS, a web-based electronic system developed after OAR 115-010-0033 was most recently promulgated. The record establishes that, before the January 27, 2021, 5 p.m. deadline, Respondent attempted to file the objections using only CMS, but was unable to do so because Respondent's current counsel was not the counsel of record for this case, had not previously been involved in this case, and consequently, was not listed as an "active participant" for this case in CMS.1 For the reasons explained below, however, Respondent's failure to file by mail, email, or facsimile, as permitted by OAR 115-010-0033(1)(a) before 5:00 p.m., and failure to seek an extension before the filing deadline, does not constitute good cause to extend the filing deadline.

At 5:59 p.m. on January 27, 2021, Board Chair Rhynard received an email from Respondent's current counsel, with a copy to Complainant's counsel, stating "I have been trying to file electronically for several hours but I am sending this to you by email and will try electronic filing later this evening." The email included an attached Microsoft Word document captioned "Respondent's Objections to Proposed Order." At 6:14 p.m. Board Chair Rhynard received another email from Respondent's counsel stating "I have been trying to file the objections to ERB for several hours, but my computer repair guy was here today and nothing is working for me. So I'm sending these by email and will connect with you tomorrow if I can't figure this out tonight. Thanks." That email also included an attached Microsoft Word document with the same caption as the prior email. At 6:55 p.m., Board Chair Rhynard received another email from Respondent's counsel with no text in the body of the email, but an attached PDF copy of the objections.2 At 7:05 p.m., the Board Chair received a fourth email from Respondent's counsel (with a copy to Complainant's counsel) stating

"I think I may finally have gotten my Objections into the electronic system, but I can't be sure and I didn't include a form. So I used the form for the ULP Complaint, but that didn't seem to fit. There isn't any item listed that is for 'objections'. Anyway, I think I've sent them to you 3 or 4 times. I'll call in first thing in the morning and see if the electronic filing worked. Sorry about this, but the system just isn't working for me today - first the problem with my computer settings all being changed by the computer repairman, which took much time to figure out, then problems with the ERB website."

Respondent's counsel did not successfully upload the objections in the CMS electronic file for this case, but rather created a new case in CMS and uploaded the objections to that new case.

The following morning, January 28, Respondent's counsel contacted Board staff by telephone to confirm issues with the filing of Respondent's objections. In that conversation, Board staff relayed to Respondent's counsel that counsel was unable to upload the objections to this case using CMS because she was not listed in CMS as a party representative or other active participant in this case. In that same conversation, Respondent's counsel asked Board staff whether a motion or request to the Board should be filed with respect to Respondent's filing.

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On January 28, the Board emailed a letter to counsel for both parties stating that

"objections to the Recommended Order were due no later than January 27, 2021. OAR 115-010-0090(1). Documents submitted after 5:00 p.m. are deemed filed with the Board the next business day. OAR 115-010-0033(1)(d). The Board did not receive timely objections to the Recommended Order by 5:00 p.m. yesterday. If Respondent wishes to seek leave to file objections, it may file a motion in accordance with OAR 115-010-0045, and include in the motion a description of good faith efforts to confer with the non-moving party to seek resolution of the matter, as required by OAR 115-010-0045(2)."

On February 1, 2021, Respondent filed a motion for leave to file objections.3 The motion asked for leave to file objections beyond the objection period on the ground that Respondent made a good-faith effort to timely file the objections and "immediately emailed the Board Chair and opposing counsel within an hour after the deadline" once counsel "became aware that [she] may not have" successfully filed the objections on time. With respect to the efforts to timely file the objections, Respondent's counsel set forth the following: (1) counsel needed to confer with her client multiple times; (2) counsel needed to confer with opposing counsel over the possibility of settlement; (3) counsel had an all-day mediation on January 25; (4) counsel needed to prepare for and participate in an oral argument in federal district court on January 26 and 27; and (5) counsel "had computer updating that morning and attributed difficulties [that she] was having to changes made in that process." The motion further stated that counsel "believed that [she] had uploaded the file prior to 5 p.m." and emailed a copy of those objections when she "was unable to confirm that the document actually loaded."

On February 1, 2021, Complainant objected to the motion, stating that "the Board has multiple avenues for filing documents electronically (fax and email in addition to the case management system)." Complainant further noted that, based on the motion, it was "unclear whether there actually was a problem with the Board's filing system going down, or if the problem was on the filing party's end." Complainant argued that "[a]llowing documents to be filed late absent something more definitive could potentially invite future parties to cure late filings after the fact by raising the mere possibility of technical difficulties," which "would certainly undermine the Board's established deadlines * * *."

Under OAR 115-010-0090(1), "[u]pon good cause shown, the Board may extend the time for filing objections."4 We evaluate whether good cause exists based on the "circumstances of the individual case." Multnomah County Correction Deputies Association v. Multnomah County, Case No. UP-58-05 at 5 (2008). We have found good cause for a late filing where a party "made every reasonable effort to comply with the filing deadline," but filed a document five minutes after the 5 p.m. deadline due to "circumstances beyond [the party's] control." See Laborers Local 483 v. City of Portland, Case No. UP-15-05 at 9 (2007) (finding good cause for the late filing of answer filing fee where respondent faxed answer to ERB and complainant before deadline and hired

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messenger to hand deliver answer with filing fee to ERB, but messenger arrived late). Inadvertence, or a lack of awareness of a deadline, however, does not constitute good cause. Multnomah County, UP-58-05 at 5-6. We also do not take into account whether the opposing party was prejudiced by the late filing. Id. at 6.

Here, the good cause asserted rests largely on three issues—(1) Respondent's counsel's busy workload; (2) Respondent's counsel's own computer problems; and (3) Respondent's counsel's difficulties e-filing the objections with the agency's CMS. Although we acknowledge that Respondent's counsel set forth a significant workload in the days up to and including the filing deadline (January 27, 2021), counsel did not request an extension based on those obligations before the filing deadline. We do not find good cause for the untimely filing of the objections based on other professional obligations when there was no attempt to file a pre-deadline request to extend the time to file the objections.

We turn to the technological reasons set forth in the request. Respondent has not established that counsel's computer problems on January 27 precluded filing the objections by email by 5:00 p.m. on January 27, or that Respondent was otherwise precluded from filing by facsimile.

Further, the filings submitted to the Board indicate that Respondent's counsel had tried for "several hours" to upload the objections in the agency's CMS. At the time, Respondent's counsel attributed at least some of the difficulties to her computer being updated in the morning. After counsel uploaded the document into...

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