Wheatland School District (PERB A149E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION
	AND
	ITS
	WHEATLAND
CHAPTER NO.
	626,
Charging
	Party,
v.
WHEATLAND
	SCHOOL
	DISTRICT,
Respondent.
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___________________
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Case
	No.
	S-CE-847
PERB
	Order
	No.
	Ad-149
November 	26, 	1985
Appearances:	
Madalyn
	J.
	Frazzini,
	Attorney 	for
	California
School
	Employees
	Association
	and
	its
	Wheatland
	Chapter
	No.
	626;
Kronick, 	Moskovitz,
	Tiedemann	
&	
Girard
	by
	Diana
	D.
	Halpenny
	for
the
	wneatland
	School
	District.
Before
	Hesse,
	Chairperson; 	Jaeger
	and
	Burt,
	Members.
DECISION
HESSE,
	Chairperson:
	This
	case
	is
	an
	appeal 	of
	an
administrative 	decision
	by
	the 	executive
	director
	of 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	of
	an
	appeal
	of
	a
regional 	attorney's
	dismissal 	of
	a
	charge.
	The
	executive
director 	rejected
	the
	filing
	on
	the
	grounds
	that
	the 	appeal
	was
not 	timely
	filed.
	Charging
	party
	claims
	that
	"extraor•dinary
circumstances" 	prevented 	the 	timely
	filing,
	and
	asks
	that 	the
Board 	excuse 	the
	late 	filing
	due
	to 	the 	nature 	of 	the 	events
that 	led 	to 	the
	late 	filing.
	For
	the 	reasons
	set 	forth
	below,
we
	decline 	to 	reverse 	the
	rejection
	by
	the 	executive
	director.
BACKGROUND
CSEA
	timely 	filed
	an
	unfair 	practice 	charge 	against 	the

Wheatland 	School
	District 	(District).
	The
	Board's 	agent -issued
a
	partial
	complaint
	and
	dismissed
	the
	remainder
	of 	the 	charge.
CSEA
	wished
	to
	appeal
	the
	dismissal.
	It
	is
	undisputed
	that
	a
timely
	appeal
	would
	have
	had
	to
	have 	been
	received
	in
	the
Headquarters
	office
	of
	PERB
	by
	March
	28,
	1985
	or
	sent
	by
certified
	mail
	and
	postmarked
	no
	later
	than
	March
	28,
	1985.
1
On
	March
	28, 	1985,
2 CSEA
Mail
	Clerk
	Annie
	Binder
	prepared
the
	envelope
	(containing 	the 	appeal) 	for
	certified
	mail
	and
affixed
	a
	postage
	meter
	stamp
	with
	a
	postmark
	of
	March
	28.
	At
about
	4:15
	p.m. 	she
	placed 	the
	envelope
	in
	a
	mail 	sack
	for
pickup
	by
	the
	Diamond
	Mail
	Delivery 	Service,
	and
	then
	she
	left
for 	the
	day.
The 	Diamond
	Mail
	Delivery
	Service,
	a
	bonded
	mail
	courier
company,
	picks
	up
	CSEA's
	mail
	three
	times
	a
	day
	and
	delivers
	it
to 	the
	San
	Jose 	post
	office.
	The
	last
	daily
	pickup 	occurs
around 	4:30
	p.m.,
	after
	the
	CSEA
	mail
	clerks
	have
	gone
	for 	the
day.
	On
	March
	28,
	the
	mail
	courier 	service 	truck
	broke
	down
and
	the 	owner/driver 	of
	Diamond,
	Gus
	Triandes,
	was
	not
	able 	to
make
	the
	late
	afternoon
	pickup 	of
	CSEA's
	mail
	that
	had 	been
prepared 	for 	mailing
	by
	Binder.
lThere
	were
	actually
	two
	pieces 	of
	certified
	mail:
the 	appeal
	to
	PERB
	and
	a
	copy
	of 	the 	appeal 	to
	Mari
Merchat, 	counsel 	for 	the
	District.	
As	
both
	documents
received 	identical 	treatment 	they 	are 	referred 	to
	as 	"the
appeal" 	for 	purposes 	of
	clarity.
	PERB
	Regulation
	32135
permits 	filing
	by
	certified
	mail.
2unless 	otherwise 	stated, 	all
	dates 	are 	1985.
•
2

On 	the 	morning 	of 	March 	29, 	Binder 	came 	to 	work 	and 	noted
that 	the 	mail 	from 	the 	previous 	day had 	not 	been 	picked 	up. 	At
the 	instruction 	of 	her 	supervisor, 	and 	to 	comply 	with 	postal
regulations, 	Binder 	placed 	a 	second 	metered 	postmark 	on 	the
appeal 	to 	PERB, 	this 	one 	dated 	March 	29. 	The 	courier 	service
picked 	up 	the 	mail 	at 	8:30 	a.m. 	on 	March 	29.
After 	pickup 	by 	Triandes, 	the 	appeal 	was 	inadvertently
mislaid 	in 	his 	truck. 	Triandes 	discovered 	the 	appeal 	on
Monday, 	April 	1, 	and 	thereupon 	delivered 	the 	appeal 	to 	the
San 	Jose 	post 	office. 	The 	appeal 	bears 	a 	postal 	service
postmark 	of 	April 	1, 	and 	a 	PERB 	stamp 	on 	the 	document 	indicates
receipt 	on 	April 	4. 	On 	April 	17 	the 	appeal 	was 	rejected 	as
untimely.
DISCUSSION
Charging 	party bases 	its 	request 	that 	the 	late 	filing 	be
excused 	on 	that 	portion 	of 	PERB 	Regulation 	32136 	which 	reads,
"A 	late 	filing 	may 	be 	excused 	in 	the 	discretion 	of 	the 	Board
only 	under 	extraordinary 	circumstances. 3	11 CSEA argues 	that
the 	circumstances 	in 	this 	case 	were 	entirely 	unexpected. 	The
courier 	had 	always 	been 	reliable 	in 	th~ 	past, 	and 	there 	was 	no
way 	to 	predict 	that 	the 	truck 	might 	break 	down 	or 	that 	Triandes
would 	misplace 	the 	package.
1ne 	District's 	response 	to 	CSEA's 	arguments 	is 	twofold:
(1) 	the 	circumstances 	that 	led 	to 	the 	late 	filing 	were 	all
3pERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
3

under 	the 	control 	of 	CSEA, 	and 	thus 	under 	Regents 	of 	the
University 	of 	California 	(1983) 	PERE 	Decision 	No. 	365-H, 	the
circumstances 	are 	not 	extraordinary, 	and 	(2) 	even 	if 	the 	Board
were 	to 	excuse 	the 	late 	filing 	due 	to 	extraordinary
circumstances, 	the 	proof 	of 	service 	attached 	to 	the 	original
mailing 	was 	defective 	and 	thus 	the 	entire 	mailing 	is 	invalid. 4
As 	noted 	by 	the 	parties, 	this 	Board 	has 	consistently
applied 	a 	standard 	of 	showing 	"extraordinary 	circumstances" 	to
excuse 	a 	late 	filing, 	while 	other 	agencies 	use 	a 	lesser
standard 	of 	showing 	"good 	cause." 	We 	find, 	however, 	that 	the
events 	of 	this 	case 	do 	not 	meet 	our 	standard.
We 	can 	sympathize 	with 	CSEA 	that 	it 	had 	no 	knowledge 	that
the 	courier 	service's 	truck 	would 	break 	down 	on 	March 	28.
Certainly, 	if 	that 	were 	the 	sole 	reason 	for 	the 	document 	being
late-filed, 	CSEA could 	reasonably 	argue 	and 	we 	could 	find 	that
the 	circumstance 	was 	"out 	of 	the 	ordinary. 115
4The 	District 	refers 	to 	the 	proof 	of 	service 	by 	which
CSEA 	employee 	Evelyn 	Gallagher, 	under 	oath, 	swore 	that 	she
deposited 	the 	package 	in 	the 	U.S. 	mail 	on 	March 	28. 	CSEA's
appeal 	in 	this 	case 	shows 	conclusively, 	however, 	that 	Gus
Triandes 	deposited 	the 	package 	in 	the 	mail, 	and 	he 	did 	so 	on
April 	1. 	Although 	we 	note 	the 	irregularity 	of 	the 	proof 	of
service, 	we 	need 	not 	address 	the 	issue 	because 	we 	dispose 	of
the 	appeal 	on 	grounds 	of 	timeliness.
Swe 	note, 	however, 	that 	the 	truck 	breakdown 	would 	not
have 	resulted 	in 	a 	late 	filing 	if 	any 	CSEA 	employee 	was
assigned 	to 	ascertain 	the 	mail 	had 	been 	picked 	up. 	As 	it 	was,
CSEA's 	work 	schedule 	guaranteed 	that 	an 	unforeseen 	interruption
of 	the 	courier 	service 	would 	mean 	automatically 	that 	documents
would 	not 	be 	mailed 	until 	the 	next 	time 	a 	CSEA mailroom
employee 	noticed 	the 	packet, 	i.e., 	the 	next 	day. 	It 	could 	be
argued 	that, 	as 	a 	prerequisite 	to 	pleading 11 extraordinary
4

Having
	been
	prevented
	by
	"extraordinary
	circumstances"
	from
filing
	on
	March
	28,
	however,
	CSEA
did
	not 	thereupon
	receive
	an
unlimited
	amount
	of
	time
	to
	file.
	CSEA
	became
	obligated
	to
take 	steps
	promptly
	to
	file
	the 	tardy
	appeal
	as
	soon 	as
possible
	after
	discovery 	of
	its
	error.
On
	March
	29,
	at
	the
	very 	beginning 	of 	the
	workday,
	CSEA
learned
	that
	the 	courier
	had
	not 	picked
	up
	the
	mail
	from
	the
day
	before.
	Yet,
	CSEA
	took
	no
	special 	steps 	to 	insure
	that
	the
documents
	were
	mailed
	on
	March
	29.
	It
	would
	have 	been
	a
	simple
enough
	matter
	to
	have
	a
	mailroom 	employee
	take 	the 	appeal
	to
the
	post
	office~
	But
	instead,
	CSEA
	relied
	upon
	its
	agent,
	who
failed
	to 	deliver
	the 	appeal
	to
	the 	post
	office
	in
	a
	timely
manner.
	CSEA
	must
	now
	assume
	the
	consequence
	of
	its
	agent's
forgetting
	to
	mail
	the 	appeal
	and
	instead 	leaving
	it
	in 	the
truck
	over
	the
	weekend.
	An
	excuse
	by
	a 	CSEA
	employee
	that
	he
"merely
	forgot" 	to
	mail 	the 	appeal
	would
	not
	constitute
extraordinary 	circumstances.
	We
	find 	the
	same
	situation
	no
less
	excusable 	because 	an
	agent
	was
	involved.
	CSEA's
	recourse
is
	against
	the
	bonded
	courier;
	it
	is
	not
	to
	make
	the
	District
defend
	a
	late-filed
	appeal
	due
	to 	the
	error
	of
	CSEA's
	agent.
Thus, 	as 	the 	appeal
	was
	ready 	for 	mailing
	on
	the 	29th,
	and
CSEA was
	aware
	early 	in 	the
	day
	that
	it
	had 	missed 	the
	filing
on
	the 	28th,
	we
	do
	not 	think
	it
	unreasonable
	that
	CSEA was
circumstances,"
	CSEA
	be
	required 	to
	have 	done
	everything
reasonable 	to 	see 	that 	the 	courier 	service
	made
	the
	late
pick-up.
5

under an obligation to mail the appeal on the 29th. It did not
do so, and the circumstances surrounding that failure on the
29th are not extraorindary.
ORDER
The request to file the appeal in S-CE-847 is DENIED, and
the regional attorney's partial dismissal is thereby AFFIRMED.
Members Jaeger and Burt joined in this Decision.
6