Fontana Unified School District (PERB A157E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
FONTANA
	CLASSIFIED
	EMPLOYEES
ASSOCIATION/NEA,
Employee
	Organization,
APPELLANT,
and
UNITED 	STEEL
	WORKERS
	OF
	AMERICA,
	AFL/CIO,
Employee
	Organization,
and
FONTANA	
UNIFIED
	SCHOOL
	DISTRICT,
Employer.
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_______________________ )
Case
	No.
	LA-D-176
Administrative
	Appeal
PERB
	Order
	No.
	Ad-157
July
	31, 	1986
Appearance:	
Edward
	B.
	Hogenson,
	Executive
	Director,
	for
	Fontana
Classified
	Employees
	Association/NEA.
Before
	Hesse,
	Chairperson; 	Burt, 	Porter
	and
	Craib,
	Members.
DECISION
CRAIB,
	Member:
	This 	matter
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board} 	on
	appeal
	from 	an
	administrative
decision	
by	
the 	executive
	director 	rejecting
	as 	untimely 	an 	appeal
of
	a
	Board
	agent's 	dismissal
	of
	a
	decertification 	petition 	filed
by	
the
	Fontana
	Classified
	Employees 	Association/NEA
	(Association).
The 	Board
	agent's 	decision
	was
	served
	November
	18, 	1985.
Pursuant 	to
	PERB
	Regulation 	32360(b),
1 a
	timely 	appeal
	was
lPERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8,
	section
	31001
	et 	seq.
Regulation 	32360(b)
	states:

required 	to 	be 	filed 	in 	the 	Board's 	headquarters 	office 	on 	or
before 	December 	2, 	1985. 2 The 	Association's 	appeal 	was 	served
by 	regular 	United 	States 	mail 	on 	November 	27, 	1985, 	and 	was
received 	at 	the 	Board's 	headquarters 	office 	on 	December 	4,
1985. 3 By 	letter 	dated 	December 	12, 	1985, 	the 	executive
director 	informed 	the 	Association 	that 	its 	appeal 	was 	rejected 	as
untimely. 	The 	Association 	then 	filed 	the 	instant 	appeal 	asking
that 	its 	late 	filing 	be 	excused 	due 	to 	extraordinary 	circumstances
An 	original 	and 	5 	copies 	of 	the 	appeal 	shall
be 	filed 	with 	the 	Board 	itself 	in 	the
headquarters 	office 	within 	10 	days 	following
the 	date 	of 	service 	of 	the 	decision 	or 	letter
of 	determination.
2November 	28 	and 	29, 	1985 	were 	State 	holidays. 	November 	30
and 	December 	1 	fell 	on 	a 	weekend. 	PERB 	Regulation 	32130(b)
states:
Except 	for 	filings 	required 	during 	a 	"window
period" 	as 	defined 	in 	sections 	33020, 	40130
or 	51026, 	whenever 	the 	last 	date 	to 	file 	a
document 	falls 	on 	Saturday, 	Sunday, 	or 	a
holiday, 	as 	defined 	in Government 	Code
sections 	6700 	and 	6701, 	or 	PERB 	offices 	are
closed, 	the 	time 	period 	for 	filing 	shall 	be
extended 	to 	and 	include 	the 	next 	regular 	PERB
business 	day.
3PERB 	Regulation 	32135 	provides 	that:
All 	documents 	shall 	be 	considered 	"filed'' 	when
actually 	received 	by 	the 	appropriate 	PERB
office 	before 	the 	close 	of 	business 	on 	the
last 	date 	set 	for 	filing 	or 	when 	sent 	by
telegraph 	or 	certified 	or 	Express 	United
States 	mail 	postmarked 	not 	later 	than 	the 	last
day 	set 	for 	filing 	and 	addressed 	to 	the 	proper
PERB 	office.
2

.
pursuant 	to
	PERB
	Regu 1
at1on
	32136.
4
Specifically,
	the 	Association
	claims
	it
	is	
11
both
	mysterious
and
	extraordinary
11	
that
	its
	appeal
	was
	received
	a
	full
	week
	after
mailing. 	Further,
	the
	Association
	asserts 	that
	it
	made 	a
	good
faith
	attempt 	to
	comply
	with 	the 	deadline 	for
	filing,
	and
	that,
in
	any
	event, 	the
	December
	4
	filing
	caused
	no
	undue
	delay.
DISCUSSION
First,
	we
	note
	that
	the
	Board
	has
	recently
	held
	that
California
	Code
	of
	Civil
	Procedure
	section
	1013
	applies
	to
decisions
	and
	orders
	of
	PERB.
	Lake
	Elsinore
	School
	District
(1986)
	PERB
	Order
	No.
	Ad~l54.
	Section
	1013
	states,
	in 	relevant
part:
(a) 	In
	case 	of
	service	
by 	mail, 	the
service
	is
	complete
	at
	the
	time 	of
	the
deposit,
	but
	any
	prescribed 	period
	of
	notice
and 	any
	right
	or 	duty 	to
	do
	any
	act
	or
	make
any
	response
	within
	any
	prescribed 	period
	or
on
	a
	date
	certain 	after
	the
	service
	of 	such
document
	served
	by
	mail
	shall
	be
	extended
five
	days
	if
	the 	place
	of
	address
	is
	withinthe
	State
	of
	California,
.
Former
	PERB
	Regulation 	32140(b),
	which
	stated 	that
	the
	portion
	of
section
	1013
	relating
	to 	extending 	the
	time 	to 	respond
	after
service
	by
	mail
	shall
	not 	apply,
	has 	been
	repealed.
5
4PERB
	Regulation
	32136
	provides
	that:
A
late 	filing
	may 	be
	excused 	in 	the
discretion
	of 	the
	Board 	only 	under
extraordinary 	circumstances.
	A
late 	filing
which 	has 	been 	excused 	becomes 	a
	timely
filing
	under 	these 	regulations.
5on May 	27, 	1986. 	the 	Office 	of 	Administrative
	Law
	approved
PERB 1 s 	emergency
	filing 	for 	repeal 	of 	Regulation 	32140(b).
3

Nevertheless,
	even
	with
	an
	additional 	five
	days
	pursuant 	to
section
	1013,
	the
	Association's
	appeal
	was
	untimely.
	Allowing
fifteen
	days
	from
	the
	service
	of
	the
	Board
	agent's
	decision
	on
November
	18, 	1985,
	the 	appeal
	would
	have 	been
	due
	on
December
	3.
6
6our
	dissenting
	colleague
	argues
	that
	the
	five-day 	extension
provided
	by
	section
	1013
	should
	be
	added
	to
	the
	December
	2
deadline 	calculated
	by
	the
	Board
	agent
	in
	accordance 	with
Regulation
	32130(b). 	This 	approach
	would
	make
	the
	last
	day
	for
filing
	December
	7.
	We
	reject 	this
	approach
	for 	the 	following
reasons.
The
	principle 	relied
	upon
	in
	the
	dissent, 	that
	the
	courts
have
	applied 	section
	1013
	and
	section
	12(b) 	of
	the
	Code
	of
	Civil
Procedure
	(which
	is
	analogous
	to 	Regulation
	32130(b))
	in
	whichever
order 	provides 	the
	longest
	time
	for
	filing, 	is
	not
	stated 	in
	any
of
	the
	cases
	cited
	nor
	in
	any
	other
	authority.
	In
	fact,
	only 	in
Shoutens 	v.
	Superior
	Court
	(1950)
	97
	Cal.App.2d
	855
	is
	the
application
	of
	section
	12(b)
	prior
	to 	the
	application
	of
	section
1013
	even 	mentioned.
	Contrary 	to 	the
	representation
	made
	in
	the
dissent,
	it
	is
	not
	at
	all
	clear 	that
	the 	court 	in
	Shoutens
applied 	section
	12(b)
	before
	section
	1013.
	The
	petitioner
	in
that
	case
	urged 	such 	an
	application,
	and
	though
	the 	court 	ruled
in 	the
	petitioner's
	favor.
	it
	did
	so 	based
	on
	the 	general 	policy
and
	of
	liberality
	with 	regard 	to 	deciding 	appeals
	on
	their
	merits
did 	not 	expressly
	adopt 	the
	petitioner's
	theory.
Additionally, 	the
	plain
	language 	of
	section
	1013 	and
Regulation
	32130(b)
	supports
	our 	approach,
	i.e.,
	that 	section
	1013
must 	be
	applied
	first
	and
	Regulation
	32130(b)
	last.
	Section
	1013
extends
	by
	five
	days
	the
	right
	to 	respond
	"within
	any
	prescribed
period
	or
	on
	a
	date 	certain" 	after
	service
	by
	mail.
	By
	its
	terms,
section
	1013
	is
	immediately
	triggered
	by
	the
	service
	of
	a
	document
by
	mail
	and
	operates
	upon
	the 	response 	time 	provided
	by
	statute,
regulation
	or
	court 	rule 	for 	the 	type 	of
	filing
	involved. 	In
contrast,
	Regulation
	32130(b)
	operates
	upon
	the
	"last
	date 	to
file,
11
	in 	order 	to 	avoid
	requiring
	a
	filing
	on
	a
	day
	PERB
	offices
closed.
	The
	purpose 	of
	this
	Regulation 	is
	not 	served
	if 	it
	are
operates
	upon
	a
	date 	prior 	to 	the
	last
	date 	for
	filing.
	Thus,
	if
other 	provisions 	of 	law, 	such 	as
	section
	1013, 	extend 	the 	time 	for
filing,
	they
	must
	logically 	operate 	prior 	to 	the 	application
	of
Regulation 	32130(b).
Lastly, 	the 	approach 	urged
	by
	our
	dissenting 	colleague 	raises
4

The
	Association's
	appeal
	was
	not
	received 	in
	the
	headquarters
office 	until
	the 	following
	day.
	Therefore, 	the
	appeal
	may
	be
considered
	on
	the
	merits
	only
	if
	its
	late 	filing
	should
	be
excused 	under
	the
	extraordinary
	circumstances
	standard
	provided
by
	Regulation
	32136.
In
	Anaheim
	Union 	High
	School
	District
	(1978)
	PERE
	Order
	No.
Ad-42,
	the
	Board
	held
	that
	mail
	delays
	generally
	do
	not
	constitute
extraordinary
	circumstances:
"Extraordinary 	circumstances"
	means
	exactly
that
	-
	out
	of
	the
	ordinary,
	remarkable,
unpredictable
	situations
	or 	occurrences
	far
exceeding 	the 	usual
	which
	prevent
	a
	timely
filing.
	Mail
	delays
	are 	ordinary,
	commonly
accepted 	occurrences
	and,
	therefore, 	will
generally
	not
	serve 	to
	excuse
	a
	late 	filing.
Any
	delay 	in
	the
	instant
	case
	was
	neither
	remarkable 	nor
unpredictable.
	Of
	the
	seven
	days 	between
	mailing
	and
	receipt,
	on
two
	days
	there
	was
	no
	mail
	service
	(one
	holiday,
	one
	Sunday).
Since 	the 	appeal
	was
	mailed
	the
	day
	before 	Thanksgiving,
	receipt
in 	the 	headquarters
	office
	in
	Sacramento
	after
	the 	following
Tuesday
	(December 	3) 	was
	particularly
	unremarkable.	
By	
waiting 	to
the
	possibility 	that
	Regulation
	32130(b)
	would 	be
	applied 	twice,
both 	before
	and
	after
	the 	five-day 	extension
	of
	section
	1013,
	a
result
	surely
	not 	intended
	by
	the
	drafters
	of 	those
	provisions.
The
	last
	day
	for
	filing
	under
	his
	approach
	would 	have 	been
December
	7,
	a
	Saturday. 	Since
	PERE
	headquarters
	was
	not 	open
until
	the 	following
	Monday, 	December 	9, 	presumably 	the 	appeal
would
	not
	have 	been 	due
	until
	then.
	The 	December
	9
	deadline
would
	extend 	the 	original 	ten-day 	appeal 	period 	to 	twenty-one
days,
	clearly
	an 	anomalous
	result. 	Alternatively,
	if
	Regulation
32130(b)
	is 	applied 	only 	once, 	then 	presumably 	the
	last
	day 	for
filing
	would 	have 	been 	Friday,
	December 	6. 	The
	potential 	for
confusion
	and
	inconsistency 	is 	apparent.
5

mail
	its
	appeal
	until
	the
	day
	before
	a
	long
	holiday
	weekend,
	the
Association
	took
	the
	obvious
	risk 	that
	its
	appeal
	would
	not
arrive
	in
	a
	time
	y
	fashion.
7
The
	Association
	failed
	tu
	obviate
that 	risk
	by
	ensuring
	a
	timely
	filing,
	in
	accordance 	with
Regulation
	32135,	
by	
sending
	its
	appeal
	by
	certified
	or
	Express
United
	States
. 	. 	. 	l 	.
mail.
	Nor
	has
	the 	Association
	claimed
	that
	events
	beyond
	its
control
	forced
	it
	to 	wait
	until
	November
	27
	to
	mail
	its
	appeal.
8
In
	sum,
	upon
	the
	facts
	as
	presented
	by
	the
	Association,
	we
find
	no
	extraordinary
	circumstances
	which
	would
	excuse
	the
untimely
	filing.
ORDER
In
	accordance 	with 	the
	above
	discussion, 	the 	executive
director's
	rejection
	of
	the
	Fontana
	Classified
	Employees
Association's
	appeal 	as 	untimely
	is
	AFFIRMED,
	and 	Case
	No.
LA-D-176
	is
	hereby
	DISMISSED.
Chairperson
	Hesse 	and
	Member
	Burt 	joined
	in
	this
	Decision.
	Member
Porter's
	dissent
	begins
	on
	p. 	7.
7The
	risk 	is
	even
	more
	apparent 	considering
	that,
	according
to
	PERE
	Regulations 	then 	in
	effect,
	the 	appeal
	was 	due 	December 	2.
8In 	addition,
	it
	should
	be
	noted
	that 	the
	Board
	agent's
decision
	was
	first
	served
	on
	the 	Association
	on 	November
	12.
Because 	the 	decision 	inadvertently 	omitted 	several 	lines 	of
intended 	text,
	it
	was
	reissued
	on November 	18, 	and
	the 	Association
was
	then 	given
	a 	new
	10-day 	period 	within 	which 	to 	appeal.
6

Porter,
	Member,
	dissenting:
	I
	would
	find
	that
	the 	appeal
of 	the
	Fontana
	Classified
	Employees
	Association 	(Association)
had
	been
	timely
	filed
	and
	would
	accordingly 	reverse
	the
executive
	director's
	rejection
	of
	it.
In
	this
	case, 	the
	appellant
	Association
	had
	been
	served
	by
mail 	with 	the
	Board
	agent's
	order
	on
	November
	18,
	1985. 	Under
PERE
	Regulations
	32360(b)
	and
	32130(b)
	the
	appellant
	had
	to
	and
including
	December
	2, 	1985
	to 	exercise
	its
	right
	to
	file
	an
appeal
	with
	this
	Board.
1
The
	Association
	mailed
	its
	appeal
on 	November
	27
	and
	the 	appeal
	was
	received
	by
	this
	Board
	on
December
	4.
As
	the
	majority 	opinion
	acknowleges,
	this
	Board
	has
recently
	held
	that 	section
	1013
	of 	the
	California
	Code
	of
	Civil
lPERB
	Regulations
	are 	codified
	at
	California 	Administrative
Code,
	title
	8,
	section
	31001
	et
	seq.
Regulation
	32360(b)
	provides:
An
	original
	and	
5	
copies 	of 	the 	appeal
	shall
be
	filed
	with 	the
	Board
	itself
	in 	the
headquarters
	office
	within
	10
	days
	following
the 	date 	of 	service 	of 	the
	decision 	or
	letter
of 	determination.
Regulation
	32130(b)
	provides 	in pertinent 	part:
Except
	for
	filing
	required 	during
	a
	"window
period"
	..•
	whenever
	the
	last
	date 	to
	file
a
	document
	falls
	on
	Saturday,
	Sunday,
	or
	a
holiday
	...
	or
	PERB
	offices
	are 	closed, 	the
time
	period 	for
	filing 	shall
	be 	extended 	to
and
	include 	the 	next 	regular
	PERB
	business
day.
In 	applying 	these 	regulations,
	under 	Regulation
	32360 	(b)
the
	last
	day
	to 	file
	the 	appeal 	would 	have 	been 	Thursday,
7

Procedure
	applies 	to 	administrative 	actions
	before
	this
	Boardo
Lake
	Elsinore
	School
	District,
	(1986)
	PERB
	Order
	No.
	Ad-154.
Section
	1013
	provides
	in
	pertinent 	part:
(a)
	In
	case
	of 	service
	by
	mail
	.•.
	any
	right
or
	duty
	to
	do
	any
	act
	or
	make
	any
	response
within
	any
	prescribed 	period 	or
	on
	a
	date
certain
	after
	the
	service
	of
	such
	document
served
	by
	mail
	shall
	be
	extended
	five
	days
	if
the 	place 	of 	address
	is
	within
	the
	State
	of
California,
	.••
Calculating
	the 	period 	of
	time
	or 	the 	"date
	certain"
	within
which 	an
	appeal 	with
	this
	Board
	is
	considered
	to
	be
	timely
filed
	should 	not
	ordinarily
	present
	any
	special
	difficulties.
However,
	in 	the 	event
	that
	the
	last
	day
	or 	the 	date
	certain
	on
which
	to
	file
	a
	document
	falls
	on
	either
	a
	Saturday,
	Sunday
	or
a
	government-defined
	holiday,
	PERB
	Regulation
	32130(b)
	is
thereby 	triggered,
	and
	it
	then
	becomes
	a
	question 	of
determining 	the 	order 	in
	which
	the 	extensions
	mandated
	under
section
	1013
	of 	the
	Code
	of 	Civil
	Procedure
	and
	PERE
	Regulation
32130(b)
	are 	to
	be
	applied.
As
	illustrated
	by
	the
	facts 	in
	the
	instant
	case,
determining 	the 	order 	of 	the
	application
	of 	these 	provisions
can 	be
	critical.
	Appellant 	mailed
	its
	appeal
	November
	27, 	and
it
	was
	received
	at
	PERE
	on 	December
	4.
	Under
	the
	method
	of
November
	28th, 	but 	since
	under 	Regulation
	32130(b) 	the 	28th
	wasa
	holiday
	(Thanksgiving) 	as
	was
	the 	29th
	(state 	holiday),
	and
PERE
	offices
	were
	closed
	on
	the 	30th
	and 	December
	1st,
	the
	last
day
	for 	the 	Association 	to
	file
	an 	appeal
	was
	extended
	to
Monday, 	December 	2, 	1985.
8

calculation
	chosen by
	the
	majority 	opinion,
	if
	the
	five
additional
	days 	mandated 	by
	section
	1013
	are
	added
	initially
	to
the
	10
	days
	afforded
	by
	PERE
	Regulation
	32360(b)
	without
	any
consideration
	of 	the
	effect
	of
	PERE
	Regulation
	32130(b),
	the
appeal
	would
	have 	been
	due
	at
	the 	Board's 	headquarters
	office
on
	or
	before
	December 	3, 	1985
	in
	order
	to
	have 	been
	timely
filed.
	Under
	this
	application
	of
	section
	1013,
	the
Association's
	filing
	on
	December
	4
	would
	have
	been
	one 	(1)
	day
late.
	If
	instead,
	however,
	the 	extension
	mandated 	by
	section
1013
	is
	added
	to
	the 	date
	at
	which
	the
	Association's
	appeal
would
	have 	been
	due
	under
	PERE
	Regulations
	32360(b) 	and
32130(b),
	which
	was
	December
	2,
	the 	Association
	would
	have
	had
until
	December
	7
	to
	file 	its
	appeal,
	and
	the 	appeal
	would
therefore
	have 	been
	timely
	on
	December
	4.
Sections
	12,
	12(a)
	and
	12(b) 	of 	the
	Code
	of
	Civil
Procedure
2
are 	the
	statutory 	parallel
	provisions 	to
	PERE
Regulation 	32130(b).
	In
	determining 	the
	sequence 	under 	which
extensions 	pursuant 	to 	sections
	12,
	12(a)
	and 	1013
	are 	to
	be
2
section
	12
	of 	the
	California
	Code
	of 	Civil
	Procedure
provides:
The
	time
	in
	which 	any
	act
	provided 	by 	law
	isto
	be 	done
	is
	computed 	by
	excluding 	the
	first
day, 	and
	including 	the
	last,
	unless 	the
	last
day
	is
	a
	holiday,
	and
	then
	it
	is 	alsoexcluded.
Section 	12(a) 	of 	the 	California
	Code
	of 	Civil 	Procedure
provides, 	in 	pertinent 	part:
If
	the
	last
	day 	for 	the 	performance 	of 	any
act 	provided 	or 	required
	by 	law
	to 	be
9

granted, 	California 	courts
	have
	uniformly
	applied
	them
	in
	such
manner
	so
	as
	to 	preserve,
	if
	at
	all
	possible,
	the
	parties'
right
	of 	appeal.
	In
	other
	words,
	the
	courts
	have 	shunned
	the
arbitrary
	and
	draconian
	application
	of
	one
	statute
	before
another,
	and
	have
	striven
	instead
	for
	a
	coextensive
	and
harmonious
	application
	of
	their
	extensions
	in
	the 	order
	in
which
	the
	ultimate
	goal 	of
	preservation
	of
	the
	right
	of 	appeal
is 	fostered.
	See
	e.g.,
	Schoutens 	v.
	Superior
	Court
	(1950)
	97
Cal.App.2d
	855;
	857-858;
	Industrial
	Indem.
	Co.
	v. 	Ind.
	Acc.
Com.
	(1961)
	57
	Cal.2d
	123, 	126;
	Montgomery
	v.
	Norman
	(1953)
	120
Cal.App.2d
	855,
	857-858.
3
Furthermore,
	in
	favoring
	an
application
	in
	which
	these
	statutes
	are 	applied 	coextensively
performed
	within
	a
	specified
	period 	of
	time
	shall
	be
a
	holiday,
	then
	such
	period
	is
	hereby 	extended
	to
and
	including 	the 	next
	day 	which
	is
	not
	a
	holiday.
The
	term
	"holiday"
	•••
	shall
	mean
	all
	day 	on
Saturdays
	••••
Section
	12(b)
	of 	the
	California
	Code
	of
	Civil
	Procedure
provides:
If
	any
	city,
	county,
	state
	or 	public 	office,
other
	than
	a
	branch
	office 	is
	closed 	for 	the
whole
	of
	any 	day,
	insofar
	as
	the 	business 	of
that 	office 	is
	concerned,
	that
	day
	shall
	be
considered 	as
	a
	holiday 	for 	the 	purposes 	of
computing 	time 	under
	Sections
	12
	and
	12(a).
3For 	example,
	in
	Shoutens 	v. 	Superior 	Court, 	supra,
Section
	12
	of 	the
	Code
	of 	Civil
	Procedure
	was
	applied 	before
Section
	1013n
	Then,
	in 	order 	to 	preserve 	the
	appellant's 	right
of 	appeal 	the 	facts 	necessitated
	an
	application 	of 	section
	12
again
	after
	the 	application 	of 	Section 	1013.
	However,
	in
Montgomery 	v.
	Norman,
	supra, 	the
	situation 	required
	a
	change
from
	the 	order 	that
	had 	been 	applied 	in 	Shoutens.
Specifically, 	in 	order 	to 	ensure 	the 	timeliness 	of 	defendant's
filing, 	section
	1013 	was
	applied
	first,
	followed 	by 	an
application 	of 	section
	12
	of 	the
	Code
	of 	Civil 	Procedure.
10

and
	on
	an
	ad
	hoc
	basis,
	the
	California
	authorities 	cited 	are
consistent
	with
	the
	cardinal 	principle
	of
	California
	caselaw
favoring
	the
	preservation
	of 	the
	right
	of
	appeal
	and
	the
	hearing
of 	appeals
	on
	their
	merits.
	See
	e.g.,
	City 	of
	Santa 	Barbara
	v.
California
	Coastal
	Zone
	Conservation
	Comm.
	(1977)
	75
	Cal.App.3d
572,
	581, 	Gibson
	v.
	Unemployment
	Insurance
	Appeals
	Board
	(1973)
9
	Cal.3d
	494,
	499. 	Pesce 	v.
	Department
	of 	Alcoholic
	Beverage
Control
	(1958)
	51
	Cal.2d
	310,
	313.
The
	facts
	of 	the
	instant
	case
	highlight
	the 	manifest
unjustness 	of
	not
	applying
	section
	1013
	coextensively
	with
	PERB
Regulation 	32130(b).
	This
	appellant
	was
	not
	sleeping
	on
	its
rights,
	nor
	did
	it
	attempt
	to
	file
	its
	appeal
	after
	the
	due
date.
	The
	appellant
	served
	its
	appeal
	by 	mail
	on
	November
	27,
which
	was 	a
	full
	six
	days
	before
	December 	2,
	the 	date
	at
	which
it
	would 	have 	been
	due
	pursuant 	to
	PERB
	Regulation 	32130(b),
absent
	any
	application
	of
	section
	1013. 	In
	fact,
	December
	2,
1985
	was
	acknowledged 	by
	PERB's
	executive
	director
	as 	the
	date
(or, 	"date
	certain")
	on 	which
	the 	appeal
	was
	due.
4
Nonetheless,
	by 	an
	application
	of
	section
	1013
	whereby
	PERB
Regulation
	32130(b)
	could 	not
	also
	be
	applied, 	the 	majority
opinion 	divests 	this 	appellant 	of
	its
	right
	of 	appeal 	and,
ironically, 	defeats 	the 	very 	purpose
	of 	section
	1013.
4rn 	rejecting 	the 	appeal 	as 	untimely, 	our 	executive
director 	specifically 	identified
	December 	2
	as 	the
	due
	date
without 	any
	consideration 	of 	section 	1013.
11