Regents of the University of California (PERB 0365H)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-125-H
PERB Decision No. 	365-H
December 14, 	1983
Appearances; 	Bernard L. 	Allamano and Phillip E. 	Callis,
Attorneys 	for California State Employees' 	Association;
Donald L. 	Reidhaar, 	James N. 	Odle and Gerald A. 	Becker,
Attorneys 	for 	the 	Regents 	of 	the 	University of California.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
BURT, Member: 	This case 	is before 	the Public Employment
Relations Board 	(PERB) 	on an 	appeal 	by 	the California State
Employees' 	Association 	(CSEA) 	to the dismissal of 	its complaint
by an administrative 	law judge 	(ALJ).
FACTS
On September 	29, 	1982, 	PERB 	issued complaint 	in the
above-captioned case, 	No. 	SF-CE-125-H, 	which alleged 	that the
Regents of 	the University of California 	(UC) 	violated
subsections 	3571(a) 	and 	(b) 	of 	the Higher Education Employer-
Employee 	Relations 	Act 	(HEERA).1
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
)
)
)
)
)
)
)
)
)
)
)
______________ )

On March 	2, 	1983, ALJ James W. 	Tamm sent CSEA a letter
warning 	that 	if 	it 	failed 	to 	file 	a 	"Request 	for 	Hearing 	- At
Issue Declaration" 	on or 	before 	the close of business March 	29,
1983, 	the charge would be dismissed without 	further 	notice. 	A
copy of 	a 	standard 	at-issue 	declaration was 	enclosed, 	so 	that
CSEA could 	simply 	fill 	in 	the 	blanks 	and 	return 	it 	to PERB 	if
it 	so desired.
CSEA 	neither 	filed 	the 	at-issue 	declaration 	nor
communicated 	with PERB 	in 	any 	other 	manner 	regarding 	the 	charge
by March 	29, 	1983. 	On April 5, 	1983, 	the ALJ 	issued the Notice
of 	Dismissal of Complaint which 	is 	challenged 	in 	the 	instant
appeal.
CSEA's Exceptions
CSEA contends 	that 	its 	failure 	to comply with 	PERB
regulation 	32635 	should 	be 	excused 	due 	to 	the 	existence 	of
"extraordinary 	circumstances" 	within 	the meaning 	of 	PERB
regulation 32136. 	In the alternative, 	CSEA contends 	that PERB
regulation 	32136 	is 	invalid 	because 	it 	establishes 	a higher
standard 	for 	excuse 	of 	a 	late 	administrative 	filing 	than 	is
"currently recognized 	by 	the 	courts 	of 	this 	state."
DISCUSSION
PERB regulation 32652 	(Cal. Admin. Code, tit. 	8, part III)
states, 	in pertinent part:
et 	seq. 	All 	references 	are 	to 	the Government Code 	unless
otherwise 	noted.
22

If 	a 	request 	for 	hearing 	is 	not 	filed 	within
six months 	from 	the 	date 	of 	issuance 	of 	the
complaint, 	the 	complaint 	will 	be 	dismissed
unless 	good cause 	is 	shown.
Regulation 	32136 	provides 	as 	follows:
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.
CSEA 	contends 	that 	the 	following 	facts 	constitute
extraordinary 	circumstances 	in 	this 	case:
At 	the 	time 	of 	the ALJ's 	warning 	letter 	and 	the 	due 	date
for 	the 	at-issue 	memorandum:
(1) 	CSEA's entire operation was 	in great 	turmoil 	due 	to
CSEA's 	decision 	to 	withdraw 	from 	the 	UC 	representation 	case;
(2) 	Marilyn Sardonis, 	the 	field 	representative 	who was
handling 	the 	case 	for 	CSEA, 	was 	in 	the 	process 	of 	transferring
her 	files 	to another 	field 	representative, 	Toni Jones;
(3) 	CSEA 	laid 	off Toni Jones 	on 	the 	day 	that Sardonis1
files, 	including 	the 	instant 	case, 	were 	transferred 	to her.
CSEA 	argues 	that:
As 	a 	result 	of 	this 	confluence 	of 	events,
Tamm's letter of March 	2, 	1983, 	was 	filed
away 	without 	having 	been 	read 	by 	anyone
until 	after 	PERB 	had 	already 	dismissed 	the
charge.
Based 	upon 	the 	above, 	CSEA contends 	that 	it 	should 	be
excused 	from 	its 	obligation 	to 	comply 	with 	applicable 	PERB
regulations.
33

In Ocean View School District 	(6/10/80) 	PERB Decision
No. 	131, 	PERB held 	that 	the 	fact 	that petitioner's counsel
experienced 	chest pains 	on 	the 	day prior 	to 	the 	deadline 	for
filing 	exceptions 	did 	not 	constitute 	"extraordinary
circumstances" 	to excuse 	the 	filing 	of 	exceptions which 	were
one 	week 	late.
In Regents 	of 	the University of California 	(8/24/83) 	PERB
Decision No. 	340-H, 	PERB rejected a late 	filing of 	an
"at-issue" memorandum such 	as 	that 	involved 	herein, 	finding
that 	the 	existence 	of 	pending 	settlement 	discussions 	did 	not
constitute 	extraordinary 	circumstances.
CSEA cites 	no case 	for 	the proposition 	that 	the 	factors
described 	above 	constitute 	"extraordinary circumstances" 	within
the meaning of 	rule 32136.
In Anaheim Union High 	School District 	(7/17/78) 	PERB 	Order
Ad-42 r PERB noted, 	at p. 	3, 	that the newly-adopted
"extraordinary circumstances" 	standard 	for 	acceptance 	of 	late
filings was 	a higher 	standard 	than 	its predecessor, 	"sufficient
cause." 	The Board went on 	to 	state:
. 	. 	. 	extraordinary circumstances means
exactly 	that 	- out 	of 	the 	ordinary,
remarkable, 	unpredictable 	situations or
occurrences 	far 	exceeding 	the 	usual which
prevent 	a 	timely 	filing.
It 	is 	clear 	from 	the 	facts 	as 	alleged 	by CSEA 	that 	the
failure 	to 	file 	the 	at-issue memorandum was 	occasioned 	in 	the
instant 	case 	by circumstances 	entirely within CSEA's control.
. .. .
4

We decline 	to hold 	that a party's 	own neglect, 	inadvertent or
otherwise, 	constitutes 	"extraordinary circumstances" 	sufficient
to excuse 	a 	late 	filing 	under 	our 	regulations.
We 	find 	CSEA's 	alternative 	argument 	similarly
unpersuasive. 	CSEA argues 	that PERB's 	regulation 	32136 	is
invalid 	because 	it 	imposes 	a higher 	standard 	to excuse 	a 	late
filing 	than 	that 	"currently 	recognized 	by 	the 	courts 	of 	this
state." 	CSEA argues 	that:
The 	appellate courts 	of 	this 	state 	have
repeatedly 	held 	that 	administrative 	agencies
must excuse 	a short delay 	in 	filing 	an
administrative 	appeal 	if 	the 	delay 	is 	for
'good 	cause1 and 	there 	has 	been 	no prejudice
to the 	agency.
This assertion 	is 	simply 	incorrect. 	What 	courts 	have done 	is
to 	interpret 	the 	standard 	"good 	cause" 	to allow late 	filings
occasioned 	by 	"excusable neglect" 	of counsel. 	None of 	the
cases 	cited 	by CSEA deal 	with 	the 	higher 	standard 	which PERB
has 	adopted 	in 	its current 	regulations, 	that of 	"extraordinary
circumstances."
Rather, 	those cases 	involved either 	situations 	in which 	the
agency 	regulations 	in 	question 	expressly 	permitted 	receipt 	of
late 	filings 	upon 	the 	lesser 	showing 	of 	"good cause" 	[Gibson v.
Unemployment Ins. Appeals Bd. 	(1973) 	9 Cal.3d 494; 	Flores v.
Unemployment Ins. Appeals Bd. 	(1973) 	30 Cal.App.3d 681] 	or 	in
which 	no 	express 	standard 	was 	prescribed 	in 	agency 	regulations,
in which 	cases 	the 	court 	adopted 	the 	"good 	cause" 	standard 	and
found 	that 	it was met 	[Faulkner v. 	Public Employees' 	Retirement
55

System 	(1975) 	47 Cal.App.3d 731; 	Gonzales v. 	California State
Personnel Board 	(1977) 	76 Cal.App.3d 364].
There 	is 	no 	indication 	in 	any of 	the 	cases 	cited 	by CSEA
that 	the 	courts 	would have 	invalidated 	a higher 	standard 	such
as 	"extraordinary circumstances" 	had 	the 	agencies 	in question
adopted 	it.
Even 	if PERB were 	to adopt a 	"good cause" 	standard, 	we
would 	not 	find 	that 	the 	circumstances 	of 	the 	instant 	case 	would
constitute 	"excusable 	inadvertence" 	within 	the meaning 	of 	the
cited cases. 	The 	time 	limit 	in 	this 	case was a 	full 	six
months, 	as opposed 	to the 	far 	more 	stringent 	time 	limits
involved 	in the cited cases 	(Gibson and Flores, 	10 days;
Faulkner, 	30 days; 	and Gonzales, 	20 days). 	In Gibson, 	the
three-day 	delay was 	due 	to 	the 	failure 	of 	a 	secretary 	in 	a
legal 	aid office 	to note 	a 	filing deadline 	on 	the 	office
calendar. 	In Flores, 	the 	three-day delay was occasioned 	by 	a
secretarial backlog 	in a legal aid office. 	In Faulkner, 	a
four-day 	delay 	was 	occasioned 	by 	confusion 	resultant 	from 	a
partnership dissolution 	and 	attendant 	personnel 	changes 	in
petitioner's attorney's office. 	In Gonzales, 	a trial court
found 	that 	a 	breakdown 	in 	communications 	between 	petitioner 	and
his 	attorney 	occasioned 	by 	the 	strain of 	dealing 	with 	parallel
criminal 	proceedings 	of 	a 	serious 	nature 	constituted 	good 	cause
for 	the 	six-day delay 	in filing. 	In each of 	the above cases,
the 	delay was 	discovered 	and 	filings 	were 	quickly 	submitted 	by
petitioner. 	None of 	the 	aggrieved 	parties 	received prior
6

warning 	from 	the 	agencies 	involved 	regarding 	the 	upcoming
filing deadline.
In this case, 	on 	the other 	hand, 	CSEA had 	six months 	in
which 	to 	file 	the 	"at-issue memorandum," 	and did 	not 	realize
that 	it 	had 	failed 	to meet 	the deadline 	until 	it 	received
notification of 	the dismissal 	from PERB. 	Further, 	CSEA was
served 	with 	a warning 	letter 	by PERB 	27 	days prior 	to 	the
deadline, 	reminding 	it that 	the case would 	be dismissed 	if 	it
failed 	to file 	the 	required memorandum 	and 	providing 	it 	with 	a
form by means 	of 	which 	it 	could 	do 	so. 	The CSEA representative
assigned 	to 	the 	instant 	case 	admits 	in her 	declaration 	that 	she
saw 	the 	warning 	letter 	and opened 	it, 	but 	that 	she 	did 	not 	read
it.
To summarize, 	we do not 	find 	that 	the circumstances 	noted
by CSEA 	constitute 	"extraordinary 	circumstances" 	sufficient 	to
excuse a 	late 	filing under 	PERB Regulation 	32136. 	Further, 	we
do 	not 	find 	that PERB 	is mandated 	by California 	decisional 	law
to adopt 	the 	lesser 	standard of 	"good 	cause" 	to excuse 	late
filings.
ORDER
On 	the 	basis 	of 	the 	foregoing Decision 	and 	the 	record 	as 	a
whole, 	it 	is hereby ORDERED that 	the charge 	in case
No. 	SF-CE-125-H be DISMISSED.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
77