State of California (Department of Personnel Administration) (PERB 0648SA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA 	GOVERNMENT,
Charging Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
) 	Case 	No. 	S-CE-125-S
Request 	for 	Reconsideration
PERB Decision No. 	648-S
PERB Decision No. 	648a-S
December 20, 	1983
)
)
)
)
)
)
)
)
)
Appearances: 	Ernest F. 	Schulzke, 	Attorney for Professional
Engineers 	in California Government.
Before Craib, 	Porter and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	from a decision of
PERB's 	executive 	director 	denying 	the 	request 	of 	the 	Professional
Engineers 	in California Government 	(PECG) 	for late 	filing of 	its
request 	for reconsideration of PERB Decision No. 	648-S. 	The
executive 	director 	found no 	"extraordinary 	circumstances," 	as
required 	by 	PERB 	Regulation 	32136.1 The 	filing 	deadline 	for 	the
1PERB Regulations 	are 	codified 	at 	California Administrative
Code, 	title 	8, 	section 31001 	et seq. 	Regulation 32136 	states:
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.
The 	executive 	director 	also 	found 	that 	the 	request 	for 	late
filing would 	fail 	to meet a 	"good cause" 	standard. 	The 	Board
recently 	adopted 	an 	amendment 	to 	Regulation 	32136 	which would
_____ )

substitute 	a 	"good 	cause" 	standard 	for 	the 	existing
"extraordinary circumstances" 	standard. 	That amendment 	is 	being
reviewed by the 	Office 	of Administrative 	Law and 	is 	not 	yet 	in
effect.
reconsideration request was 	January 	7, 	1988, 	and PECG's request
was 	filed on February 	17, 	1988.
DISCUSSION
PECG puts 	forth three reasons 	why the 	late 	filing 	should be
excused: 	(1) 	the 	Board took 	several 	years 	to 	issue 	the decision
and, 	in the 	interim, 	the 	leadership of 	PECG changed dramatically
(as did the 	"facts 	surrounding the bargaining process"), 	making
it difficult to decide how to respond to the decision; 	(2) 	since
the decision was 	issued 	just before 	the Christmas 	season, 	it was
very difficult 	to 	consult with unit members 	and reach 	some
consensus 	on whether to request reconsideration or 	file 	a
petition 	for review;2 (3) 	the 	Board's decision was 	confusing
and unclear 	and 	clarification 	is 	essential 	in 	order 	to 	avoid
"substantial 	confusion 	and 	needlessly 	spawn[ed]
litigation . 	. 	. 	."
In Anaheim 	Union High School 	District 	(1978) 	PERB Order
No. 	Ad-42, 	the Board defined 	"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.
2An untimely 	petition 	for review was 	filed 	and was 	dismissed
by the 	Third Appellate 	District Court on February 	18, 	1988 	(Case
No. 	C003756).
22

In that 	case, 	the 	Board 	stated that mail 	delays 	are 	ordinary and
common 	occurrences 	which do not 	constitute 	"extraordinary
circumstances."
The 	late 	filing 	cases 	addressed by 	the 	Board 	have 	involved
mail 	delays 	or 	other 	"eleventh hour" 	attempts 	at 	filing that have
gone 	awry 	for 	one 	reason or 	another. 	None 	have 	involved 	claims
such as 	those here, 	where 	the 	timing or 	content of 	the 	Board's
decision purportedly prevented a timely 	filing. 	(U. 	C. 	Riverside
(Jones) 	(1984) 	PERB Decision No. 	386-H 	(mail delay does not
constitute 	"extraordinary circumstances"); 	Ocean View School
District 	(1980) 	PERB Decision No. 	131 	(late 	filing not excused
where 	attorney 	for 	the 	charging party 	experienced 	chest 	pains 	the
day before 	the 	filing deadline, 	no extension of 	time was
requested, 	and the 	filing occurred 	a week 	later despite 	the
attorney being back at work the day after the due date);
Wheatland School District 	(1985) 	PERB Order No. 	Ad-149 	(failure
of 	courier 	service 	to deposit appeal 	in U. 	S. 	mail 	not
"extraordinary circumstances"); 	Alum Rock School 	District 	(1985)
PERB Order No. 	Ad-147 	(late 	filing excused where 	deposited 	in
certified mail 	before midnight on last day to 	file, 	but
postmarked 	the 	next 	day).)
Though 	there 	is 	no 	Board precedent 	directly 	on point 	to
guide us 	in our decision, 	we do not 	find this 	to be 	a difficult
case. 	We 	find nothing in PECG's 	justifications 	for 	the 	late
filing 	that 	can 	fairly be 	termed 	"out 	of 	the 	ordinary,"
"remarkable," 	"unpredictable," 	or 	"far exceeding the usual 	which
W
	3

prevent a timely filing." 	PECG's 	last argument, 	that the 	late
filing 	should be 	excused due 	to 	the 	lack of 	clarity 	in 	the
Board's decision, 	misses 	the mark entirely. 	That argument
addresses 	the merits 	of 	the 	underlying decision 	and 	fails 	to
address at all 	the reasons 	for the late 	filing, 	which, 	of course,
is 	the 	focus of our inquiry.
The 	remaining 	justifications 	for 	the 	late 	filing 	can be
summarized 	as 	reflecting 	organizational 	problems 	which made
deciding on a course of 	action difficult. 	While more 	to 	the
point, 	these arguments 	are unpersuasive. 	We know of no practice,
of 	any 	judicial 	or quasi-judicial 	body, 	to excuse 	a 	late 	filing
simply because 	a 	party 	claims 	that 	its 	inability to decide 	on a
course 	of 	action prevented timely 	preparation 	of 	the 	document 	to
be 	filed. 	Undoubtedly, 	the need 	for responsive 	legal 	action
often arises at inconvenient times. 	That may be unfortunate, 	but
it 	is 	far 	from uncommon. 	Where 	it appears 	that a deadline 	cannot
be met, 	the 	proper action is 	to request 	an extension of 	time 	to
file.3 To 	simply 	let the 	deadline 	pass 	and 	file 	over 	a month
late, 	as happened here, 	cannot be excused. 	That is 	especially
true where, 	as 	here, 	the purported inability to provide a timely
filing was 	apparently known well 	ahead 	of 	the 	deadline.
'PERB 	Regulation 32132(a) 	states, 	in pertinent part:
A request 	for 	an 	extension 	of 	time within
which to 	file 	any document with 	the 	Board
itself 	shall 	be 	in writing and 	shall 	be 	filed
at 	the headquarters 	office 	at 	least 	three
days 	before 	the 	expiration of 	the 	time
required 	for 	filing.
PERB
4

Furthermore, 	to excuse a late 	filing under these
circumstances 	would make 	a mockery 	of 	our 	filing 	deadlines 	and 	of
our 	standard 	for accepting 	late 	filings. 	To be 	consistent, 	we
would have 	to 	routinely excuse 	late 	filings 	during the 	holiday
season 	or whenever 	an 	organization 	could 	show 	substantial
turnover in leadership. 	To excuse 	late 	filings 	on that basis
would no doubt 	constitute 	the 	"exception 	that 	swallows 	the
rule."4
Lastly, 	even if we were 	inclined to excuse 	the 	late 	filing,
it 	is 	questionable whether we 	could properly entertain the
request 	for reconsideration at 	this 	time. 	It would 	appear 	that
the 	Board does 	not 	have 	jurisdiction 	to 	reconsider 	its 	decision
once 	a petition 	for review has been 	filed and/or the 	time 	to 	seek
judicial review has expired. 	Ralph C. 	Dills Act5 section
3520(c), 	which governs petitions 	for 	judicial review of Board
decisions, 	states, 	in pertinent part: 	"Upon the filing of 	such
petition, 	the 	court 	shall 	cause notice 	to be 	served upon the
board 	and 	thereupon 	shall 	have 	jurisdiction 	of 	the 	proceeding."
(Emphasis 	added.) 	(See 	also Olive 	Proration Program Committee 	v.
Agricultural Prorate Commission 	(1941) 	17 Cal.2d 204, 	209-210;
4While the 	aforementioned 	amendment 	to 	Regulation 	32136 	is
not yet 	in effect, 	we note 	that we 	also would not 	excuse 	this
late 	filing under a 	"good cause" 	standard.
'The 	Ralph C. 	Dills Act is 	codified at Government Code
section 	3512 	et 	seq.
The
un
	5

Save Oxnard Shores v. 	California Coastal Commission 	(1986) 	179
Cal.App.3d 	140, 	149-150, 	hg.den. 	(an administrative agency may
not 	change 	a determination made 	on the 	facts 	presented at 	a 	full
hearing once 	its 	decision has 	become 	final).)
ORDER
The 	Professional 	Engineers 	in 	California 	Government's
request 	for 	late 	filing of 	its 	request 	for reconsideration 	of
PERB Decision No. 	648-S 	is hereby DENIED.
Members 	Porter 	and Camilli 	joined 	in this 	Decision.
6