Los Angeles County Superintendent of Schools (Smyth) (PERB 0413E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LEO FRANCIS 	SMYTH,
Charging Party,
v.
LOS ANGELES COUNTY SUPERINTENDENT
OF SCHOOLS,
Respondent.
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) 	Case No. 	LA-CE-1669
PERB Decision No. 	413
October 	9, 	1984
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Appearances; 	Barbara Smyth for 	Leo Francis Smyth 	(deceased).
Before Hesse, Chairperson; 	Jaeger and Morgenstern, Members.
DECISION
MORGENSTERN, 	Member: 	Barbara Smyth, 	on behalf of her
deceased 	father, 	Charging Party Leo Smyth, 	has 	filed an
untimely appeal of 	the dismissal of 	this case by an agent of
the Public Employment Relations Board 	(PERB or Board). 	For 	the
reasons discussed herein, 	we affirm the dismissal.
FACTS AND PROCEDURAL HISTORY
On November 	1, 	1982, 	Leo Smyth filed an entirely
unintelligible charge 	against 	the Los Angeles County
Superintendent of Schools. 	Finding 	the charge 	"ambiguous,
vague and unintelligible," 	on May 17, 	1983, 	the Board agent
issued 	a 	letter 	serving notice of 	leave to amend, 	requesting
that 	the charge 	be 	amended 	to contain a 	"clear 	and concise
statement 	of 	facts 	and conduct 	alleged 	to 	constitute 	an 	unfair
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practice," 	as 	required 	by PERB regulation 	32615.1 Charging
Party submitted no response and, 	on June 22, 	1983, 	PERB issued
a notice 	of Refusal 	to 	Issue Complaint 	and Dismissal 	of Unfair
Practice Charge. 	The notice 	stated 	that 	the dismissal could be
appealed before July 12, 	1983. 	Again, 	Charging Party submitted
no response and, 	on July 21, 	1983, 	PERB issued a Notice of
Closure of Case.
On August 29, 	1983, 	Charging Party's daughter, 	Barbara
Smyth, 	responded by letter, 	indicating 	that her 	father had died
on July 13, 	1983, 	but that 	"his family intended to carry on
with 	the 	proceedings," 	and 	requesting 	advice 	as 	to what
procedures 	to 	follow.
On September 	1, 	1983, 	PERB advised Ms. 	Smyth that an
untimely appeal may be filed with 	the 	Board pursuant 	to 	PERB
regulation 32136.22
On September 19, 	1983, Ms. 	Smyth filed an appeal, 	claiming
that her 	father's 	death 	constituted 	extraordinary circumstances
justifying 	the delay 	in appealing 	the dismissal. 	The 	appeal
states as 	follows:
1PERB 	regulations 	are 	codified 	at California
Administrative Code, 	title 8, 	section 31001 et seq.
2PERB 	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.
2
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My 	father's 	last contact with us 	was 	on
Monday, 	July 11, 	1983, 	when he left for Los
Angeles. 	On Wednesday, July 13, 	1983, we
were 	notified 	that my 	father 	had collapsed
and had been 	taken by paramedics 	to 	the
Greater 	El Monte Hospital 	emergency 	room
where he 	never 	regained consciousness.
Ms. 	Smyth 	further 	urges 	that we 	take 	into consideration 	the
distances 	between 	family 	residences which caused delay 	in
compiling 	information needed 	in 	filing 	this 	appeal.
DISCUSSION
In 	Anaheim Union High 	School District 	(7/17/78) 	PERB Order
No. 	Ad-42, 	the Board defined the 	"extraordinary circumstances"
standard 	for 	acceptance of 	late 	filings 	as circumstances 	that
are
. 	. 	. 	out of the ordinary, 	remarkable,
unpredictable 	situations 	or 	occurrences 	far
exceeding 	the 	usual which prevent 	timely
filing.3
Thus, 	the purpose of rule 32136 	is to excuse a late filing
where 	extraordinary circumstances 	have 	prevented 	a 	timely
filing. 	It 	is, 	therefore, 	clear 	that such extraordinary
circumstances must occur 	prior 	to 	the 	final 	filing date.
il3 In Anaheim, 	supra, 	the Board held that mail delays are
ordinary, 	commonly accepted 	occurrences 	and generally will 	not
serve 	to excuse a 	late 	filing. 	See 	also Ocean View School
District 	(6/10/80) 	PERB Decision No. 	131 	(counsel's 	illness on
the day prior 	to the deadline 	for 	filing 	exceptions did not
constitute 	extraordinary circumstances 	to 	excuse 	the 	filing of
exceptions a week late), 	and Regents of the University of
California 	(8/24/83) 	PERB Decision No. 	340-H 	(pending
settlement 	discussions 	do 	not 	constitute 	extraordinary
circumstances 	for 	the late filing of an 	"at 	issue" memorandum).
3
3
3

The present appeal 	argues 	that 	the 	Charging 	Party's 	death
on July 13, 	1983, 	a day after 	the final date to appeal 	the
dismissal, 	constitutes 	an extraordinary circumstance 	to excuse
the late filing. 	Ms. 	Smyth's appeal states 	that 	the distances
between 	family 	residences 	contributed 	to her 	delay 	in compiling
the 	information needed in 	filing 	the 	appeal before 	PERB.
However, 	neither Mr. 	Smyth's death, 	the day after the final
filing date, 	nor Ms. 	Smyth's conduct thereafter, 	serves to
explain Mr. 	Smyth's 	failure to appeal 	the dismissal before his
death.
While 	illness could have prevented Mr. 	Smyth 	from filing 	a
timely appeal before his death, 	Ms. 	Smyth's appeal does not
indicate 	that 	illness preceded 	her 	father's 	death.
Because Ms. 	Smyth's claim of extraordinary circumstances 	is
based on her 	father's death, 	rather 	than a disabling 	illness
preceding death, 	and because his death occurred after 	the 	time
for 	appeal had elapsed, 	we find here no allegation of facts
indicating 	extraordinary circumstances 	to 	justify 	acceptance 	of
a late appeal.4
4Finding 	no extraordinary 	circumstances 	that 	excuse 	the
late 	filing of 	this 	appeal, 	we need not decide whether 	this
charge 	is of such character 	as 	to 	survive 	the death of Charging
Party. 	(See California Code of Civil Procedure, 	section 385;
California Probate Code, 	section 573; Allen v. 	Western
Airlines, 	Inc. 	(1980) 	110 Cal.App.3d 767; 	Skelly v. 	State
Personnel Board 	(1975) 	15 	C.3d 	194.)
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Moreover, 	the wholly unintelligible nature of the charge
compels 	a 	finding 	that 	the 	charge was 	properly dismissed 	for
failure to state a prima facie case.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact and conclusions
of law, 	and 	the entire record in this case, 	Barbara Smyth's
appeal 	in Case No. 	LA-CE-1669 	is hereby DENIED.
Chairperson Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
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