Sacramento City Unified School District (PERB A055E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYJYfENT
	RELATIONS
	BOARD
SACRAMENTO
	CITY 	UlHFIED
	SCHOOL
	DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
	ASSOCIATION,
Employee
	Organization,
and
SERVICE
	EMPLOYEES
	INTERNATIONAL 	UNION,
LOCAL
	535,
Employee
	Organization,
APPELLANT.
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Case
	No.
	S-R-92
PERB
	Order
	No. 	Ad-55
Administrative
	Appeal
January
	29,
	1979
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Appearances: 	William
	E. 	Brown,
	Attorney
	(Brown 	&	
Conradi)
	for
Sacramento
	City 	Unified
	School
	District;
	Charles
	L.
	Morrone,
Attorney 	for 	California
	School 	Employers
	Association; 	Robert
	Jo
Bezemek,
	Attorney
	(Van Bourg,
	Allen,
	Weinberg 	& Roger)
	for
	Service
Employees
	International
	Union,
	Local 	535.
Before
	Gluck,
	Chairperson;
	Cossack
	Twohey 	and 	Gonzales,
	Members.
DECISION
This 	case
	comes
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	on
	appeal
	from
	the 	executive
	assistant's
determination 	that 	the 	Service
	Employees
	International
	Union,
Local
	525
	(hereafter
	SEIU)
	untimely
	filed 	its
	opposition 	to

exceptions
	taken
	by
	the
	California
	School
	Employees
	Association
(hereafter
	CSEA)
	to
	a
	hearing
	officer's
	proposed
	decision.
1
DISCUSSION
CSEA
	served
	its
	exceptions
	on
	November
	8,
	1978,
	thereby
giving
	SEIU
	until
	the
	close 	of 	business
	on November
	28,
	1978,
to
	file
	timely
	opposition.
2
It
	is
	not 	disputed
	that
	SEIU's
1
SEIU's
	document 	on
	appeal
	is 	entitled
	"Motion
	to
	Relieve
Late
	Filing
	of
	Brief."
	It
	refers
	to 	both 	the 	statement
	in
opposition 	to 	the 	exceptions
	and
	the
	accompanying
	brief,
	and
	is
apparently
	filed
	pursuant 	to
	California
	Administrative
	Code,
title
	8,
	section
	32360, 	which
	provides:
(a)
	An
	appeal
	may
	be
	filed
	from
	any
	administra-
tive
	decision,
	except 	as 	noted
	in 	sections
	32380
	of
these
	rules.
(b)
	The
	appeal
	shall
	be
	"filed"
	with 	the 	Executive
Assistant
	to 	the
	Board
	at
	the 	headquarters
	office
	within
10
	calendar
	days
	following 	the 	date 	of 	service 	of 	the
decision
or
	letter
	of 	determination.
(c)
	The
	appeal
	must 	be
	in writing
	and must
	state
the
	specific 	issue(s) 	of
	procedure,
	fact,
	law
	or
	rationalethat 	is
	appealed
	and
	state
	the
	grounds
	for 	the 	appeal.
2The
	applicable 	sections 	of 	California Administration
	Code,
title
	8, 	provide:
32130.
	In
	computing 	any
	period 	of
	time 	under
	these
rules
	and
	regulations,
	the 	period 	of
	time
	begins 	to
run 	the
	day
	after
	the
	act
	or 	occurrence
	referred
	to.
32135.
	All
	documents
	shall
	be
	considered
	"filed"
by 	a
	party
when
	actually
	received
	by
	the 	proper
recipient
	before 	the 	close 	of 	business
	on
	the
last
	date
	set 	for
	filing.
32310. 	Within
	20
	calendar
	days 	following 	the 	date
of 	service 	of 	the 	statement 	of 	exceptions, 	any
	party
may
	file
	an
	original
	and 	four 	copies 	of
	a
	response
to 	the 	statement 	of 	exceptions
	and 	a
	supporting 	briefwith 	the
	Board
	itself.
	Copies 	of 	these 	documents
shall 	be 	served 	concurrently
	on 	each
	party
	and 	proof
of 	service 	shall
	be
	filed 	with 	the 	Board
	itself.
-2-

opposition 	and 	supporting 	brief were not 	filed 	until 	November 	29,
1978.
SEIU maintains, 	however, 	that 	the 	late 	filing 	was 	due 	to
"inadvertence 	and 	excusable 	neglect." 	Specifically, 	although
both 	the 	preparation 	and 	due 	dates 	for 	SEIU's 	opposition had
been 	calendared, 	SEIU's 	attorney's 	secretary was 	ill 	on 	November 	20,
21 	and 	22, 	1978, 	the 	time when 	the 	opposition 	to 	CSEA's 	exceptions
normally would 	have 	been 	prepared 	for 	filing. 	November 	23 	and
24, 	1978 were 	office 	holidays. 	Thereafter, 	the 	secretary mis-
took 	the 	November 	28, 	1978, 	due 	date 	on 	her 	calendar 	for 	the
preparation 	date.
SEIU's 	attorney, 	who 	is 	based 	in 	San 	Francisco, 	learned
of 	this 	error 	at 	4:15 	p.m. 	on 	November 	28, 	1978, 	when 	he 	was
given 	the 	Stafement 	in 	Opposition 	to 	sign. 	At 	that 	time, 	he
was 	unable 	to 	arrange 	for 	the 	brief 	to 	be 	delivered 	to 	PERB
headquarters 	in 	Sacramento 	before 	the 	close 	of 	the 	business
day. 3
Board 	rule 	32133 	states:
A late 	filing 	may 	be 	excused 	in 	the 	discretion
of 	the 	Board 	only 	under 	extraordinary 	circumstances.
In Anaheim Union High 	School 	District, 4 the 	Board 	defined
"extraordinary 	circumstances" 	as 	"out 	of 	the 	ordinary, 	remarkable,
3The 	brief 	SEIU 	intended 	to 	file 	with 	its 	Statement 	in
Opposition 	to 	CSEA's 	exceptions 	is 	the 	same 	brief 	that 	it 	filed
with 	the 	hearing 	officer. 	Hence 	it 	is 	already 	a 	part 	of 	the
appellate 	record 	in 	this 	case.
4 (7/17/78) 	PERB 	Order 	No. 	Ad-42 	at 	p. 	2. 	See 	also 	California
State 	Communications 	Association 	(1/2/79) 	PERB 	Order 	No. 	Ad-52.
-3-

unpredictable
	situations
	or
	occurrences
	far
	exceeding
	the
	usual
which
	prevent
	a
	timely
	filing."
	While
	both
may
	be
	unfortunate,
neither
	the
	illness
	of
	SEIU's
	attorney's
	secretary
	nor
	her
mistake 	regarding 	the
	significance 	of
	November 	28 1
	1978,
constitute
	extraordinary
	circumstances.
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that 	the
executive
	assistant's
	decision
	to
	reject
	Service
	Employees
International
	Union,
	Local
	535's
	Statement
	in
	Opposition
	and
supporting
	brief
	as 	untimely
	filed 	is
	affirmed.
-4-

STATE OF CALIFORNIA f0MUN0 G. BROWN JR., Governor
PUB!.!C EMPLOYMENT RiLA T10NS BOARD
iecdquorters Office
923 12th Street, Suite 201
Sccrcmento, California 95814
(916) 322-3088
November 30, 1978
Mr. Robert J. Bezemek
VAN BOURG, ALLEN, WEINBERG & ROGER
45 Polk Street
San Francisco, CA 94102
Re: Sacramento City USD, S-R-92
Dear Mr. Bezemek:
This will acknowledge receipt of the Statement in Opposition to
Exceptions and Brief on Behalf of SEIU 535. Unfortunately, your
response was not timely filed in accordance with Section 32310 of
the Board's rules �nd regulations.
The proof of service on the employer's exceptions reveals that
they were serred on November 8, 1978. Your response, however,
was not: filed until November 29, 1978. As a result: of this
failure to timely file, the response cannot be submitted to
the Board itself for consideration.
You may appeal this rejection of your filing to the Board itself
in accordance with Section 32360. If you choose to do so, your
appeal is due on or before ten (10) days after service of this
letter, December 11, 1978. (December 10, 1978 is Sunday).
Sincerely,
STEPHEN BARBER
Executive Assistai.,t to the Board
SB:dd