University of California Riverside (PERB 0386H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TOM 	JONES,
Charging 	Party,
Appellant,
v.
UNIVERSITY OF CALIFORNIA, 	RIVERSIDE,
Respondent.
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) 	Case No. 	LA-CE-78-H
PERB 	Decision No. 	386-H
June 14, 	1984
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Appearances: 	Robert Austin, 	representing Tom Jones;
Claudia Gate, 	Attorney 	for 	the 	University of California,
Riverside.
Before Hesse, 	Chairperson; 	Tovar 	and Jaeger, Members.
DECISION
TOVAR, 	Member: 	Tom Jones 	appeals1 the 	decision of 	the
Executive 	Director 	of 	the Public 	Employment 	Relations 	Board
(PERB or Board) 	to reject, 	as untimely, 	his 	request 	for an
extension of 	time 	to 	appeal 	a dismissal of 	an unfair 	practice
charge 	filed 	against 	the 	University of California 	(University).
After 	a 	complete 	review of 	the 	record, 	we 	affirm the
Executive 	Director's 	determination 	and 	dismiss 	the 	appeal
consistent 	with 	the 	discussion 	below.
1Mr. 	Jones' 	appeal 	is 	filed 	pursuant 	to PERB 	regulation
32360. 	The 	rules 	and 	regulations of 	the Board 	are 	codified 	at
California Administrative Code, 	title 8, 	section 31001 et 	seq.
______ )

FACTS
In a letter dated November 23, 	1982, 	Peter Haberfeld, 	PERB
regional 	attorney 	in San Francisco, 	notified Tom Jones, 	the
Charging Party 	(or Appellant), 	of his 	refusal 	to 	issue a
complaint 	in 	the 	instant 	case 	and 	his 	dismissal of 	the 	charge.
That 	letter 	explained 	that 	if 	Charging Party wished 	to 	appeal
the dismissal, 	the 	appeal 	had 	to be 	filed with PERB on or
before December 	13, 	1982. 	The 	letter 	also 	included 	an
explanation of 	how one might 	obtain 	an 	extension of 	time 	to
file an appeal.
In a letter dated December 10, 	1982, Mr. Jones'
representative, 	Robert Austin, 	requested 	that 	the Board grant
an 	extension 	of 	time 	for Jones 	to 	file 	an 	appeal.
The Board 	did 	not 	receive Mr. 	Austin's 	letter 	until
December 13, 1982.
On December 	14, 	1982, 	PERB's Executive Director 	rejected
the 	request 	for 	an 	extension 	as 	untimely.
DISCUSSION
PERB 	regulation 	32635 	provides 	in 	part 	that 	a 	charging
party may 	appeal 	the 	dismissal of 	a 	case 	to 	the Board 	itself
within 20 	days of 	the date of 	service of 	said dismissal.
In 	the 	alternative, 	a party has 	an opportunity to 	request
an 	extension of 	time 	upon which 	to 	file 	an 	appeal. 	The Board
may 	grant 	such 	an 	extension 	as 	long 	as 	the 	party 	complies 	with
the 	requirements of PERB 	rule 	32132(a) 	which 	states 	that:
A 	request 	for 	an 	extension must 	be 	filed 	at
least 	three 	(3) 	calendar 	days before 	the
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expiration of 	the 	time 	required 	for 	filing
the 	document. 	The 	request must 	indicate
good cause 	for 	and, 	if known, 	the position
of 	each 	other 	party 	regarding 	the 	extension,
and 	shall be 	accompanied 	by proof 	of 	service
of 	the 	request 	upon 	each 	party. 	(Emphasis
added.)
In 	the 	instant case, 	the 	appeal of 	the 	regional attorney's
decision 	to dismiss 	was 	due 	at PERB on or 	before December 	13,
1982, 	and 	the 	request 	for 	an extension of time was due on or
before December 	10, 	1982. 	PERB did 	not 	receive 	the 	request 	for
an extension until December 	13, 	1982 	- 	three days 	late. 	Hence
the 	executive 	director's 	rejection.
However, 	the Board's 	regulations 	also provide 	that 	a 	late
filing 	"may be 	excused," 	in 	the discretion of 	the Board, 	under
extraordinary 	circumstances. 	A 	late 	filing 	which 	has 	been
excused 	becomes 	a 	timely 	filing 	under 	these 	regulations. 	(PERB
regulation 	section 	32136.)
In Anaheim Union High 	School District 	(7/17/78) 	PERB 	Order
Ad-42, 	the Board defined 	exactly what 	is meant 	by extraordinary
circumstances: 	"out of the ordinary, 	remarkable, 	unpredictable
situations 	or 	occurrences 	far 	exceeding 	the 	usual 	which 	prevent
a 	timely 	filing." 	In 	that 	case, 	the Board 	sustained 	the
Executive Assistant's 	rejection of 	exceptions 	to 	an
administrative 	law 	judge's 	proposed 	decision 	where 	the
appellant 	argued 	that 	it 	could 	reasonably 	assume 	that
exceptions 	mailed 	on Friday 	in Santa Ana 	would 	arrive 	in
Sacramento 	on Monday.
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Appellant 	maintains 	that 	extraordinary 	circumstances 	exist
in 	the 	instant 	case 	because 	he 	is 	a 	"victim of 	the 	holiday
mails," 	and 	that 	the 	issues 	surrounding 	his 	appeal 	are 	too
important 	to 	the Board2 	"to allow 	the 	operation of 	the U.S.
mail 	to 	impede 	an 	equitable 	resolution." 	We do 	not 	find 	such
an 	explanation 	for 	the 	delay 	to 	constitute 	"extraordinary
circumstances." 	Mail delays 	are ordinary, 	commonly accepted
occurrences 	and, 	therefore, 	will generally not 	serve 	to excuse
a 	late 	filing. 	Anaheim Union High School District, 	supra.
It was 	unreasonable 	for Appellant 	to assume 	that 	the Board
would 	receive 	his 	letter 	requesting 	an 	extension 	on 	the 	same
day 	it was 	mailed 	from Southern California 	to Sacramento.
Charging Party 	had 	an 	opportunity 	to 	submit 	his 	documents
in 	a 	timely manner 	had 	he 	complied 	with PERB 	regulation 	32135
which 	specifies 	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 	United 	States 	mail
postmarked 	not 	later 	than 	the 	last 	day 	set
for 	filing 	and 	addressed 	to 	the 	proper 	PERB
office.
2The 	original 	amended 	charge 	alleged 	a 	violation 	on
HEERA subsections 3571(a), 	(b), 	(c) 	and 	(d) 	because the
University 	allegedly 	refused 	to 	provide 	Charging 	Party
with 	certain 	information he 	had 	requested 	which 	he 	felt 	he
needed 	in order 	to effectively 	represent 	himself 	in
binding 	arbitration proceedings. 	Charging Party 	filed 	the
grievance 	in 	response 	to being 	laid off 	in what 	he 	claimed
was 	a manner 	not 	in 	keeping 	with 	seniority.
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However, 	Charging Party did 	not observe 	these provisions.
Consequently, 	we 	find 	that 	Charging Party 	failed 	to demonstrate
extraordinary 	circumstances 	which 	would 	excuse 	the 	untimely
filing 	of his 	request 	for 	an 	extension of 	time.
ORDER
Tom Jones' 	appeal of 	the PERB Executive Director's
rejection 	of his 	request 	for 	an extension of 	time 	is 	DENIED.
Chairperson Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
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