Los Angeles Unified School District (Wightman) (PERB A155E)

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BA te 5

a DECISION ‘OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

Case Nos. LA-CE-1736
LA-CE=-1765
LA-CE~1767
LA-CE~1769
LA-CE-1771
LA-CE-1773
LA-CE-1774
LA-CE-1781

VICTOR WIGHTMAN,
Charging Party,
Vv.

LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Respondent. Administrative Appeal

PERB Order No. Ad-155

er ee es ee as ee as fe a te ee

June 24, 1986

Appearances: Victor Wightman and Jules Kimmett for Victor
Wightman; O'Melveny & Myers by Elaine M. Lustig for Los Angeles
Unified School District.

Before Hesse, Chairperson: Burt and Porter, Members.
. DECISION

HESSE, Chairperson: Victor Wightman appeals the rejection
of his statement of exceptions to a proposed decision and his
request for oral argument. His exceptions and request for oral
argument were rejected by the assistant executive director of
the Public Employment Relations Board (PERB or Board) as being
untimely filed. For the reasons set forth below, we reverse the
dismissal and accept Wightman's statement of exceptions and
request for oral argument as timely filed.

PROCEDURAL HISTORY

On July 26, 1985, a proposed decision was issued and served

on the parties in the above-entitled case. Pursuant to PERB

Regulation
	32300,
1
exceptions
	were 	due
	20
	days
	later
	on
August
	15,
	1985.
	Wightman
	mailed
	his
2
statement 	of 	exceptions
on
	August
	13
	by
	first-class
	mail.
	The
	exceptions
	were
	received
by
	PERB
	on
	August
	16,
	1985.
	On
	August
	19,
	the
	assistant
executive
	director 	rejected
	Wightman's
	filings.
	Wightman's
appeal
	of
	this
	administrative 	decision
	was
	timely
	filed
	on
August
	28, 	1985.
DISCUSSION
Exceptions
	to
	this
	proposed
	decision
	were
	to
	be
	filed
	with
the
	Board
	itself
	within
	20
	days
	following
	service
	of
	the
decision.
	Thus,
	the
	last
	date 	for
	filing
	exceptions
	to 	the
proposed
	decision
	was
	August 	15, 	1985.
	PERB
	Regulation
	32135
provides
	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
	Express 	United
	States
mail 	postmarked 	not
	later
	than 	the
	last
	day
lpERB
	Regulations 	are 	codified
	at 	California 	Administrative
Code,
	title
	8,
	section
	31001
	et
	seq.
Regulation
	32300
	provides, 	in 	relevant 	part:
(a)
	A
party
	may
	file
	with 	the
	Board
	itself
an
	original
	and
	five 	copies 	of
	a
	statement
of 	exceptions 	to
	a
	Board
	agent's
	proposed
decision 	issued 	pursuant 	to 	section
	32215,
and
	supporting
	brief,
	within
	20
	days 	following
the 	date 	of 	service 	of 	the 	decision 	or 	as
provided 	in 	section
	32310.
	The
	statement 	of
exceptions
	and
	briefs 	shall
	be
	filed
	with 	theBoard
	itself
	in 	the 	headquarters 	office.
2The 	Los 	Angeles 	Unified 	School
	District 	(District) 	did
not
	file
	any 	exceptions.
2

set
	for
	filing
	and
	addressed
	to
	the 	proper
PERB
	office.
Although
	Wightman's
	statement 	of 	exceptions
	and
	request 	for
oral
	argument
	were
	postmarked
	August
	13,
	the
	documents
	were
	not
received
	by
	PERB
	until
	August
	16.
	Since
	he
	did
	not
	send
	the
documents 	by
	telegraph
	or
	certified
	mail,
	his
	documents 	were
	not
timely
	filed.
Late
	filings
	may
	be
	excused,
	however,
	where
	extraordinary
c1rcums
	ances
	prevent
	time
	y
	f'l"
ng.
3	. 	t 	. 	1 	1
	1	
In
	Anaheim
	Union 	High
School
	District
	(1978)
	PERB
	Order
	No.
	Ad-42,
	the
	Board
	held
	that,
since
	mail 	delays
	were
	ordinary,
	commonly-accepted
	occurrences,
they
	generally 	will
	not 	serve
	to
	excuse
	a
	late 	filing.
	We
	find
nothing 	in
	this
	case
	to
	warrant
	a
	finding 	of
	extraordinary
circumstances.
Under
	section
	1013
	of 	the
	California
	Code
	of
	Civil
	Procedure
(CCP),
4
where
	agency 	documents
	are 	served
	on
	parties
	by
	mail,
3Regulation
	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.
4ccp
	section
	1013
	provides, 	in 	pertinent 	part:
(a) 	In 	case 	of 	service
	by
	mail,
	•.•
	The
service 	is
	complete
	at
	the 	time
	of 	the
deposit, 	but
	any
	prescribed 	period 	of 	notice
and 	any
	right 	or 	duty 	to
	do 	any
	act 	or
	make
any 	response 	within
	any
	prescribed 	period 	oron
	a
	date 	certain 	after
	the 	service 	of 	such
document 	served 	by 	mail
	shall
	be 	extended
five 	days
	if
	the 	place 	of 	address 	is 	within
the 	State 	of 	California,
	...
	but 	such
3

the 	period 	for 	responding 	is 	extended 	by 	five 	days. 	Previously,
Regulation 	32140(b) 	provided 	that 	this 	section 	would 	not 	apply
to 	PERB 	procedures. 	However, 	that 	Regulation 	has 	since 	been
repealed. 5 Also, 	as 	the 	Board 	discussed 	in 	Lake 	Elsinore
School 	District 	(1986) 	PERB 	Order 	No. 	Ad-154, 	Regulation
32140(b) 	was 	invalid. 6
The 	Board 	agent's 	proposed 	decision 	was 	served 	on 	the
parties 	by 	mail. 	Although 	Regulation 	32140(b) 	was 	in 	effect 	in
July 	and 	August 	1985, 	we 	find 	that 	it 	is 	more 	equitable 	that 	its
repeal 	should 	be 	applied 	to 	cases 	that 	are 	now 	before 	the 	Board.
Thus, 	the 	time 	period 	for 	filing 	exceptions 	in 	this 	case 	was
extended 	to 	August 	20, 	1985. 	As 	Wightman's 	exceptions 	were
received 	by 	PERB 	on 	August 	16, 	1985, 	they 	were 	timely 	filed.
Accordingly, 	we 	reverse 	the 	assistant 	executive 	director's
decision 	and 	will 	entertain 	Wightman's 	exceptions 	and 	request
for 	oral 	argument.
Pursuant 	to 	Regulation 	32310, 	the 	District 	will 	have 	20
days 	from 	the 	date 	of 	service 	of 	this 	Decision 	to 	respond 	to
extension 	shall 	not 	apply 	to 	extend 	the 	time
for 	filing 	notice 	of 	intention 	to 	move 	for 	a
new 	trial, 	notice 	of 	intention 	to 	move 	to
vacate 	judgment 	pursuant 	to 	Section 	663a 	of
this 	code 	or 	notice 	of 	appeal.
SRegulation 	32140(b), 	repealed 	on 	May 	27, 	1986, 	provided
that: 	"That 	portion 	of 	section 	1013 	of 	the 	Code 	of 	Civil
Procedure 	relating 	to 	extending 	time 	after 	mailing 	shall 	not
apply."
6For 	the 	Board's 	rationale, 	see 	Lake 	Elsinore 	School
District, 	supra, 	at 	p. 	5.
4

Wightman's
	exceptions.
7
We
	note
	that
	the
	District
	did
	not
file
	exceptions 	within 	the
	allotted
	time. 	Nevertheless,
Regulation
	32310
	provides
	that
	the 	response
	may
	contain
	a
statement
	of
	exceptions.
ORDER
The
	decision
	of 	the
	assistant
	executive
	director 	is
	REVERSED.
The
	executive
	director 	is
	hereby
	ORDERED
	to
	accept
	as
	timely
filed
	Victor
	Wightman's
	Statement 	of 	Exceptions
	and
	Demand
	for
Oral
	Argument.
	The
	District
	may
	file
	a
	response
	and
	supporting
brief
	within
	20
	days
	after
	service
	of
	this
	Decision.
Members
	Burt
	and
	Porter
	joined 	in
	this
	Decision.
?Regulation
	32310
	reads 	as 	follows:
Response
	to 	Exceptions. 	Within
	20
	days
following 	the 	date 	of
	service 	of 	the
statement 	of 	exceptions,
	any
	party
	may
	file
with 	the
	Board
	itself
	an
	original
	and
	five
copies 	of
	a
	response 	to 	the 	statement 	of
exceptions
	and
	a
	supporting
	brief.
	The
response
	shall
	be
	filed
	with 	the
	Board
itself
	in 	the 	headquarters
	office.
	The
response
	may
	contain
	a
	statement 	of
	any
exceptions 	the 	responding
	party
	wishes
	to
take 	to 	the
	recommended
	decision.
	Any
	such
statement 	of 	exceptions
	shall
	comply
	in
	form
with 	the 	requirements 	of 	section
	32300.
	A
response 	to
	such 	exceptions
	may
	be
	filed
within
	20
	days.
	Such
	response
	shall
	comply
in
	form
	with 	the 	provisions 	of 	thissection. 	Service
	and 	proof 	of 	service 	of
these
	documents 	pursuant 	to 	section
	32140
are 	required.
5

L.