PERB Order No. A055E•Sacramento City Unified School District (PERB A055E)
Sacramento City Unified School District (PERB A055E)
PERB Order No. A055ECalperb29 de jan. de 1979
Texto completo
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. ) ) ) ) ) ) Case No. S-R-92 PERB Order No. Ad-55 Administrative Appeal January 29, 1979 ) ) ) ) ) ~ ) ) ) ) ) ) ) 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
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