Coronado Unified School District (Goodman) (PERB A188E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MILDRED B. 	GOODMAN,
Charging 	Party,
v.
CORONADO UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2771
Administrative Appeal
PERB Order No. 	Ad-188
June 	27, 	1989
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Appearances: 	Mildred B. 	Goodman, 	on her own behalf; 	Brown and
Conradi by Clifford D. 	Weiler, 	Attorney, 	for Coronado Unified
School 	District.
Before Porter, 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	from a denial 	of a
request 	for an extension of 	time 	to 	file 	exceptions 	to 	a proposed
decision of 	a PERB administrative 	law 	judge 	(ALJ). 	A Board agent
denied the request 	for an extension of time, 	for 	failure to 	show
good 	cause why the 	request 	should be 	granted. 	The 	charging
party, 	Mildred Goodman, 	filed a timely appeal of that
determination, 	but 	failed to 	serve 	it on the Coronado 	Unified
School District's 	(District) 	counsel 	in a timely fashion. 	The
original 	request 	for an extension of 	time was 	also not timely
served 	on the District.
PROCEDURAL 	HISTORY
On March 	16, 	1989 	(all dates 	referred to hereafter are 	in
1989), 	the ALJ 	issued a proposed decision dismissing Goodman's
allegations 	that 	the District discriminated against her, 	due to

her union activities, 	by 	failing to reclassify her position to
provide 	an 	increase 	in 	salary. 	The 	District and 	the 	exclusive
representative 	for Goodman's 	bargaining 	unit 	negotiated 	the
reclassification of 	several 	other classifications, 	but the
District would 	not 	agree 	to 	reclassify Goodman's 	Account 	Clerk 	II
classification. 	The ALJ, 	after briefing on the 	issue, 	granted
the 	District's 	motion to dismiss 	at 	the 	end of 	Goodman's 	case-in-
chief.
Goodman 	submitted 	a 	timely 	request 	for 	an 	extension 	of 	time
to 	file her exceptions 	to the proposed decision. 	The request,
dated March 	30, 	stated: 	"My counsel 	is out of town until
April 	10, 	1989 and I 	have no way of contacting said person."
April 	10 was 	the 	filing deadline 	for exceptions. 	The request was
not 	served on the District. 	By letter of April 	3, 	a Board agent
denied 	the 	request 	for 	failure 	to 	show good 	cause why 	it 	should
be granted. 	By letter of April 	13, 	Goodman 	submitted a timely
appeal 	of 	the denial 	of 	an extension of 	time. 	This was 	also not
served on the District. 	By 	letter of April 	19, 	the Board agent
informed 	Goodman that 	her request 	for 	an 	extension of 	time 	and
her appeal 	of 	the denial 	of 	that request must be 	served on
opposing 	counsel 	before 	her appeal 	could be 	forwarded 	to 	the
Board.
By 	letter of April 	24, 	Goodman inquired why this 	matter had
not 	yet been 	forwarded to 	the 	Board 	and demanded 	a prompt
response. 	Included was 	a proof of 	service 	showing that 	she
served her March 	30 	request 	for an extension of 	time 	and her
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April 	13 	appeal on the opposing counsel. 	The proof of 	service
was dated April 	27. 	The District 	filed a response, 	dated May 	1,
which 	indicates 	that 	it received Goodman's 	filings 	on April 	29.
The District 	opposes 	the 	request 	for an extension of 	time based
on Goodman's 	failure 	to 	abide by PERB regulations 	concerning
service 	and on a 	failure to 	show good 	cause 	for the 	request.
On May 	8, 	the 	Board received a 	statement of 	exceptions 	from
Goodman, 	dated May 	5. 	On May 22, 	the Board received a response
from the District, 	dated May 	19. 	On June 	12, 	the Board received
from Goodman a response, 	dated June 	8, 	to the District's May 22
filing. 	As 	the only 	issue 	now before 	the 	Board 	is 	Goodman's
appeal 	of 	the denial 	of 	her request 	for an extension of 	time 	to
file 	exceptions, 	these documents have not been considered 	in
arriving at 	the decision herein.
DISCUSSION
Before 	addressing the merits 	of Goodman's 	appeal 	of 	the
denial of her request for extension of time, 	we must 	first decide
if 	the appeal 	must be 	rejected due 	to defective 	service 	on the
District. 	PERB Regulation 	32132,1 which governs 	extensions 	of
time, 	and Regulation 32360(d), 	which specifies the requirements
for administrative appeals, 	require 	service and proof 	of 	service.
Regulation 32140(b) 	provides that: 	"Whenever 'service' is
required by these regulations, 	service 	shall be on all parties 	to
the proceeding and 	shall 	be 	concurrent with 	the 	filing 	in
1IPERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
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PERB
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question." 	The 	service 	requirements were 	set out 	in both 	the
ALJ's proposed decision and the denial 	of 	the 	request 	for
extension of time. 	In fact, 	the Board agent attached a 	copy of
Regulation 	32140 	to her letter denying the request. 	Therefore,
it 	is 	clear that Goodman was 	expressly 	informed of 	the proper
procedures 	on 	several occasions.
The 	appeal was 	served on the District on April 	27, 	nine days
after the April 	18 	filing deadline. 	On April 	27, 	the District
was 	also 	served 	for the 	first time with the 	original 	request 	for
an extension of 	time, 	which was 	twenty days 	after the 	filing
deadline 	for that document 	(Reg. 	32132(a) 	required 	such a request
to have been filed at least three days prior to the April 	10
deadline 	for 	filing exceptions 	to the proposed decision).
On only a 	few occasions 	has 	the Board addressed 	a 	failure 	to
comply with 	service 	regulations. 	In Manteca Unified 	School
District 	(1977) 	EERB Decision No. 	21,2 the Board rejected an
appeal 	of 	a dismissal 	of 	an unfair practice 	charge because 	the
charging party 	failed to 	serve the appeal 	on the 	respondent. 	In
Los Angeles 	Community College District 	(1984) 	PERB Decision No.
395, 	the 	Board held that 	the 	executive director properly rejected
the 	charging party's 	appeal 	of 	the dismissal 	of his 	charge
because 	it was 	not 	served on the respondent. 	Referring to the
requirement 	that 	an appeal 	be 	served on the 	opposing party, 	the
Board stated, 	at p. 	5: 	"These requirements are not merely
2Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
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ritualistic. 	They are basic 	to providing due process 	to 	the
involved parties."
Twice 	the 	Board has 	excused a 	failure 	to 	serve 	an opposing
party concurrently with the 	filing in question. 	However, 	both
cases 	involved 	exceptional 	circumstances 	not present 	in 	the
instant case and are, 	therefore, 	not controlling.
In Santa Monica-Malibu Unified 	School 	District 	(1987) 	PERB
Order No. 	Ad-163, 	the Board considered a decertification petition
to 	be 	timely 	filed, 	even though 	it was 	not 	actually 	served 	on the
employer 	and 	the 	incumbent 	union until 	two 	days 	after 	they 	signed
a 	tentative agreement. 	In that 	case, 	the petition was 	filed with
PERB 	and 	the 	other parties 	had actual 	notice of 	the 	filing before
the 	tentative 	agreement was 	signed. 	The 	Board 	found 	that 	there
was 	no prejudice 	from the delay 	in 	formal 	notice 	of 	the petition.
In San Diego Community College 	District 	(1988) 	PERB 	Decision
No. 	662, 	the Board found an unfair practice charge to be timely
where 	it was 	filed but not 	served within the 	six-month 	statute 	of
limitations 	contained 	in EERA 	section 	3541.5, 	subdivision
(a)(l).3 	The respondent did receive notice of the charge 	shortly
thereafter 	and no prejudice 	from the delayed notice was 	shown.
The 	result 	in San Diego was 	based not 	only on the 	lack of
prejudice 	shown, 	but also on the 	fact that the 	six-month 	statute
of 	limitations 	contained 	in the 	statute 	states 	only that 	the
"filing" 	must be within 	six months 	of 	the 	conduct 	complained 	of,
3The 	San Diego 	case 	is 	now on appeal 	before 	Division One 	of
the Court of Appeal, 	Fourth Appellate District, 	Civ. 	No. 	D009280,
and the 	service 	issue 	is 	one of 	the matters 	in dispute.
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and 	is 	silent on 	service requirements. 	The Board was wary of
exceeding 	its 	authority by 	construing 	its 	regulations 	in a
fashion 	that would 	effectively 	add 	a 	strict 	filing 	requirement
not contained in the 	statute. 	Moreover, 	though the proof 	of
service 	attached to 	the 	amended 	charge 	in the 	San Diego 	case was
technically deficient because 	it did not 	reflect 	service 	on the
district, 	a cover memo to PERB 	stated that the district was 	being
sent 	a 	copy 	simultaneously with 	the 	filing.
We 	find that the Los Angeles 	and Manteca 	cases 	are the 	most
instructive and, 	therefore, 	conclude that Goodman's 	failure to
serve the District 	in a 	timely 	fashion is 	fatal 	to her appeal.
Where, 	as here, 	there are no extraordinary circumstances which
compel 	a different result, 	we will 	not 	excuse a 	failure to timely
serve 	an appeal 	upon an opposing party. 	While 	this 	result may
seem harsh, 	we 	cannot accept the appeal 	in these 	circumstances
without 	making a 	mockery 	of 	the 	concurrent 	service 	requirement 	of
Regulation 32140(b). 	We 	stress 	that Goodman was made aware of
that requirement on several occasions but, 	nevertheless, 	failed
to 	follow the proper procedures.
Assuming 	arguendo 	that we were 	to 	accept Goodman's 	appeal
and 	address 	the merits 	of 	the denial 	of 	the 	request 	for extension
of 	time, 	we would affirm that denial. 	Goodman's 	stated reason
for her request 	for an extension of 	time was 	that 	counsel was 	out
of 	town until 	the 	last day 	for 	filing 	exceptions 	to 	the ALJ's
proposed decision. 	No 	further details 	about 	the 	counsel's
unavailability were provided. 	The 	unavailability 	of 	counsel
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would, 	in some circumstances, 	constitute 	"good cause" 	for the
granting of an extension of time. 	However, 	in this case, 	Goodman
has 	failed to provide enough 	information to allow us 	to make 	that
determination. 	A general 	assertion of 	the 	unavailability of
counsel 	is 	insufficient.
ORDER
The 	complaint in Case No. 	LA-CE-2771 	is hereby DISMISSED.
Member Camilli 	joined in this 	Decision.
Member Porter's 	dissent begins 	on page 	8.
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Porter, 	Member, 	dissenting: 	I disagree with my colleagues'
rejection of Mildred B. 	Goodman's 	appeal 	on the ground of
defective service. 	Further, 	viewing the merits of the appeal, 	I
would reverse the denial 	of 	the 	request 	for 	extension of 	time,
contrary 	to 	the majority's 	dicta 	stating 	that denial was 	the
appropriate resolution in this 	case.
As 	to 	the 	issue 	of 	defective 	service on Coronado Unified
School District 	(District), 	it must be noted that the Public
Employment Relations 	Board's 	(Board) 	regulations 	governing
service 	and proof 	of 	service 	are directory, 	rather than
jurisdictional, 	in nature. 	This 	Board has previously excused
a party's 	failure 	to 	concurrently 	serve 	an opposing party 	at
the 	time 	of 	filing where no prejudice 	to 	the opposing party was
demonstrated. 	(See, 	Santa Monica-Malibu Unified School 	District
(1987) 	PERB Order No. 	Ad-163, 	p. 	2; 	San Diego Community College
District 	(1988) 	PERB Decision No. 	662, 	pp. 	12-13.1) 	In the
present 	case, 	the District has 	shown no prejudice resulting
from the 	late 	service of the timely appeal by Goodman. 	Moreover,
it 	is 	a well-established principle 	of 	California 	law that the
preservation of the right to appeal 	and the hearing of 	appeals 	on
their merits, 	are favored. 	(See, 	e.g., 	City of Santa Barbara v.
California 	Coastal 	Zone 	Conservation Commission 	(1977)
75 Cal.App.3d 572, 	581; 	Gibson v. 	Unemployment Insurance Appeals
Board 	(1973) 	9 Cal.3d 494, 	499; 	Pesce v. 	Department of Alcohol
Beverage Control 	(1958) 	51 Cal.2d 310, 	313.) 	Taken together,
1See footnote 	3 	at page 5, 	majority opinion.
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these 	factors 	dictate 	excusing 	the 	late 	service 	on the 	District
herein.
As to the merits of Goodman's appeal, 	that is, 	the issue of
whether 	the 	requested extension of 	time 	should 	have 	been 	granted,
I would 	likewise 	find 	in Goodman's 	favor. 	In her timely-filed
request, 	Goodman asserted that her 	counsel was 	unavailable until
the 	last day 	for 	filing 	exceptions. 	The 	request was 	denied by
the Board agent 	solely for a 	lack of 	a 	showing of 	"good 	cause,"
without 	any reference to 	the defective 	service 	at that 	stage 	of
the matter. 	The Board's 	regulation regarding 	such requests2
instructs 	the party to 	"indicate 	the 	reason," 	and does 	not
require 	a 	statement made under oath by the 	requesting party, 	nor
does 	it 	require elaborate detail 	in support of the request. 	On
its 	face, 	Goodman's 	simple assertion that 	she wanted an extension
of 	time 	in order to 	consult with her attorney who was 	out 	of
town, 	which indeed 	"indicate(s) 	the reason for the request,"
constitutes 	"good 	cause" 	sufficient 	to 	allow this 	Board to
grant the extension. 	Accordingly, 	I would grant the requested
extension of 	time 	for 	filing 	exceptions 	in this 	case.
2Regulation 32132(a) 	states:
A request 	for 	an 	extension of 	time within
which 	to 	file 	any document with the Board
itself 	shall be 	in writing and 	shall 	be
filed at the headquarters 	office 	at 	least
three days 	before 	the 	expiration of 	the
time required 	for 	filing. 	The 	request 	shall
indicate the reason for the request and, 	if
known, 	the position of each other party
regarding the 	extension. 	Service 	and proof
of 	service pursuant to 	section 	32140 	are
required. 	Extensions 	of 	time may be granted
by 	the 	Board 	itself 	or 	an agent designated
by 	the 	Board 	itself 	for 	good 	cause 	only.
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