California School Employees Association (Petrich) (PERB 0758E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-339
PERB Decision No. 	758
September 11, 	1989
Appearances: 	Tony Petrich, 	on his own behalf.
Before Porter, 	Craib and Camilli, 	Members.
DECISION
PORTER, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
charging party, 	Tony Petrich, 	to the proposed decision, 	attached
hereto, 	of a PERB administrative law judge 	(ALJ). 	The ALJ
dismissed 	the 	complaint 	because 	the 	charging party 	failed 	to
appear at the 	formal 	hearing on the matter, 	and 	failed to 	show
cause when the ALJ provided him with the 	opportunity to do 	so.
After reviewing the 	entire record, 	including the 	exceptions
filed by the 	charging party, 	we 	find the ALJ's 	findings 	of 	fact
and conclusions 	of 	law to be 	free of prejudicial 	error, 	and we
adopt them as 	the decision of 	the 	Board 	itself.
ORDER
The complaint 	in Case No. 	LA-CO-339 	is hereby DISMISSED.
Members 	Craib and Camilli 	joined 	in this 	Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
V.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
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UNFAIR 	PRACTICE
Case No. 	LA-CO-339
PROPOSED 	DECISION
(7/17/87)
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Appearances: 	Tony Petrich, 	on his own behalf; 	E. 	Luis Saenz,
attorney 	for 	California 	School 	Employees Association.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL HISTORY AND 	FINDINGS OF FACTS
On August 	27, 	1985, 	Tony Petrich 	(hereafter Charging Party)
filed 	this 	unfair 	practice charge 	against 	the California 	School
Employees Association 	(hereafter CSEA). 	The charge alleged
that 	CSEA had 	threatened Petrich 	in 	reprisal 	for 	engaging 	in
protected 	conduct 	and 	that 	CSEA had 	failed 	to 	inform Petrich
about 	a Level 	II 	conference concerning 	a 	grievance 	Petrich had
filed.
On September 22, 	1986, 	the reprisal 	allegation was
dismissed 	and 	a 	complaint was 	issued 	on 	the 	second
allegation. 1
1 The reprisal 	allegation, 	which was 	dismissed, 	was
appealed 	and 	is 	currently awaiting 	decision by the 	Public
Employment Relations 	Board 	(hereafter 	Board).
H
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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An 	informal 	settlement conference was 	scheduled, 	however,
the Charging 	Party 	failed 	to 	appear 	for 	the 	conference.
Shortly thereafter, 	a CSEA motion to dismiss 	the complaint,
based upon 	a 	failure of 	Charging Party to 	state 	a 	prima 	facie
violation, 	was 	denied by the 	administrative 	law judge 	assigned
to 	the 	settlement conference. 2N
A formal hearing was 	scheduled for May 12, 	1987, 	in San
Bernardino, 	California. 	On May 5, 	1987, 	at CSEA's request and
with Charging 	Party's 	concurrence, 	the hearing was 	rescheduled
for May 8, 	1987, 	to be held in Los Angeles.
The hearing commenced on May 8, 	1987, 	and counsel 	for CSEA
appeared 	before 	the undersigned 	fully prepared 	to 	litigate 	the
matter. 	Charging Party failed to 	appear. 	Charging Party did
not 	notify the 	administrative 	law 	judge 	that 	he would not
appear 	nor did he 	seek a 	continuance of 	the hearing. 	Upon
Charging Party's 	failure to 	appear, 	counsel 	for CSEA made 	a
motion 	to 	dismiss 	the complaint because of 	Charging Party's
failure 	to 	proceed with 	the hearing.
On May 12, 	1987, 	Charging Party was ordered to 	show cause
why 	this 	matter 	should 	not 	be dismissed due 	to 	Charging 	Party's
failure 	to 	litigate 	the matter. 	Charging 	Party was 	also
ordered 	to 	show cause why attorney's 	fees 	should 	not 	be 	awarded
to Respondent due 	to Charging Party's 	failure 	to 	appear 	at 	the
hearing.
2 The
motion 	to 	dismiss 	did 	not 	cite Charging 	Party's
failure 	to 	appear 	at 	the 	settlement 	conference 	as 	grounds 	for
dismissal. 2

On June 	1, 	1987, 	Charging Party replied to 	the Order to
Show Cause, 	responding 	only to 	the 	issue of 	attorney's 	fees.
Charging 	Party offered 	no 	response 	to 	the 	issue of 	his 	failure
to 	appear 	at 	the hearing.
DISCUSSION
On two occasions, 	the Board has upheld dismissals 	of unfair
practice 	complaints 	because charging 	parties 	have 	failed 	to
proceed with 	litigation of 	the complaint. 	In 	Service Employees
International Union, Local 99. AFL-CIO (Kimmett) 	(1981) 	PERB
Decision No. 	163, 	the complaint was dismissed when the charging
party failed 	to 	appear 	at 	the hearing. 	In Los Angeles Unified
School District 	(Siamis) 	(1984) 	PERB Decision No. 	464, 	the
complaint was 	dismissed when 	the 	charging 	party 	failed 	to
appear 	for 	the 	sixth day of 	the 	formal 	hearing.
In the case 	at 	hand, 	the Charging Party was 	fully aware of
the time, 	date, 	and 	location of the hearing because he had
concurred 	in 	its 	scheduling only three days 	earlier. 	He did
not 	notify the 	administrative 	law judge 	he would not 	appear 	nor
did he 	seek a continuance of 	the hearing. 	Furthermore, 	when
ordered 	to 	show cause why the 	complaint 	should not 	be
dismissed, 	the Charging 	Party offered no 	explanation 	for 	his
failure to 	proceed.
Charging 	Party's 	failure 	to 	proceed 	and 	his 	inability or
unwillingness 	to 	demonstrate 	any good cause 	for 	that 	failure 	to
proceed constitutes 	an abandonment of 	the complaint. 	This
matter 	should 	therefore 	be 	dismissed.
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Because CSEA has 	not 	asked for 	attorney's 	fees, 	none will
be 	awarded. 	Charging Party should, 	however, 	be 	aware that 	any
future unexcused 	failure 	to 	appear 	at 	either 	an 	informal
settlement 	conference or 	a 	formal 	hearing 	could be 	seen as 	a
pattern of 	engaging 	in frivolous 	litigation. 	This 	could 	lead
to 	an 	assessment 	of 	quantifiable 	costs 	incurred by the
Respondent, 	including 	reasonable attorney's 	fees, 	to offset the
time 	and expenses 	incurred 	in defending 	the 	complaint. 3
PROPOSED ORDER
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Based 	upon 	the 	foregoing 	findings 	and 	conclusions 	and 	the
entire 	record of 	this case, 	the complaint 	is hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a party files 	a 	timely statement of
exceptions with the Board 	itself 	at 	the headquarters 	office 	in
Sacramento within 20 days 	of 	service of 	this Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied upon for 	such exceptions. 	See
3United Professors of California 	(Watts) 	(19 84) 	PERB
Decision No. 	398-H.
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California Administrative Code title 	8, 	part 	III,
section 32300. 	A document 	is 	considered 	"filed" 	when actually-
received before 	the close of 	business 	(5:00 	p.m.) 	on 	the 	last
day set for filing, 	". 	. 	. o r when sent by telegraph or
certified or Express United 	States mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil Procedure 	section 	1013 	shall 	apply. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each copy 	served on 	a 	party or 	filed
with the Board 	itself. 	See California Administrative Code,
title 8, part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	July 17, 	1987 JAMES W. 	TAMM
Administrative 	Law 	Judge
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