PERB Decision No. 0464E•Los Angeles Unified School District (PERB 0464E)
Los Angeles Unified School District (PERB 0464E)
PERB Decision No. 0464ECalperb18.12.1984
Gesamter Gesetzestext
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD GUST SIAMIS, Charging Party, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) _____________________ ) Case No. LA-CE-1163 PERB Decision No. 464 December 18, 1984 Appearances: Gust Siamis, on his own behalf; O'Melveny & Myers, by Richard N. Fisher and Joel M. Grossman for the Los Angeles Unified School District. Before Hesse, Chairperson; Jaeger and Morgenstern, Members. DECISION HESSE, Chairperson: Gust Siamis appeals the attached proposed decision of a Public Employment Relations Board administrative law judge granting the respondent's motion to dismiss his charge alleging a violation of section 3543.S(a) of the Educational Employment Relations Act. We have reviewed the hearing officer's decision in light of the appeal and, finding it free from prejudicial error, adopt it as the decision of the Board itself. ORDER The unfair practice charge and complaint in Case No. LA-CE-1163 are DISMISSED WITHOUT LEAVE TO AMEND. Members Jaeger and Morgenstern joined in this Decision.
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD GUST SIAMIS, Charging Party, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ____________________ ) Unfair Practice Case No. LA-CE-1163 PROPOSED DECISION (3/8/84) Appearances: Gust Siamis, on behalf of himself; Joel Grossman, Esq. (O'Melveny & Myers), for the Los Angeles Unified School District. Before Barbara E. Miller, Administrative Law Judge. I. PROCEDURAL HISTORY A. The Board's Decision On May 20, 1983, the Public Employment Relations Board (hereinafter PERB or Board) issued its Decision in Los Angeles Unified School District (5/20/83) PERB Decision No. 311, and remanded the instant case to the General Counsel for further processing consistent with its Decision.I In that Decision, the Board reversed the Proposed Decision of the Administrative Law Judge and held that the Unfair Practice Charge filed by lDecision No. 311 concerned four cases which had been consolidated for the formal hearing. In its decision, the dismissal of the other three cases was sustained. Recently, in Los Angeles Unified School District (2/23/84) PERB Decision No. 311a, the Board denied a request for_reconsideration.
Gust Siamis (hereinafter Mr. Siamis or Charging Party) was not barred by the statute of limitations provision set forth in subsection 3541.S(a) of the Educational Employment Relations Act (hereinafter EERA) .2 B. The Case on Remand Subsequent to the issuance of the PERB Decision No. 311, this case was transferred to the Office of Administrative Law and an Informal Conference was scheduled and held on August 19, 1983, before Administrative Law Judge W. Jean Thomas. The parties were unable to resolve their differences and the case was set for formal hearing. Before commencing the formal hearing, a Pre-hearing Conference was held on September 14, 1983. At that time, the parties set forth their respective positions and were advised of the rules which would govern the conduct of the hearing. The parties were advised and agreed that the issue to be decided was whether Mr. Siamis received an unsatisfactory evaluation and was transferred from the Union Avenue Elementary School because he engaged in protected activity. Mr. Siamis was advised that he might be required to first present evidence that he engaged in protected activity, next that the District knew of that activity, and then, and only then, evidence 2The EERA is codified beginning at Government Code section 3540, et seq. Unless otherwise indicated, all statutory references are to the Government Code. 2
regarding the alleged inaccuracies or improprieties in the unsatisfactory evaluation itself. Subsequently, by letter dated September 15, 1983, Mr. Siamis was advised that he would indeed be required to present his evidence in that order. During the course of the Pre-hearing Conference, the District filed a Motion to Dismiss the case on the grounds that the District, by way of settlement, had offered to provide Mr. Siamis essentially all the relief he would receive if he were to prevail in the evidentiary hearing. The District's Motion to Dismiss was taken under submission. On the first date set for hearing, September 26, 1983, in order to evaluate whether the District was indeed offering to provide Mr. Siamis with all the affirmative relief he might gain from PERB, he was asked to clarify the remedy he sought. Mr. Siamis made it clear that he wanted the following remedies: (1) removal from his personnel file of any derogatory material relating to the Notice of Unsatisfactory Service; (2) the option of transferring back to the school where he had served prior to receipt of the Notice; and (3) a finding that the District was guilty of discriminating against him. The District indicated that it would remove all the material from Mr. Siamis' file and that it would post a notice that it would not discriminate against Mr. Siamis or other employees because of their exercise of protected rights. In 3
other respects, the District would not acquiesce in Mr. Siamis' demands and, accordingly, the Motion to Dismiss was denied.3 The formal hearing was conducted on September 26, 27, and 28, 1983. It was scheduled to reconvene on several dates thereafter. However, as set forth in greater detail in Section II, Findings of Fact Relevant to the Conduct of the Hearing, infra, the case did not proceed as scheduled. On November 22, 1983, the parties were sent a letter notifying them that after the Administrative Law Judge received the transcript of the proceedings, Mr. Siamis could file a brief or position paper showing cause why the case should not be dismissed; the Respondent would also have an opportunity to submit written support for its position. The Charging Party did not avail himself of the opportunity to show cause why the case should not be dismissed. A letter setting forth Respondent's position was timely filed and received on February 8, 1984, at which time the case was submitted for decision. II. FINDINGS OF FACT RELEVANT TO THE CONDUCT OF THE HEARING The formal hearing convened on September 26, 1983. Despite some difficulty with the Charging Party's identification of his 3Neither the rules of the Board nor its decisions provide guidance regarding under what circumstances, if any, an Administrative Law Judge may accept a settlement and dismiss the charge over the objection of the Charging Party. 4
exhibits and some dispute regarding the Charging Party's presentation of evidence, the case proceeded, although not always in an orderly fashion. The Charging Party called Dolores Renari, the Principal of Union Avenue Elementary School, and William J. Sharp, the District's former Superintendent in charge of the Office of Staff Relations. The hearing reconvened on September 27 and Mr. Siamis recalled Dolores Renari and also called Robert E. Searle, who had served as the Director of the Teacher Integration Unit for the District in the school year 1978-1979. On September 28, Mr. Siamis called Sidney A. Thompson to testify regarding events which occurred when he was the Principal of Crenshaw High School in 1974. Mr. Siamis also called Barbara E. LaBranch, who is a Coordinator, Staff Relations, for the District, and Theodore F. Johnson, a teacher at Union Avenue Elementary School when Mr. Siamis received his Notice of Unsatisfactory Service. The hearing did not conclude on September 28, 1983, but at the close of that day it was continued to October 24, 25, and 26. At the close of the hearing on September 28, 1983, the undersigned issued an Order regarding the October hearing. That verbal order was confirmed by a written Order dated September 29, 1983, which provided as follows: 1. The Charging Party will provide a complete package of his exhibits for the witnesses; 5
2. The Charging Party will have a list of his exhibits or be sufficiently familiar with them so that he can refer to them by their designated numbers during the examination of witnesses; 3. Any subpoenas to be requested by either party will be submitted to the Los Angeles Regional Office of the Public Employment Relations Board no later than 5:00 p.m. on October 12, 1983; 4. Any subpoenas to be served by either party will be served no later than October 17, 1983; 5. If the Respondent intends to move to quash any subpoena, a reasonable effort will be made to notify the undersigned no later than October 20, 1983; 6. The Charging Party will notify the undersigned and the Respondent of the witnesses he intends to call and the order of such witnesses no later than October 20, 1983; and 7. When the hearing commences, the Charging Party must be prepared to examine his witnesses; no delays or continuances for further preparation will be allowed. [Emphasis added.] On October 13, 1983, the Board itself received a document from Mr. Siamis entitled: Appeal of Hearing Officer's (Miller) continuance, 3 day Hearings on Motion(s) (other than the Unfair - as remanded by The Board) and Rulings on Interlocutory Matters; Request for Continuance Date Extension until said Matters are Ruled Upon and Clearly defined in writing prior to re-convening; & Request for Hearing Officer MILLER replacement with other than a Los Angeles based or Smith, designee; and Motions. After citing his numerous objections to the conduct of the hearing, Mr. Siamis made the following motions: 6
Motion 1 Mr. Siamis Motions that Grossman
be ordered to attempt to quash any subpoenas
3 days after first filed with PERB, unless
improperly served by Siamis.
Motion 2 GS moves that H.O. Miller Declare
what step ••• the Hearing has now reached
so that Siamis can prepare his case & proper
witnesses in order.
Motion 3 Mr. Joel Grossman be held in
contempt for: {a) Failure to comply with
PERB 32646 in obtaining surprise dismissal,
{b) Failure to give Mr. Siamis advance
notice of his intended non-compliance with
Siamis pre-trial courtesy letter of 6/4/81
re: LA CE 1163.
Motion 4 and Request - that H. Officer
Miller be replaced with a Board member, or
some designee {not biased to O'Melveny &
Myers nor the LAUSD size/"stature") other
than a member of the LA Region {sic) Office
or a designee of W.P. Smith.
Motion 5 That the Reconvening Date of
10/24/83 & subpoena order dates be suspended
until the Matters cited herein are resolved,
ruled upon, & defined in writing so as to
allow the Plaintiff his right to establish
proof of guilt as per 32178 and 3543.5
without disruption.
On October 12, 1983, the undersigned communicated with the
parties, indicating the disposition of Mr. Siamis' "Appeal." A
letter of that date stated:
To the extent the Appeal is filed pursuant
to California Administrative Code, title 8,
part III, section 32200, I do not join in.
the charging party's request that the Board
itself rule on matters raised in the
Appeal. I cannot join in the request
because pursuant to the requirements of
section 32200, the issues involved are not
ones of law, the issues involved are not
controlling in the case and, an immediate
7appeal will not materially advance the resolution of the case. To the extent that the Appeal is construed as a request for disqualification pursuant to California Administrative Code, title 8, part III, section 32155, the request is denied. The request is denied because my continuing to sit as the Administrative Law Judge does not conflict with any of the provisions of section 32155(a) (1)-(4). Moreover, I know of no facts which would otherwise require disqualification and have no reason to believe that the charging party cannot receive fair and impartial consideration of the case now pending ••• Given the rulings set forth herein, the formal hearing will go forward on October 24, 1983 at 9:00 a.m. and all orders pertaining to the hearing are still in effect. The hearing did reconvene on October 24, 1983. On that date Mr. Siamis resumed his examination of Dolores Renari, whose testimony had been interrupted to accommodate her schedule and that of other witnesses. Mr. Siamis also called Remedus L. Altar, and he recalled Theodore F. Johnson. On October 25, Dolores Renari was recalled, examined, cross-examined and excused. On that date Evert E. Anderson testified as did Frank I. Kampelman and Lora Drogin. On October 25, in an effort to conclude with the witnesses who had been waiting several hours, the hearing proceeded until approximately 9:00 p.m., at which time it was adjourned until 10:00 a.m. the next day. On October 26, at 9:50 a.m., Mr. Siamis telephoned the Los Angeles Regional Office of the Public Employment Relations 8
Board and spoke with Ethel Balkin, a senior legal secretary. Mr. Siamis informed Ms. Balkin that he would not be attending the hearing and that the undersigned was not to contact him by telephone either at his school or at his home and that all communications should be in writing. Mr. Siamis further indicated, however, that he would try to reach the Administrative Law Judge later that day. Mr. Siamis did telephone the office at 10:00 a.m. and spoke with the undersigned. He again indicated that he did not intend to appear, he offered no explanation for his failure to appear, and he declined to answer questions as to whether he was requesting a continuance. When the phone conversation with Mr. Siamis concluded, the Respondent was present as was Joan Humphrey, the witness Mr. Siamis had requested who was voluntarily produced by the District. The Respondent was advised by the undersigned, on the record, that Mr. Siamis would not attend the hearing, but he would be given one final opportunity to indicate whether he wished to proceed with his case. The Respondent made an oral motion for dismissal, which subsequently was submitted in writing and denied. After the hearing adjourned, the undersigned sent Mr. Siamis a letter outlining the events of the day and which then stated as follows: Notwithstanding your unexplained failure to proceed at the date and time scheduled for 9
the hearing, you are being given one final opportunity to indicate if you wish to put on any further evidence in support of your affirmative case. A form upon which you should indicate your intentions is enclosed and must be received in this office not later than 5:00 p.m. on November 2, 1983. If you do not return the form, or if you return the form with the "no" box checked, I will conclude that you have elected not to put on any additional evidence in support of your affirmative case and that you have rested your case. On November 1, 1983, the Los Angeles Regional Office received from Mr. Siamis the form described above. Mr. Siamis checked the box indicating that he was requesting that the formal hearing be reconvened at the earliest possible date so that he could put on additional evidence in support of his affirmative case, but he qualified that statement with the following: While I have several more witnesses to present, in light of what appears to be extreme rigid limitations on witnesses & their testimony, harassment, bias, and an excessive use of technical court language~ techniques to create disruption of my case, I will rest my case, UNLESS Mr. Grossman has a case he intends to present. IF SO, then I shall be available, but I must then first be allowed to continue and complete my case prior to his. After receiving Mr. Siamis' communication, the undersigned contacted Mr. Grossman who indicated that, although he had not received a copy of Mr. Siamis' communication, the Respondent would rest and not put on evidence if Mr. Siamis rested. That conversation was commemorated by a subsequent letter. 10
Notwithstanding the position of the parties, on November 2, 1983, the undersigned sent a letter to Mr. Siamis, which stated as follows: As I understand your communication of October 28, 1983, you have additional evidence and wish to present additional evidence in support of your affirmative case. However, because of your expressed dissatisfaction with the conduct of the hearing, you are prepared to waive the right I have granted you to present additional evidence if the Respondent will waive its right to present rebuttal evidence to the case you have presented thus far. The Respondent has advised me by telephone, to be followed by a letter, that it is prepared to waive its right. Accordingly. based upon your communication, I could find that you have rested your case. Nevertheless, I am reluctant to make that finding before again reassuring you that I know of no reason why you will not have fair and impartial consideration of your case if you elect to proceed. Therefore, please advise me by telephone or in writing, not later than 5:00 p.m. on November 9, 1983, whether or not you are waiving your right to proceed with the hearing. If you elect to waive that right, I will close the record and advise the parties of the deadlines for the filing of post-hearing briefs. If you elect to exercise the right to proceed, the hearing will be reconvened on November 15, 1983, along lines consistent with the attached Notice. In order to avoid any further delay in the processing of the instant case, a Notice of Hearing Reconvened and Orders was sent to the parties on November 2, 1983. That Notice provided as follows: For purposes of the reconvened hearing, the following rules, in addition to those previously set forth shall apply. 11
1. The Charging Party must be prepared to call his first witness at 9:00 a.m. when the hearing reconvenes; 2. Any subpoenas to be issued should be submitted to this office so as to allow reasonable time for service on the parties to be subpoenaed and to provide the District with reasonable time to make substitutions, if necessary; 3. Respondent will be informed of the order in which witnesses will be called no later than November 10, 1983, so that the Respondent can make arrangement for those witnesses, who~ subject to previous agreements, will appear without being subpoenaed. 4. Absent extraordinary circumstances, no further continuances or delays will be allowed. [Emphasis added.] Late in the afternoon of November 9, 1983, Mr. Siamis contacted the undersigned and indicated that he wanted to go ahead with the hearing and agreed that he would appear at 9:00 a.m. on November 15, 1983. During the course of the conversation, Mr. Siamis indicated that he wanted to call as his witnesses Dolores Renari, Howard Russell, and himself. Mr. Siamis was advised that he had already called Ms. Renari, that she had been examined, cross-examined and excused. Mr. Siamis indicated that he wished to call her again in light of the testimony of Lora Drogin during the formal hearing conducted on October 25, 1983. Since the testimony given was in response to questions asked by the undersigned, Mr. Siamis was advised that he would be allowed to recall Ms. Renari for 12
that limited purpose only and that his next witness should be available at 9:30 a.m. on November 15, 1983. The next day, on November 10, 1983, the District advised the undersigned that Ms. Renari was not available on November 15, and could not be produced for the hearing. When this information was communicated to Mr. Siamis he indicated that he would not attend the hearing. Mr. Siamis was advised that Ms. Renari could be called on another day, if necessary, and that the hearing would proceed at 9:00 a.m. on November 15, 1983. Despite Mr. Siamis' insistence that there would be no hearing without Ms. Renari, that he would not take the witness stand until all her testimony had been concluded, and that the Administrative Law Judge would have to select a different date for the hearing, Mr. Siamis was advised repeatedly during the course of three phone conversations that he was required to appear at 9:00 a.m. on November 15, 1983. On November 15, Mr. Siamis failed to attend the hearing. The Respondent appeared and moved to dismiss the case for the Charging Party's failure to proceed. The Respondent was advised that the Administrative Law Judge would consider whether or not to reach the merits of the case and notify the parties. Dates were established for the filing of post-hearing briefs and the hearing was adjourned. On November 22, 1983, a letter was sent to Mr. Siamis advising him that the undersigned did not intend to reach the 13
merits of his case and intended to dismiss the case because of his failure to proceed. He was advised, however, that he would be given 40 days after the receipt of the transcript by the Administrative Law Judge to file a brief or position paper showing cause why the case should not be dismissed. III. CONCLUSIONS OF LAW In Service Employees International Union, Local 99, AFL-CIO (5/18181) PERB Decision No. 163, the Board upheld the dismissal of an Unfair Practice Charge under circumstances similar to those presented in the instant case. In that case, the charging party first failed to appear on a scheduled day of hearing because he insisted that the case set for hearing could not be heard until a charge he had subsequently filed was disposed of. Over objections from the respondent union, the Administrative Law Judge refused to dismiss the Complaint. Subsequently, the case was rescheduled for hearing and the Administrative Law Judge cautioned both parties that sanctions would be imposed if either failed to appear. When the charging party failed to appear for the hearing, the union moved to dismiss the case and the motion was granted. Although the present case is not identical to Service Employees International Union, et al., the cases are sufficiently similar to warrant dismissal. In addition to the Board's Decision, support for granting the Respondent's Motion to Dismiss is found in the Board's 14
Rules and Regulations. Section 32170, California Administrative Code, title 8, part III, provides that "[t]he Board agent conducting a hearing shall have the powers and duties to: ••• (d) regulate the course and conduct of the hearing II Throughout the course of the hearing of the instant case, the Charging Party tried to usurp the control properly vested in the Administrative Law Judge. In regulating the course and conduct of the hearing, it is often necessary to take witnesses out of order, or to require that the Charging Party first prove certain elements of the offense alleged. Moreover, once a case is set for hearing, neither party can unilaterally determine that the date is inappropriate or that he doesn't like certain procedural rulings and therefore fail to appear. By his unjustified failure to appear on two days of scheduled hearing, Mr. Siamis prevented the presentation of his case in addition to inconveniencing his own witnesses and the District. In exercising the discretion vested in the Administrative Law Judge, in order to regulate the conduct of the hearing, it is determined that dismissal is the appropriate result. In addition, in both instances when he failed to appear, the Charging Party failed to comply with section 32205 of the Board's Rules and Regulations. That section provides as follows: Continuances. A party may file a request for a continuance of the formal hearing no 15
later than five days before the hearing. The request shall be in writing, signed by the party or its agent, state the grounds for the request, and state the position of each party regarding the request. An oral request or a request for continuance submitted less than five days prior to the hearing may be made only under unusual circumstances. A request for a continuance shall be granted only under unusual circumstances and if the other party will not be prejudiced thereby. On October 26 Mr. Siamis did not request a continuance and refused to respond to inquiries from the undersigned as to whether he wanted a continuance. With respect to the hearing scheduled for November 15, even if one construes the Charging Party's verbal protest to the hearing date as a request for a continuance, grounds for a continuance did not exist and the Charging Party was expressly told that a continuance would not be granted. The Charging Party objected to the hearing date and requested a continuance because Dolores Renari would not be available on the scheduled hearing date. Because she was not available "as ordered by" the Charging Party, Mr. Siamis complained that the hearing might take two days rather than one and he objected to taking the witness stand himself before Ms. Renari had concluded all of her testimony. The position of the Charging Party was patently unreasonable and did not constitute grounds for a continuance. Ms. Renari had already testified during four days of the hearing and she had been excused. Mr. Siamis was told that he 16
could recall her for the limited purpose of asking her questions pertaining to some testimony elicited by the Administrative Law Judge from Lora Drogin on the last day of the hearing. For that purpose, Ms. Renari was not essential at that juncture in the Charging Party's case. Moreover, given that Mr. Siamis had already spent five days of hearing in the presentation of his affirmative case, it was reasonable to conclude that the hearing would extend beyond November 15 and the Charging Party would have been able to put on Ms. Renari even if the Respondent had concluded its case. Finally, by analogy, the California Code of Civil Procedure lends support to the decision to dismiss this case. Section 581 provides: An action may be dismissed in the following cases: 3. By the court, when either party fails to appear and the other party appears and asks for the dismissal, ••• 4. By the court, with prejudice to the cause, when upon the trial and before the final submission of the case, the plaintiff abandons it. In the present case, a court could exercise its discretion and dismiss the action pursuant to either subsection 3 or 4. (See, generally, O'Day v. Superior Court (1941) 18 Cal.2d 540; Campbell v. Security Pacific National Bank (1976) 62 Cal.App.3d 379; Souza v. Capital Co. (1963) 220 Cal.App.2d 744.) 17
Moreover, in Souza and in Union Bond and Trust Company v. Mand M Wood Working Company (1960) 179 Cal.App.2d 673, the Courts of Appeal noted that the power of a trial court to dismiss actions for failure to prosecute is not contingent upon statute but derives from the court's inherent power of control over its proceedings. In a judicial forum or in the PERB's quasi-judicial arena, discretion may properly be exercised to dismiss the instant case. A Charging Party who seeks to or is forced to represent himself may face difficulties. Indeed, in the instant case those problems were undoubtedly compounded because of the Charging Party's frustration over the initial wrongful dismissal of this case and the disposition of the other cases he had filed against the District and his exclusive representative. Nevertheless, at virtually every stage in the proceedings, attempts were made to accommodate the handicaps of a person representing himself and opposed by experienced legal counsel. The Charging Party made known his displeasure with the conduct of the hearing and the evidentiary rulings. Had that conduct or those rulings ultimately worked to his prejudice in a Proposed Decision, the Board itself would have been able to address those matters upon the filing of exceptions pursuant to section 32300 of title 8, part III, California Administrative Code. That would have been the appropriate avenue for the 18
redress of the Charging Party's alleged grievances. Disruption of the duly scheduled procedures and hearing by refusing to appear is not an appropriate self help measure. As previously noted, the Charging Party also made known his displeasure and moved to disqualify the Administrative Law Judge. By letter and subsequently on the record on October 24, 1983, Mr. Siamis was told that there was no basis for disqualification, but that if he wished to challenge that determination, he could file a request with the Board itself within 10 days pursuant to section 32155(d) of title 8, part III, California Administrative Code.4 He again elected not to pursue the avenues of redress available to him and thereby committed himself to the continuation of the hearing. Finally, at the close of the hearing on November 15, 1983, the Charging Party was informed of the undersigned's intention to dismiss the case. The case was not dismissed on the record, although such a ruling would have been consistent with the procedures followed by the Administrative Law Judge and upheld by the Board in Service Employees International Union, supra. The Charging Party was given an opportunity to show cause why his case should not be dismissed. He again failed to avail himself of the opportunity to articulate what reasons, if any, he had to justify his positioni he failed to do so. 4see Gonzales Union High School Teachers Association (2/27/84) PERB Decision No. 379. 19
To allow the Charging Party to proceed with his case, given his refusal to appear on two occasions and given his failure to show cause why this case should not be dismissed would be inconsistent with the Board's Decision and its rules. IV. CONCLUSION Based upon the foregoing, it is concluded that the Charging Party has refused to cooperate and satisfy his burden of presenting his case. He has failed to appear and failed to show cause why his case should not be dismissed. His conduct can only be construed as an abandonment of his claim. Accordingly, the Complaint is dismissed. V. PROPOSED ORDER Based upon the foregoing findings of fact, conclusions of law and the entire record in the case, it is ordered that the unfair practice charge and companion complaint in the matter filed against Los Angeles Unified School District by Gust Siamis is hereby DISMISSED. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision shall become final on March 28, 1984 unless a party files a timely statement of exceptions. (See California Administrative Code, title 8, part III, section 32300.) Such statement of exceptions and supporting brief must be actually received by the executive assistant to the Board at the headquarters office of the Public Employment Relations Board in Sacramento before the close of 20
business (5:00 p.m.) on March 28, 1984, or sent by telegraph or certified United States Mail, postmarked no later than the last day for filing in order to be timely filed. (See California Administrative Code, title 8, part III, section 32135.) Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. (See California Administrative Code, title 8, part III, sections 32300 and 32305.) DATED: March 8, 1984 21 Barbara E. Miller Administrative Law Judge
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GUST SIAMIS,
Charging Party, Case No. LA-CE-1163
Ve PERB Decision No. 464
LOS ANGELES UNIFIED SCHOOL DISTRICT, December 18, 1984
Respondent.
Appearances: Gust Siamis, on his own behalf; O'Melveny &
Myers, by Richard N. Fisher and Joel M. Grossman for the
Los Angeles Unified School District.
Before Hesse, Chairperson; Jaeger and Morgenstern, Members.
DECISION
HESSE, Chairperson: Gust Siamis appeals the attached
proposed decision of a Public Employment Relations Board
administrative law judge granting the respondent's motion to
dismiss his charge alleging a violation of section 3543.5(a) of
the Educational Employment Relations Act.
We have reviewed the hearing officer's decision in light of
the appeal and, finding it free from prejudicial error, adopt
it as the decision of the Board itself.
ORDER
The unfair practice charge and complaint in Case
No. LA-CE-1163 are DISMISSED WITHOUT LEAVE TO AMEND.
Members Jaeger and Morgenstern joined in this Decision.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
GUST SIAMIS,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
____________________ )
Unfair Practice
Case No. LA-CE-1163
PROPOSED DECISION
(3/8/84)
Appearances: Gust Siamis, on behalf of himself; Joel Grossman,
Esq. (O'Melveny & Myers), for the Los Angeles Unified School
District.
Before Barbara E. Miller, Administrative Law Judge.
I. PROCEDURAL HISTORY
A. The Board's Decision
On May 20, 1983, the Public Employment Relations Board
(hereinafter PERB or Board) issued its Decision in Los Angeles
Unified School District (5/20/83) PERB Decision No. 311, and
remanded the instant case to the General Counsel for further
processing consistent with its Decision.I In that Decision,
the Board reversed the Proposed Decision of the Administrative
Law Judge and held that the Unfair Practice Charge filed by
lDecision No. 311 concerned four cases which had been
consolidated for the formal hearing. In its decision, the
dismissal of the other three cases was sustained. Recently, in
Los Angeles Unified School District (2/23/84) PERB Decision
No. 311a, the Board denied a request for_reconsideration.
Gust Siamis (hereinafter Mr. Siamis or Charging Party) was not
barred by the statute of limitations provision set forth in
subsection 3541.S(a) of the Educational Employment Relations
Act (hereinafter EERA) .2
B. The Case on Remand
Subsequent to the issuance of the PERB Decision No. 311,
this case was transferred to the Office of Administrative Law
and an Informal Conference was scheduled and held on August 19,
1983, before Administrative Law Judge W. Jean Thomas. The
parties were unable to resolve their differences and the case
was set for formal hearing.
Before commencing the formal hearing, a Pre-hearing
Conference was held on September 14, 1983. At that time, the
parties set forth their respective positions and were advised
of the rules which would govern the conduct of the hearing.
The parties were advised and agreed that the issue to be
decided was whether Mr. Siamis received an unsatisfactory
evaluation and was transferred from the Union Avenue Elementary
School because he engaged in protected activity. Mr. Siamis
was advised that he might be required to first present evidence
that he engaged in protected activity, next that the District
knew of that activity, and then, and only then, evidence
2The EERA is codified beginning at Government Code
section 3540, et seq. Unless otherwise indicated, all
statutory references are to the Government Code.
2
regarding the alleged inaccuracies or improprieties in the
unsatisfactory evaluation itself. Subsequently, by letter
dated September 15, 1983, Mr. Siamis was advised that he would
indeed be required to present his evidence in that order.
During the course of the Pre-hearing Conference, the
District filed a Motion to Dismiss the case on the grounds that
the District, by way of settlement, had offered to provide
Mr. Siamis essentially all the relief he would receive if he
were to prevail in the evidentiary hearing. The District's
Motion to Dismiss was taken under submission.
On the first date set for hearing, September 26, 1983, in
order to evaluate whether the District was indeed offering to
provide Mr. Siamis with all the affirmative relief he might
gain from PERB, he was asked to clarify the remedy he sought.
Mr. Siamis made it clear that he wanted the following remedies:
(1) removal from his personnel file of any derogatory material
relating to the Notice of Unsatisfactory Service; (2) the
option of transferring back to the school where he had served
prior to receipt of the Notice; and (3) a finding that the
District was guilty of discriminating against him.
The District indicated that it would remove all the
material from Mr. Siamis' file and that it would post a notice
that it would not discriminate against Mr. Siamis or other
employees because of their exercise of protected rights. In
3
other respects, the District would not acquiesce in Mr. Siamis'
demands and, accordingly, the Motion to Dismiss was denied.3
The formal hearing was conducted on September 26, 27,
and 28, 1983. It was scheduled to reconvene on several dates
thereafter. However, as set forth in greater detail in
Section II, Findings of Fact Relevant to the Conduct of the
Hearing, infra, the case did not proceed as scheduled.
On November 22, 1983, the parties were sent a letter
notifying them that after the Administrative Law Judge received
the transcript of the proceedings, Mr. Siamis could file a
brief or position paper showing cause why the case should not
be dismissed; the Respondent would also have an opportunity to
submit written support for its position. The Charging Party
did not avail himself of the opportunity to show cause why the
case should not be dismissed. A letter setting forth
Respondent's position was timely filed and received on
February 8, 1984, at which time the case was submitted for
decision.
II. FINDINGS OF FACT RELEVANT TO
THE CONDUCT OF THE HEARING
The formal hearing convened on September 26, 1983. Despite
some difficulty with the Charging Party's identification of his
3Neither the rules of the Board nor its decisions provide
guidance regarding under what circumstances, if any, an
Administrative Law Judge may accept a settlement and dismiss
the charge over the objection of the Charging Party.
4
exhibits and some dispute regarding the Charging Party's
presentation of evidence, the case proceeded, although not
always in an orderly fashion. The Charging Party called
Dolores Renari, the Principal of Union Avenue Elementary
School, and William J. Sharp, the District's former
Superintendent in charge of the Office of Staff Relations. The
hearing reconvened on September 27 and Mr. Siamis recalled
Dolores Renari and also called Robert E. Searle, who had served
as the Director of the Teacher Integration Unit for the
District in the school year 1978-1979.
On September 28, Mr. Siamis called Sidney A. Thompson to
testify regarding events which occurred when he was the
Principal of Crenshaw High School in 1974. Mr. Siamis also
called Barbara E. LaBranch, who is a Coordinator, Staff
Relations, for the District, and Theodore F. Johnson, a teacher
at Union Avenue Elementary School when Mr. Siamis received his
Notice of Unsatisfactory Service. The hearing did not conclude
on September 28, 1983, but at the close of that day it was
continued to October 24, 25, and 26.
At the close of the hearing on September 28, 1983, the
undersigned issued an Order regarding the October hearing.
That verbal order was confirmed by a written Order dated
September 29, 1983, which provided as follows:
1. The Charging Party will provide a
complete package of his exhibits for the
witnesses;
5
2. The Charging Party will have a list of
his exhibits or be sufficiently familiar
with them so that he can refer to them by
their designated numbers during the
examination of witnesses;
3. Any subpoenas to be requested by either
party will be submitted to the Los Angeles
Regional Office of the Public Employment
Relations Board no later than 5:00 p.m. on
October 12, 1983;
4. Any subpoenas to be served by either
party will be served no later than
October 17, 1983;
5. If the Respondent intends to move to
quash any subpoena, a reasonable effort will
be made to notify the undersigned no later
than October 20, 1983;
6. The Charging Party will notify the
undersigned and the Respondent of the
witnesses he intends to call and the order
of such witnesses no later than October 20,
1983; and
7. When the hearing commences, the Charging
Party must be prepared to examine his
witnesses; no delays or continuances for
further preparation will be allowed.
[Emphasis added.]
On October 13, 1983, the Board itself received a document
from Mr. Siamis entitled:
Appeal of Hearing Officer's (Miller)
continuance, 3 day Hearings on Motion(s)
(other than the Unfair - as remanded by The
Board) and Rulings on Interlocutory Matters;
Request for Continuance Date Extension until
said Matters are Ruled Upon and Clearly
defined in writing prior to re-convening; &
Request for Hearing Officer MILLER
replacement with other than a Los Angeles
based or Smith, designee; and Motions.
After citing his numerous objections to the conduct of the
hearing, Mr. Siamis made the following motions:
6
Motion 1 Mr. Siamis Motions that Grossman
be ordered to attempt to quash any subpoenas
3 days after first filed with PERB, unless
improperly served by Siamis.
Motion 2 GS moves that H.O. Miller Declare
what step ••• the Hearing has now reached
so that Siamis can prepare his case & proper
witnesses in order.
Motion 3 Mr. Joel Grossman be held in
contempt for: {a) Failure to comply with
PERB 32646 in obtaining surprise dismissal,
{b) Failure to give Mr. Siamis advance
notice of his intended non-compliance with
Siamis pre-trial courtesy letter of 6/4/81
re: LA CE 1163.
Motion 4 and Request - that H. Officer
Miller be replaced with a Board member, or
some designee {not biased to O'Melveny &
Myers nor the LAUSD size/"stature") other
than a member of the LA Region {sic) Office
or a designee of W.P. Smith.
Motion 5 That the Reconvening Date of
10/24/83 & subpoena order dates be suspended
until the Matters cited herein are resolved,
ruled upon, & defined in writing so as to
allow the Plaintiff his right to establish
proof of guilt as per 32178 and 3543.5
without disruption.
On October 12, 1983, the undersigned communicated with the
parties, indicating the disposition of Mr. Siamis' "Appeal." A
letter of that date stated:
To the extent the Appeal is filed pursuant
to California Administrative Code, title 8,
part III, section 32200, I do not join in.
the charging party's request that the Board
itself rule on matters raised in the
Appeal. I cannot join in the request
because pursuant to the requirements of
section 32200, the issues involved are not
ones of law, the issues involved are not
controlling in the case and, an immediate
7
appeal will not materially advance the
resolution of the case.
To the extent that the Appeal is construed
as a request for disqualification pursuant
to California Administrative Code, title 8,
part III, section 32155, the request is
denied. The request is denied because my
continuing to sit as the Administrative Law
Judge does not conflict with any of the
provisions of section 32155(a) (1)-(4).
Moreover, I know of no facts which would
otherwise require disqualification and have
no reason to believe that the charging party
cannot receive fair and impartial
consideration of the case now pending •••
Given the rulings set forth herein, the
formal hearing will go forward on October
24, 1983 at 9:00 a.m. and all orders
pertaining to the hearing are still in
effect.
The hearing did reconvene on October 24, 1983. On that
date Mr. Siamis resumed his examination of Dolores Renari,
whose testimony had been interrupted to accommodate her
schedule and that of other witnesses. Mr. Siamis also called
Remedus L. Altar, and he recalled Theodore F. Johnson. On
October 25, Dolores Renari was recalled, examined,
cross-examined and excused. On that date Evert E. Anderson
testified as did Frank I. Kampelman and Lora Drogin. On
October 25, in an effort to conclude with the witnesses who had
been waiting several hours, the hearing proceeded until
approximately 9:00 p.m., at which time it was adjourned until
10:00 a.m. the next day.
On October 26, at 9:50 a.m., Mr. Siamis telephoned the
Los Angeles Regional Office of the Public Employment Relations
8
Board and spoke with Ethel Balkin, a senior legal secretary.
Mr. Siamis informed Ms. Balkin that he would not be attending
the hearing and that the undersigned was not to contact him by
telephone either at his school or at his home and that all
communications should be in writing. Mr. Siamis further
indicated, however, that he would try to reach the
Administrative Law Judge later that day. Mr. Siamis did
telephone the office at 10:00 a.m. and spoke with the
undersigned. He again indicated that he did not intend to
appear, he offered no explanation for his failure to appear,
and he declined to answer questions as to whether he was
requesting a continuance.
When the phone conversation with Mr. Siamis concluded, the
Respondent was present as was Joan Humphrey, the witness
Mr. Siamis had requested who was voluntarily produced by the
District. The Respondent was advised by the undersigned, on
the record, that Mr. Siamis would not attend the hearing, but
he would be given one final opportunity to indicate whether he
wished to proceed with his case. The Respondent made an oral
motion for dismissal, which subsequently was submitted in
writing and denied.
After the hearing adjourned, the undersigned sent
Mr. Siamis a letter outlining the events of the day and which
then stated as follows:
Notwithstanding your unexplained failure to
proceed at the date and time scheduled for
9
the hearing, you are being given one final
opportunity to indicate if you wish to put
on any further evidence in support of your
affirmative case. A form upon which you
should indicate your intentions is enclosed
and must be received in this office not
later than 5:00 p.m. on November 2, 1983.
If you do not return the form, or if you
return the form with the "no" box checked, I
will conclude that you have elected not to
put on any additional evidence in support of
your affirmative case and that you have
rested your case.
On November 1, 1983, the Los Angeles Regional Office received
from Mr. Siamis the form described above. Mr. Siamis checked
the box indicating that he was requesting that the formal
hearing be reconvened at the earliest possible date so that he
could put on additional evidence in support of his affirmative
case, but he qualified that statement with the following:
While I have several more witnesses to
present, in light of what appears to be
extreme rigid limitations on witnesses &
their testimony, harassment, bias, and an
excessive use of technical court language~
techniques to create disruption of my case,
I will rest my case, UNLESS Mr. Grossman has
a case he intends to present. IF SO, then I
shall be available, but I must then first be
allowed to continue and complete my case
prior to his.
After receiving Mr. Siamis' communication, the undersigned
contacted Mr. Grossman who indicated that, although he had not
received a copy of Mr. Siamis' communication, the Respondent
would rest and not put on evidence if Mr. Siamis rested. That
conversation was commemorated by a subsequent letter.
10
Notwithstanding the position of the parties, on November 2,
1983, the undersigned sent a letter to Mr. Siamis, which stated
as follows:
As I understand your communication of
October 28, 1983, you have additional
evidence and wish to present additional
evidence in support of your affirmative
case. However, because of your expressed
dissatisfaction with the conduct of the
hearing, you are prepared to waive the right
I have granted you to present additional
evidence if the Respondent will waive its
right to present rebuttal evidence to the
case you have presented thus far. The
Respondent has advised me by telephone, to
be followed by a letter, that it is prepared
to waive its right. Accordingly. based upon
your communication, I could find that you
have rested your case.
Nevertheless, I am reluctant to make that
finding before again reassuring you that I
know of no reason why you will not have fair
and impartial consideration of your case if
you elect to proceed. Therefore, please
advise me by telephone or in writing, not
later than 5:00 p.m. on November 9, 1983,
whether or not you are waiving your right to
proceed with the hearing. If you elect to
waive that right, I will close the record
and advise the parties of the deadlines for
the filing of post-hearing briefs. If you
elect to exercise the right to proceed, the
hearing will be reconvened on November 15,
1983, along lines consistent with the
attached Notice.
In order to avoid any further delay in the processing of the
instant case, a Notice of Hearing Reconvened and Orders was
sent to the parties on November 2, 1983. That Notice provided
as follows:
For purposes of the reconvened hearing, the
following rules, in addition to those
previously set forth shall apply.
11
1. The Charging Party must be prepared to
call his first witness at 9:00 a.m. when the
hearing reconvenes;
2. Any subpoenas to be issued should be
submitted to this office so as to allow
reasonable time for service on the parties
to be subpoenaed and to provide the District
with reasonable time to make substitutions,
if necessary;
3. Respondent will be informed of the order
in which witnesses will be called no later
than November 10, 1983, so that the
Respondent can make arrangement for those
witnesses, who~ subject to previous
agreements, will appear without being
subpoenaed.
4. Absent extraordinary circumstances, no
further continuances or delays will be
allowed. [Emphasis added.]
Late in the afternoon of November 9, 1983, Mr. Siamis
contacted the undersigned and indicated that he wanted to go
ahead with the hearing and agreed that he would appear at
9:00 a.m. on November 15, 1983. During the course of the
conversation, Mr. Siamis indicated that he wanted to call as
his witnesses Dolores Renari, Howard Russell, and himself.
Mr. Siamis was advised that he had already called Ms. Renari,
that she had been examined, cross-examined and excused.
Mr. Siamis indicated that he wished to call her again in light
of the testimony of Lora Drogin during the formal hearing
conducted on October 25, 1983. Since the testimony given was
in response to questions asked by the undersigned, Mr. Siamis
was advised that he would be allowed to recall Ms. Renari for
12
that limited purpose only and that his next witness should be
available at 9:30 a.m. on November 15, 1983.
The next day, on November 10, 1983, the District advised
the undersigned that Ms. Renari was not available on
November 15, and could not be produced for the hearing. When
this information was communicated to Mr. Siamis he indicated
that he would not attend the hearing. Mr. Siamis was advised
that Ms. Renari could be called on another day, if necessary,
and that the hearing would proceed at 9:00 a.m. on November 15,
1983. Despite Mr. Siamis' insistence that there would be no
hearing without Ms. Renari, that he would not take the witness
stand until all her testimony had been concluded, and that the
Administrative Law Judge would have to select a different date
for the hearing, Mr. Siamis was advised repeatedly during the
course of three phone conversations that he was required to
appear at 9:00 a.m. on November 15, 1983.
On November 15, Mr. Siamis failed to attend the hearing.
The Respondent appeared and moved to dismiss the case for the
Charging Party's failure to proceed. The Respondent was
advised that the Administrative Law Judge would consider
whether or not to reach the merits of the case and notify the
parties. Dates were established for the filing of post-hearing
briefs and the hearing was adjourned.
On November 22, 1983, a letter was sent to Mr. Siamis
advising him that the undersigned did not intend to reach the
13
merits of his case and intended to dismiss the case because of
his failure to proceed. He was advised, however, that he would
be given 40 days after the receipt of the transcript by the
Administrative Law Judge to file a brief or position paper
showing cause why the case should not be dismissed.
III. CONCLUSIONS OF LAW
In Service Employees International Union, Local 99, AFL-CIO
(5/18181) PERB Decision No. 163, the Board upheld the dismissal
of an Unfair Practice Charge under circumstances similar to
those presented in the instant case. In that case, the
charging party first failed to appear on a scheduled day of
hearing because he insisted that the case set for hearing could
not be heard until a charge he had subsequently filed was
disposed of. Over objections from the respondent union, the
Administrative Law Judge refused to dismiss the Complaint.
Subsequently, the case was rescheduled for hearing and the
Administrative Law Judge cautioned both parties that sanctions
would be imposed if either failed to appear. When the charging
party failed to appear for the hearing, the union moved to
dismiss the case and the motion was granted. Although the
present case is not identical to Service Employees
International Union, et al., the cases are sufficiently similar
to warrant dismissal.
In addition to the Board's Decision, support for granting
the Respondent's Motion to Dismiss is found in the Board's
14
Rules and Regulations. Section 32170, California
Administrative Code, title 8, part III, provides that "[t]he
Board agent conducting a hearing shall have the powers and
duties to: ••• (d) regulate the course and conduct of the
hearing II Throughout the course of the hearing of the
instant case, the Charging Party tried to usurp the control
properly vested in the Administrative Law Judge. In regulating
the course and conduct of the hearing, it is often necessary to
take witnesses out of order, or to require that the Charging
Party first prove certain elements of the offense alleged.
Moreover, once a case is set for hearing, neither party can
unilaterally determine that the date is inappropriate or that
he doesn't like certain procedural rulings and therefore fail
to appear. By his unjustified failure to appear on two days of
scheduled hearing, Mr. Siamis prevented the presentation of his
case in addition to inconveniencing his own witnesses and the
District. In exercising the discretion vested in the
Administrative Law Judge, in order to regulate the conduct of
the hearing, it is determined that dismissal is the appropriate
result.
In addition, in both instances when he failed to appear,
the Charging Party failed to comply with section 32205 of the
Board's Rules and Regulations. That section provides as
follows:
Continuances. A party may file a request
for a continuance of the formal hearing no
15
later than five days before the hearing.
The request shall be in writing, signed by
the party or its agent, state the grounds
for the request, and state the position of
each party regarding the request. An oral
request or a request for continuance
submitted less than five days prior to the
hearing may be made only under unusual
circumstances. A request for a continuance
shall be granted only under unusual
circumstances and if the other party will
not be prejudiced thereby.
On October 26 Mr. Siamis did not request a continuance and
refused to respond to inquiries from the undersigned as to
whether he wanted a continuance. With respect to the hearing
scheduled for November 15, even if one construes the Charging
Party's verbal protest to the hearing date as a request for a
continuance, grounds for a continuance did not exist and the
Charging Party was expressly told that a continuance would not
be granted.
The Charging Party objected to the hearing date and
requested a continuance because Dolores Renari would not be
available on the scheduled hearing date. Because she was not
available "as ordered by" the Charging Party, Mr. Siamis
complained that the hearing might take two days rather than one
and he objected to taking the witness stand himself before
Ms. Renari had concluded all of her testimony.
The position of the Charging Party was patently
unreasonable and did not constitute grounds for a continuance.
Ms. Renari had already testified during four days of the
hearing and she had been excused. Mr. Siamis was told that he
16
could recall her for the limited purpose of asking her
questions pertaining to some testimony elicited by the
Administrative Law Judge from Lora Drogin on the last day of
the hearing. For that purpose, Ms. Renari was not essential at
that juncture in the Charging Party's case. Moreover, given
that Mr. Siamis had already spent five days of hearing in the
presentation of his affirmative case, it was reasonable to
conclude that the hearing would extend beyond November 15 and
the Charging Party would have been able to put on Ms. Renari
even if the Respondent had concluded its case.
Finally, by analogy, the California Code of Civil Procedure
lends support to the decision to dismiss this case. Section
581 provides:
An action may be dismissed in the following
cases:
3. By the court, when either party fails to
appear and the other party appears and asks
for the dismissal, •••
4. By the court, with prejudice to the
cause, when upon the trial and before the
final submission of the case, the plaintiff
abandons it.
In the present case, a court could exercise its discretion and
dismiss the action pursuant to either subsection 3 or 4. (See,
generally, O'Day v. Superior Court (1941) 18 Cal.2d 540;
Campbell v. Security Pacific National Bank (1976) 62 Cal.App.3d
379; Souza v. Capital Co. (1963) 220 Cal.App.2d 744.)
17
Moreover, in Souza and in Union Bond and Trust Company v. Mand
M Wood Working Company (1960) 179 Cal.App.2d 673, the Courts of
Appeal noted that the power of a trial court to dismiss actions
for failure to prosecute is not contingent upon statute but
derives from the court's inherent power of control over its
proceedings. In a judicial forum or in the PERB's
quasi-judicial arena, discretion may properly be exercised to
dismiss the instant case.
A Charging Party who seeks to or is forced to represent
himself may face difficulties. Indeed, in the instant case
those problems were undoubtedly compounded because of the
Charging Party's frustration over the initial wrongful
dismissal of this case and the disposition of the other cases
he had filed against the District and his exclusive
representative. Nevertheless, at virtually every stage in the
proceedings, attempts were made to accommodate the handicaps of
a person representing himself and opposed by experienced legal
counsel.
The Charging Party made known his displeasure with the
conduct of the hearing and the evidentiary rulings. Had that
conduct or those rulings ultimately worked to his prejudice in
a Proposed Decision, the Board itself would have been able to
address those matters upon the filing of exceptions pursuant to
section 32300 of title 8, part III, California Administrative
Code. That would have been the appropriate avenue for the
18
redress of the Charging Party's alleged grievances. Disruption
of the duly scheduled procedures and hearing by refusing to
appear is not an appropriate self help measure.
As previously noted, the Charging Party also made known his
displeasure and moved to disqualify the Administrative Law
Judge. By letter and subsequently on the record on October 24,
1983, Mr. Siamis was told that there was no basis for
disqualification, but that if he wished to challenge that
determination, he could file a request with the Board itself
within 10 days pursuant to section 32155(d) of title 8,
part III, California Administrative Code.4 He again elected
not to pursue the avenues of redress available to him and
thereby committed himself to the continuation of the hearing.
Finally, at the close of the hearing on November 15, 1983,
the Charging Party was informed of the undersigned's intention
to dismiss the case. The case was not dismissed on the record,
although such a ruling would have been consistent with the
procedures followed by the Administrative Law Judge and upheld
by the Board in Service Employees International Union, supra.
The Charging Party was given an opportunity to show cause why
his case should not be dismissed. He again failed to avail
himself of the opportunity to articulate what reasons, if any,
he had to justify his positioni he failed to do so.
4see Gonzales Union High School Teachers Association
(2/27/84) PERB Decision No. 379.
19
To allow the Charging Party to proceed with his case, given
his refusal to appear on two occasions and given his failure to
show cause why this case should not be dismissed would be
inconsistent with the Board's Decision and its rules.
IV. CONCLUSION
Based upon the foregoing, it is concluded that the Charging
Party has refused to cooperate and satisfy his burden of
presenting his case. He has failed to appear and failed to
show cause why his case should not be dismissed. His conduct
can only be construed as an abandonment of his claim.
Accordingly, the Complaint is dismissed.
V. PROPOSED ORDER
Based upon the foregoing findings of fact, conclusions of
law and the entire record in the case, it is ordered that the
unfair practice charge and companion complaint in the matter
filed against Los Angeles Unified School District by
Gust Siamis is hereby DISMISSED.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision shall become
final on March 28, 1984 unless a party files a timely statement
of exceptions. (See California Administrative Code, title 8,
part III, section 32300.) Such statement of exceptions and
supporting brief must be actually received by the executive
assistant to the Board at the headquarters office of the Public
Employment Relations Board in Sacramento before the close of
20
business (5:00 p.m.) on March 28, 1984, or sent by telegraph or
certified United States Mail, postmarked no later than the last
day for filing in order to be timely filed. (See California
Administrative Code, title 8, part III, section 32135.) Any
statement of exceptions and supporting brief must be served
concurrently with its filing upon each party to this
proceeding. (See California Administrative Code, title 8,
part III, sections 32300 and 32305.)
DATED: March 8, 1984
21
Barbara E. Miller
Administrative Law JudgeWas bedeutet dieser Text für Ihre Situation?
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