Service Employees International Union, Local 99 (Kimmett) (PERB 0163E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JULES KIMMETT,
Charging Party, 	Case No. LA-CO-36
v . 	PERB Decision No. 163
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 99, AFL-CIO, May 18, 1981
Respondent.
Appearances : 	Jules Kimmett, in pro per.
Before Gluck, Chairperson; Jaeger and Moore, Members.
DECISION
Mr. Jules Kimmett appeals the attached hearing officer's
notice of dismissal of Kimmett's unfair practice charge with
prejudice and without leave to amend.
After considering the entire record in light of the appeal,
the Board has decided to affirm the hearing officer's findings
and conclusion and adopt her decision and order.
The hearing officer found that the attorney for Service
Employees International Union, Local 99, sought a continuance of
the September 24, 1979 hearing in this case approximately thirty
to thirty-five minutes prior to the scheduled hearing time. 	The
record indicates the continuance was sought five to ten minutes
before the hearing was to begin. However, the Board finds this
inaccuracy in the findings of fact does not prejudice the
charging party.
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JULES 	KIMMETT,
Charging 	Party,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	99, 	AFL-CIO,
Respondent.
)
)
) 	Case 	No. 	LA-CO-36
PERE 	Decision 	No.
May 	18, 	1981
)
)
)
)
)
)
)
)
Appearances: 	Jules 	Kimmett, 	in 	pro 	per.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION
163
Mr. 	Jules 	Kimmett 	appeals 	the 	attached 	hearing 	officer's
notice 	of 	dismissal 	of 	Kimmett's 	unfair 	practice 	charge 	with
prejudice 	and 	without 	leave 	to 	amend.
After 	considering 	the 	entire 	record 	in 	light 	of 	the 	appeal,
the 	Board 	has 	decided 	to 	affirm 	the 	hearing 	officer's 	findings
and 	conclusion 	and 	adopt 	her 	decision 	and 	order. 1
The1 hearing 	officer 	found 	that 	the 	attorney 	for 	Service
Employees 	International 	Union, 	Local 	99, 	sought 	a 	continuance 	of
the 	September 	24, 	1979 	hearing 	in 	this 	case 	approximately 	thirty
to 	thirty-five 	minutes 	prior 	to 	the 	scheduled 	hearing 	time. 	The
record 	indicates 	the 	continuance 	was 	sought 	five 	to 	ten 	minutes
before 	the 	hearing 	was 	to 	begin. 	However, 	the 	Board 	finds 	this
inaccuracy 	in 	the 	findings 	of 	fact 	does 	not 	prejudice 	the
charging 	party.

ORDER
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
The unfair practice charge LA-CO-36, filed by Jules Kimmett
against the Service Employees International Union, Local 99,
AFL-CIO, is hereby DISMISSED with prejudice and without leave to
amend .
PER CURIAM
N
ORDER
2
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
The 	unfair 	practice 	charge 	LA-CO-36, 	filed 	by 	Jules 	Kimmett
against 	the 	Service 	Employees 	International 	Union, 	Local 	99,
AFL-CIO, 	is 	hereby 	DISMISSED 	with 	prejudice 	and 	without 	leave 	to
amend.
PER CURIAM

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JULES KIMMETT,
Charging Party, 	Case No. LA-CO-36
SERVICE EMPLOYEES INTERNATIONAL DISMISSAL WITHOUT LEAVE
UNION, LOCAL 99, AFL-CIO, 	TO AMEND
(6/6/80)Respondent.
Appearances: 	Jules Kimmett, in pro. per.; Michael Posner,
Attorney (Geffner & Satzman) for Service Employees International
Union, Local 99.
Before Diane M. Spencer, Hearing Officer
On
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JULES
	KIMMETT,
Charging
	Party,
SERVICE
	EMPLOYEES
	INTERNATIONAL
UNION,	
LOCAL
	99,
	AFL-CIO,
Respondent
..
Case
	Noe
	LA-CO-36
DISMISSAL
WITHOUT
	LEAVE
TO AMEND
	·
(6/6/80)
AEpearances:
	Jules
	Kimmett,
	in
	pro~
	pere;
	Michael
	Posnerp
Attorney
	(Geffner	
&	
Satzman)
	for 	Service
	Employees
	International
Union,
	Local
	99~
Before
	Diane	
M.	
Spencer,
	Hearing
	Officer
PROCEDURAL HISTORY AND FACTS	
PROCEDURAL
	HISTORY
	AND
	FACTS
On May 27, 1980, the above-captioned matter was scheduled
for the continuation of a formal hearing. The charging party,
Jules Kimmett (hereafter Kimmett) failed to appear.
Respondent Service Employees International Union, Local 99
(hereafter SEIU) moved to dismiss the charge due to Kimmett's
failure to appear. The motion was granted.
After several amendments, this charge is actually a	
After 	several
	amendments,
	this
	charge
	is 	actually
	a
consolidation by amendment of several unfair practice	
consolidation	
by	
amendment
	of 	several 	unfair 	practice
charges	
charges filed with the Public Employment Relations Board	
filed
	with 	the 	Public
	Employment
	Relations
	Board
1
dated by amendment as	T	lThe·	he charges which were consoli	
charges
	which 	were
	consolidated 	by	
amendment
	as
part of LA-CO-36 included LA-CO-31, LA-CO-41, LA-CO-42,	
part 	of
	LA-CO-36
	included
	LA-CO-31, 	LA-CO-41, 	LA-CO-42,
LA-CO-43, LA-CO-45, LA-CO-48, LA-CO-49. At the time of	LA-CO-43, 	LA-CO-45, 	LA-CO-48, 	LA-CO-49. 	At
	the 	time 	of
consolidation, all of the foregoing files except LA-CO-36 were	
consolidation,
	all
	of 	the 	foregoing
	files
	except
	LA-CO-36 	were
closed .	
closed.
May
	27, 	1980,
	the 	above-captioned
	matter
	was
	scheduled
for 	the 	continuation 	of
	a
	formal
	hearing&
	The
	charging
	party,
Jules
	Kimmett
	(hereafter
	Kimmett) 	i
	to
Respondent
	Service
	Employees
	International
	Union,
	Local
	99
(hereafter
	SEIO) 	moved
	to
	dismiss 	the 	charge
	due
	to
	Kimrnett's
failure 	to
	appear.
	The
	motion
	was
	grantede
)
>
)
)
)
)
)
)
)
)
	___________________
}

(hereafter PERB) between August 29, 1977 and January 10,
1979. The amended charge, filed January 29, 1979, alleges
that SEIU discriminated against Kimmett in violation of
section 3543.5 (b) of the Educational Employment Relations Act
(hereafter EERA) by failing to fairly represent him as
required by section 3544.9.2
2
(hereafter
The first day of formal hearing in this matter was
August 6, 1979. Since the hearing was not concluded, it was
continued to September 24 and, if necessary, October 29.
The
On the morning of Monday, September 24, SEIU's attorney	
On
	the
	morning
	of
	Monday,
	September
	24,
	SEIU's
	attorney
called this hearing officer and requested a continuance	
called 	this
	hearing
	officer
	and
	requested
	a
	continuance
because he had the flu. The continuance was granted. Kimmett	
because
	he 	had
	the
	flu
..
	The
	continuance
	was
	granted.
	Kim.mett
and his witnesses subsequently arrived and voiced their	
and
	bis
	witnesses
	subsequently
	arrived
	and
	voiced
	their
objections on the record to the continuance and the fact that	
objections
	on
	the 	record 	to 	the 	continuance
	and
	the
	fact 	that
SEIU's attorney did not call this office until approximately	
SEIU's
	attorney
	did 	not
	call
	this 	office
	until
	approximately
30-35 minutes prior to the scheduled hearing time.	
30-35 	minutes
	prior 	to
	the 	scheduled 	hearing
	time~
In response to the objections, Kimmett was granted the
opportunity to select the next hearing date, without input
from SEIU, if he wanted one before October 29. Kimmett stated
that he could not proceed before that date because there were
too many witnesses to contact. He further said that he didn't
want a hearing on October 29 because he wanted time to request
to
2	2The EERA is codified at Government Code section 3540 et
..
The
2
2
PERB)
	between
	August	
29r	
1977 	and
	January
	101
1979Q 	The 	amended
	charge,
	filed
	January
	29,
	1979r
	alleges
that
	SEIU
	discriminated 	against
	Kimmett
	in
	violation
	of
section.	
3543
~
5
{b)	
of 	the
	Educational
	Employment
	Relations
	Act
{hereafter
	EERA)	
by	
failing
	to
	fairly
	represent
	him
	as
required 	by	
section
	3544~9.
EERA
	is
	codified 	at
	Government 	Code
	section
	3540
	etsea.	
seq
objections
c 	Kimrnett 	was 	grc:rnted
opportunity	
"
to
	select
	the 	next 	hearing
	date, 	without.input
from 	SEIU;
	if
	he 	wanted 	one
	before
	October 	29.
	Kimmett
	stated
that
	he
	could 	not
	~roceed
	before
	that
	date
	because
	there
	were
too
	many
	witnesses 	to 	contact.
	He
	further 	said 	that
	he
	didn't
want 	a	
hearing
	on
	October
	29
	because
	he 	wanted 	time
	to 	request
first
	day of
	formal
	hearing 	in
	this
	matter
	was
August
	6,
	1979. 	Since
	the 	hearing
	was
	net
	concluded,
	it
	was
continued
	to
	September
	24
	and,
	if
	necessary,
	October 	29.

that the PERB general counsel take punitive action against	
that
This hearing officer ruled that no further punitive action
would be taken against SEIU, that formal hearing would
continue on October 29 and, if necessary, November 5, and that
both of these rulings were nonappealable orders.
This
On October 15, 1979, this hearing officer sent both
parties a letter informing them of PERB regulation 32205 which
requires three days written notice of a request for
continuance, unless there exists an "unusual circumstance."
On
circumstance~n
3
On October 23, Kimmett filed another unfair practice
charge against SEIU, PERB case number LA-CO-108, alleging that
SEIU's attorney intentionally failed to appear in this matter
on September 24 in an attempt to thwart Kimmett's case.
On
On October 29, the date scheduled for the continuation of
the formal hearing in this matter, Kimmett failed to appear.
In a telephone conversation placed by this hearing officer to
Kimmett that morning, he stated that he would not appear on
LA-CO-36 until the issues in LA-CO-108 were resolved. He was
On
3The regulation is codified at Title 8, Calif. Admin.	The
	regulation 	is 	codified
	at 	Title 	8, 	Calif.
	Admin.
Code,	Code, part III, section 32205. The letter informed both	
part
	III,
	section
	32205. 	The
	letter
	informea 	both
parties that in the case of an "unusual circumstance" on the	
parties 	that 	in 	the 	case 	of
	an
	"unusual 	circumstance"
	on
	the
date of the hearing, the requesting party must first attempt	
date 	of 	the 	hearing, 	the 	requesting 	party
must
	first
	attempt
to seek concurrence of the other party and then call the	
to
	seek 	concurrence 	of 	the 	other 	party
	and
	then
	call
	the
hearing officer who will rule upon the request if they cannot	
hearing 	officer
	who
	will 	rule
	upon
	the 	request
	if
	they 	cannot
agree.	
agree.
W
3
3
the
	PERB
	general
	counsel 	take
	punitive 	action 	against
SEIU.	SEIU.
hearing
	officer
	ruled
	that
	no
	further 	punitive 	action
would	
be
	taken
	against
	SEIU,
	that
	formal
	hearing
	would
continue
	on
	Octobe~
	29
	and,
	if
	necessary,
	November
	5,
	and
	that
both
	of
	these
	rulings
	were
	nonappealable
	ordersc
October
	15,
	1979,
	this
	hearing
	officer
	sent
	both
parties
	a
	letter
	informing
	them
	of
	PERB
	regulation
	32205
	which
requires 	three
	days
	written 	notice 	of
	a
	request 	for
continuance, 	unless 	there
	exists
	an
	"unusual
October 	23,
	Kimmett
	filed
	another
	unrair 	practice
charge
	against
	SEIU,
	PERB
	case
	number 	LA-CO-108,
	alleging
	that
SEIU's
	attorney 	intentionally 	failed
	to
	appear
	in
	this
	matter
on 	S~ptember
	24
	in
	an
	attempt
	to
	thwart
	Kimmett's
	case.
October 	29,
	the 	date
	scheduled
	for 	the 	continuation 	of
the
	formal 	ing
	in
	is
	mat
	fai 	to
In
	a
	telephone 	conversation 	placed 	by	
this
	hearing
	officer 	to
Kimmett
	that
	morning, 	he
	stated 	that
	he 	would
	not 	appear
	on
LA-CO-36
	until
	the 	issues 	in
	LA-CO-108 	were
	resolved.
	He
	was

informed that his refusal to appear could result in the	
informed
	that
	his 	refusal
	to
	appear 	could
	result
	in
	the
imposition of sanctions on him.	
imposition 	of 	sanctions
	on 	him~
SEIU went on the record briefly that day to move to	SEIU
	went 	on
	the
	record
	briefly
	that
	day
	to
	move
	to
dismiss the charge based upon Kimmett's refusal to appear.	
dismi~s
	the
	charge
	based
	upon
	Kimmett's
	refusal
	to
	appear*
The motion was taken under advisement.	The
	motion
	was
	taken
	under
	advisement~
A formal hearing was held in the matter of case number
LA-CO-108 on January 14, 1980, before another hearing
officer. He subsequently dismissed the charge, finding that
this hearing officer's decision to grant a continuance in case
number LA-CO-36 on September 24, 1979 was res judicata to the
issue of whether SEIU committed an unfair practice by seeking
A
Subsequently, SEIU's motion to dismiss based upon
Kimmett's failure to appear in case number LA-CO-36 on
October 29 was denied. However, the written dismissal
admonished both parties that the charge could be dismissed,
could be heard in the absence of one party, or other sanctions
taken if either of the parties again failed or refused to
Subsequently,
The matter was then scheduled for May 27, 1980, at
a.m., by notice dated April 18, 1980. At that time,
SEIU appeared and was prepared to proceed. Kimmett again
failed to appear. This hearing officer telephoned his
residence at approximately 10:15 a.m. and 10:55 a.m. on the
morning of May 27. His wife said that he was not home but
The	
matter
	was
	then 	scheduled 	for
	May
	27e 	1980,
	at
10:00	
10:00
	a.m., 	by 	notice 	dated 	April 	18, 	1980. 	At
	that
	time,
SEIU
	appeared
	and 	was
	prepared 	to 	proceed.
	Kim:rnett
	again
failed 	to 	appear. 	This 	hearing
	officer
	telephoned 	his
resideDce
	at
	approximately 	10:15 	a.m. 	and 	10:55 	a.m. 	on
	the
morning 	of
	May
	27. 	His 	wife 	said 	that
	he 	was
	not
	home
	but
(
4
SEIU's 	motion
	to
	dismiss
	based
	upon
Kimmett's
	failure
	to
	appear
	in 	case
	number 	LA-CO-36 	on
October
	29 	was
	denied.
	However,
	the 	written 	dismissal
,
could
	be
	heard
	in
	the
	absence
	oE
	one
	party, 	or 	other 	sanctions
taken
	if
	either
	of 	the
	parties
	again
	failed 	or 	refused 	to
appear .	
appear.
formal
	hearing
	was
	held
	in 	the 	matter 	of 	case
	number
LA-CO-108
	on
	January 	14,
	1980,
	before 	another 	hearing
officer.
	He
	subsequently 	dismissed 	the 	charger
	finding
	that
this
	hearing
	officer's
	decision 	to 	grant
	a
	continuance 	in 	case
number 	LA-CO-36
	on September
	24,
	1979
	was~
	judicata
	to 	the
issue
	of
	whether
	SEIU
	committed 	an
	unfair
	practice	
by 	seeking
that continuance.	
that
	continuance.

that he did not say that he was going to a hearing at the
She expected him to return at approximately 12:00 p.m.
A message was left both times for Kimmett to call this hearing
officer whenever he came in.
that
After waiting until 11:00 a.m. , this hearing officer
commenced the hearing. SEIU moved to dismiss LA-CO-36 due to
Kimmett's failure to appear. The motion was granted. Kimmett
has not communicated with the PERB either verbally or in
writing regarding this matter up to the date of this dismissal.
After
DISCUSSION AND CONCLUSIONS	DISCUSSION
Section 581(3) of the California Code of Civil Procedure
(hereafter C.C.P.) provides for a dismissal within the
discretion of a court " . when either party fails to
appear on the trial and the other party appears and asks for
By analogy, this case is dismissed.
Section
The record is undisputed that Kimmett knew of the hearing
scheduled for May 27 over one month in advance. He had also
been advised of the consequences that could attach for his
failure to appear. Both parties were informed of the
possibility of sanctions for failing to appear or improperly
requesting a continuance by this hearing officer's letter of
October 15, 1979 and the written order denying the previous
x:ecord
Kimmett's failure to appear on October 29 was excused by	
Kimmett's
	failure 	to 	appear 	on 	October
	29 	was 	excused 	by
this hearing officer even in the face of a motion to dismiss.	
this 	hearing 	officer
	even 	in 	the 	face 	of
	a 	motion
	to 	dismiss.
he
	did
	not
	say
	that
	he 	was
	going
	to
	a
	hearing
	at
	the
PERB.	
PERB
..
	She
	expected
	him
	to 	return
	at
	approximately
	12:00
	p
..
m.
A
message
	was
	left
	both
	times
	for
	Kimmett
	to
	call 	this
	hearing
officer
	whenever
	he 	came 	in¢
waiting
	until
	11:00 	a$m.,
	this
	hearing
	officer
commenced
	the
	hearinge
	SEIU moved
	to
	dismiss
	LA-C0-36
	due
	to
Kimmettis
	failure
	to
	appear.,
	The
	motion
	was
	granted"
	Kimmett
has
	not
	communicated
	with
	the
	PERB
	either
	verbally 	or 	in
writing
	regarding
	this
	matter
	up
	to
	the 	date 	of
	this
	dismissal.
AND
	CONCLUSIONS
581(3)
	of 	the
	California
	Code
	oi 	Civil
	Procedure
(hereafter
	c.c.P.)
	provides 	for
	a
	dismissal 	within 	the
discretion
	of
	a
	court"
	• 	e 	e 	when
	either
	party
	fails
	to
appear
	on
	the
	trial
	and
	the 	other 	party
	appears
	and
	asks
	for
the dismissal	
the 	dismissal
	By
	analogy,
	this
	case
	is
	dismissed~
5
is
	i 	t 	K	
tt	
knew o
scheduled 	for
	May
	27
	over
	one 	mcnth
	in
	adva~ce.
	He
	had
	also
been 	advi~ed
	of
	the
	consequences
	that
	could
	attach 	for 	his
failure 	to 	appear.
	Both
	parties
	were 	informed
	of 	the
possibility
	of 	sanctions 	for
	failing
	to
	appear 	or 	improperly
requesting
	a
	continuance 	by	
this
	hearing
	officerrs 	letter
	of
October 	15,
	1979 	and
	the 	written 	order
	denying 	the 	previous
motion to dismiss.	
motion
	to
	dismiss®

That same unjustified conduct will not be excused again. . This	
That
	same
	unjustified
	conduct
	will
	not
	be
	excused
	again.·
	This
matter is therefore DISMISSED.	
matter
	is
	therefore
	DISMISSED.
If the charging party chooses to appeal the dismissal, it	
If
	the 	charging
	party
	chooses
	to
	appeal
	the 	dismissale
	it
may do so by filing an original and four copies of an appeal	may
	do
	so 	by	
filing
	an
	original
	and
	four
	copies 	of
	an
	appeal
to the Board itself within twenty (20) calendar days after	
to 	the
	Board
	itself
	within
	twenty
	(20)
	calendar
	days
	after
service of this Notice of Dismissal. (Section 32630 (b) .)	
service 	of
	this
	Notice
	of
	Dismissalo
	(Section
	32630(b)
a)
Such appeal must be actually received by the Executive	
Such
	appeal
	must 	be
	actually
	received	
by	
the
	Executive
Assistant to the Board before the close of business	
Assistant 	to
	the
	Board
	before
	the 	close
	of
	business
(5:00	
(5:00p.m.) on July 2, 1980, in order to be timely filed.	
p.m.j
	on
	July
	2,
	1980, 	in 	order 	to
	be
	timely
	filed$
(Section 32135.) Such appeal must be in writing, signed by	
{Section
	321350) 	Such
	appeal
	must 	be
	in
	writing,
	signed 	by
the party or his agent, and contain facts and arguments upon	
the
	party
	or
	his
	agent,
	and
	contain
	facts
	and
	arguments
	upon
which the appeal is based. (Section 32630 (b) .) The appeal	
which
	the
	appeal
	is
	based~
	(Section
	32630{b).)
	The
	appeal
must be accompanied by proof of service upon all parties.	
must 	be 	accompanied	
by proof
	of 	service
	upon
	all
	parties·~
(Section 32630 (b) .)	
(Section 	32630(b).}
Dated: June 6, 1980	
Dated:
	June
	6,
	1980 	WILLIAM P. SMITH	
WILLIAM
	P~
	SMITE
Chief Administrative Law Judge	
Chief 	Administrative
	Law
	Judge
By xDiane M. Spencer
6
By/
t:.z:...:_Diane M.
	Speric
Hearing Officer	
Hearing
	Officer.
er·----
6
(