Seattle School District, Decision 10073 (EDUC, 2008)

                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
SEATTLE SCHOOL DISTRICT,           )
                                   )
                    Employer.      )
-----------------------------------)
ROBERT FEMIANO                     )    
                                   )
                    Complainant,   )    CASE 21048-U-07-5371
                                   )
          vs.                      )    DECISION 10073 - EDUC
                                   )
SEATTLE EDUCATION ASSOCIATION,     )    
                                   )    
                    Respondent.    )    ORDER OF DISMISSAL
___________________________________)

     Robert Femiano appeared pro se.

     Michael J. Gawley, Attorney at Law, for the union.

On May 1, 2007, Robert Femiano filed a complaint charging unfair
labor practices with the Public Employment Relations Commission,
naming the Seattle Education Association (union) as respondent.  On 
June 5, 2007, the Commission issued a preliminary ruling under WAC
391-45-110 finding that a cause of action existed on allegations of
union interference with employee rights and union discrimination.

The union filed a timely response to the complaint on June 25, 2007.
 On December 10, 2007, the union filed a motion for summary
judgment.(fn:1)  The Examiner issued a letter denying the motion on
December 21, 2007, which the union appealed on January 3, 2008.  The
Executive Director responded with a letter advising the union that
its appeal could not be accepted until a final order was issued.  A
hearing date was set for May 8, 2008.(fn:2)
____________________
fn:1     Femiano had other complaints pending with the Commission
during the elapsed time period, and requested a delay in scheduling
this hearing until resolution of the other matters.
fn:2     Hearing dates were previously set for April 4, 2008 and April
18, 2008, but were continued at the request of the parties.


On the date of the hearing, the parties were to convene at 10:00
A.M. at the Commission's Kirkland office.  The union sent its
counsel, Michael Gawley.  Three witnesses for the union were also in
attendance.(fn:3)  At 11:00 A.M., Femiano still had not arrived.  At
that point, the Examiner opened the hearing on the record and called
for appearances for each party.  
____________________
fn:3     The employer did not attend because they were not a direct
party to the complaint.


Hearings conducted by the Commission and its examiners in unfair
labor practice cases are adjudicative proceedings subject to the
Administrative Procedure Act (APA), Chapter 34.05 RCW.  The APA states:

     RCW 34.05.440--DEFAULT.
     . . . .
     (2) If a party fails to attend or participate in a hearing or
     other stage of an adjudicative proceeding, . . . the presiding
     officer may serve upon all parties a default or other
     dispositive order, which shall include a statement of the
     grounds for the order.

According to unfair labor practice case rules, the complaining party
is responsible for the presentation of its case, and has the burden
of proof.  The examiner is not authorized to undertake the
responsibilities for the complainant's case if that burden is not
met.  WAC 391-45-270.

Femiano failed to appear at the hearing with no explanation.  The
union moved for dismissal of the complaint for lack of prosecution,
and the Examiner granted the motion.(fn:4)
____________________
fn:4     The union also requested that some type of sanction be
included with the final order.  However, the Examiner cannot
authorize a sanction or remedy in this situation.


NOW THEREFORE, it is 

                               ORDERED
                                   
The complaint charging unfair labor practices in the above matter is
DISMISSED for lack of prosecution.

ISSUED at Olympia, Washington, this  14th  day of May, 2008.


                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    LISA A. HARTRICH, Examiner


This order will be the final order of the 
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.