Dismissals Not Entitled to Preclusive Effect

Grossmont Union High School District (2010) PERB Decision No. 2126E (Issued on 8/13/10)

This case involved an employee who alleged that he received a negative performance evaluation and was demoted because of protected activities. Specifically, the employee alleged that the adverse actions were taken after he wrote a letter to the principal accusing the principal of violating the applicable collective bargaining agreement and because he requested union representation during a meeting with his manager. The Office of the General Counsel issued a complaint. After a formal hearing, the ALJ found no nexus between the adverse actions and the protected activities, and on that basis, dismissed the complaint.

Of interest was the fact that the employee had filed an unfair practice charge against his union for breach of the duty of fair representation (DFR) arising from the same set of facts. (See Service Employees International Union, Local 221 (Meredith) (2008) PERB Decision No. 1982.) In the DFR case, the Board found that the employee failed to state a prima facie case that his union caused or attempted to cause the District to reject him on probation. Relying on that decision, District in this case moved to dismiss the complaint.

In its decision, the Board declined to give preclusive effect to the prior DFR decision. Here’s what the Board held:

“In City of Porterville (2007) PERB Decision No. 1905-M, the Board, citing the “doctrines of res judicata and collateral estoppel,” gave preclusive effect to a Board agent’s dismissal of identical allegations in a separate unfair practice charge. However, a Board agent’s review of a charge to determine whether it establishes a prima facie case of an unfair practice does not meet the “actually litigated” requirement for collateral estoppel. To be “actually litigated” for purposes of collateral estoppel, an issue must have been decided based on the presentation of evidence at a hearing. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.) The Board has consistently held that the function of a Board agent’s investigation is not to resolve the merits of the case because such resolution is reserved for PERB ’ s hearing process. (Golden Plains Unified School District (2002) PERB Decision No. 1489; Eastside Union School District (1984) PERB Decision No. 466.) We therefore overrule City of Porterville, supra, to the extent it granted preclusive effect to a dismissal of an unfair practice charge based solely on a Board agent’s charge investigation.”

Thus, the Board has overruled City of Porterville and will no longer give preclusive effect to a dismissal. This issue doesn’t arise very often but practitioners should take note of this change in law.

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