Board Refuses To Allow Withdrawal Without Prejudice

County of Fresno (2014) PERB Decision No. 2352-M (Issued on 1/29/14)

It’s not uncommon for a party to request to withdraw exceptions that have been filed to a proposed decision. This usually occurs where there is a settlement. The Board has to consent to the withdrawal of exceptions, but generally allows it. Once the exceptions are withdrawn, the underlying ALJ decision becomes final. Sometimes a party will also ask that the underlying unfair practice charge be withdrawn and/or that the ALJ decision be vacated. That’s what occurred in this case. The party that filed exceptions requested that they be withdrawn and also requested to withdraw the “underlying unfair practice charge without prejudice.” The opposing party had no objections to the withdrawal of the exceptions but argued that the underlying unfair practice charge should only be withdrawn with prejudice. The Board agreed with the opposing party.

The Board noted that absent special circumstances, exceptions may be withdrawn unilaterally by request of the party who filed them. However, the Board refused to allow the underlying unfair practice charge to be withdrawn without prejudice. The Board noted that, “Although an unfair practice complaint is based on an unfair practice charge, issuance of a complaint by the Office of the General Counsel signifies that the dispute is not only one that charging party wishes to pursue but one that PERB has determined should be pursued.” (Emphasis original.) Here, the complaint was litigated all the way through a formal hearing and a proposed decision was issued. According to the Board, allowing the “non-prevailing party, to rewind the clock and un-do the litigation, and re-file a charge on the same issues if it so chooses at a later date, by granting its request to simply withdraw the unfair practice charge without prejudice serves very little, if any, purpose.” So the Board held that:

Without at least the prevailing party’s consent, as in cases that are disposed of via a global settlement of outstanding issues between the parties, requests such as SEIU’s to withdraw a charge that has been fully litigated without prejudice do not warrant the Board’s approval.

Comments:

This is a common sense decision from the Board. It prevents a party from getting “two bites of the apple” by simply withdrawing an unfair practice charge and re-filing it later. Granted, this wouldn’t happen very often since in most situations, any subsequent unfair practice charge would be time-barred. However, in those rare situations where a subsequent unfair practice charge is not time-barred, this decision makes perfect sense.
Practitioners should note that it is still possible to request that an underlying unfair practice charge be withdrawn and/or that the ALJ decision be vacated as long as it’s a joint request.