General Counsel Review Of Dismissals: Is A New Procedure On The Horizon?

City of Carlsbad (2012) PERB Decision No. 2276-M (Issued on 6/27/12)

Simple facts. Board agent gave union time to file amended unfair practice charge. Before that time expired, the charge was dismissed in error. Union appealed. The Office of the General Counsel separately requested that the Board remand this case for further investigation based on the error. In granting the appeal and request for remand, the Board explained that:

The Board has adopted a procedure whereby the General Counsel reviews cases dismissed by Board agents. As explained in similar requests from the General Counsel (Santa Ana Education Association (O’Neil, et al.) (2005) PERB Decision No. 1776; California School Employees Association and its Chapter 9302 (Lauer) (1990) PERB Decision No. 809; California State Employees ’Association (Morrow) (1986) PERB Decision No. 568-S), the purpose of the review is to minimize and reduce appellate litigation caused by inadequacies in the processing of unfair practice charges.

Comments:

Although this case does not set forth new law it did catch me by surprise since the concept of “General Counsel review” doesn’t arise that often. The reason I was surprised is that the language employed by the Board, which dates back to the Morrow decision in 1986, is extremely broad. For example, the idea that there is a procedure whereby the General Counsel “reviews cases dismissed by Board agents” raises several questions in my mind. First, it begs the question: doesn’t the General Counsel review dismissals before they are issued? Wouldn’t it make more sense to review dismissals for errors before they are issued rather than after the fact? Obviously it would make sense to review dismisals before they are issued and I do believe that currently occurs.
So I don’t believe the doctrine of General Counsel review has it genesis in catching mistakes after the fact where nothing has changed. Rather, it is for situations like in the O’Neil case where new facts or law make it apparent that the dismissal must be reversed. For example, in O’Neil, after the dismissal the charging party indicated that it never received the warning letter. That’s not an uncommon occurrence. It’s also not uncommon for a charging party to produce good cause for failing to file an amended charge on time. When these situations occur, it is apparent to all the parties that a dismissal will be reversed.
If you know a dismissal is going to be reversed based on new facts or law, it does make sense to allow a process like “General Counsel review.” However, even that process is not entirely satisfactory since it still requires an appeal to the Board and the accompanying wait for a Board decision. What the Board might want to consider is promulgating regulations allowing for a form of reconsideration before the General Counsel. Such a regulation could be modeled after PERB regulation 32410. This would alleviate the Board from having to spend time to consider appeals where it is apparent to all the parties that a remand is appropriate. The downside is that it adds another (potentially time consuming) layer into the unfair practice charge process.
I would prefer regulations codifying the concept of General Counsel review over the present situation. The current doctrine of General Counsel review is worded so broadly that it could be used to justify review where there has been no change in facts or law. I would have strong objections to the use of General Counsel review to allow the General Counsel to essentially change his or her mind without new facts or law. As I noted rhetorically above, if there is a worry about Board agents getting it right, any review should be done prior to the dismissal being issued. So any regulations allowing for General Counsel review should clearly define the limited situations where such review is appropriate.
Finally, I note that PERB regulation 32410 has been interpreted to apply to errors by the Board in a decision. Thus, in addition to new facts or law, a regulation allowing for reconsideration before the General Counsel could also capture errors like the one here.