PERB Practice: Can I File A Reply Brief?

City of San Luis Obispo (2016) PERB Dec. No. A444-M (Issued on 12/13/16)

If you are familiar with PERB’s regulations, you probably know that the regulations do not provide for the filing of a reply brief in matters before PERB. The regulations simply provide for the filing of moving papers and then a response. But since the regulations do not expressly prohibit the filing of a reply brief, I often get asked whether reply briefs are allowed. In this case, PERB provides some more guidance on this issue.

Because PERB Regulations neither expressly permit nor preclude the submission of reply briefs, the Board has long-held that consideration of reply briefs is discretionary with the Board. In Los Angeles Unified School District/Los Angeles Community College District (1984) PERB Decision No. 408 (Los Angeles), the Board held that, “Where the response raises new issues, discusses new case law or formulates new defenses to allegations, the Board might well be persuaded to permit the complainant to submit a reply in order to aid the Board in its review of the underlying dispute.” In this case, the Board emphasized that the circumstances enumerated in the Los Angeles case “serve as illustrations, and not limitations, on the Board’s broad discretion to consider a reply.” The Board held that its authority to consider a reply brief rests in its general power to investigate unfair practice charges. In this particular case, the Board found that the submitted reply brief aided the Board in its review of the issues and did not prejudice the other side. Accordingly, the Board accepted and considered the reply brief.

Comments:

In my opinion, this case does not signal any change in practice by the Board. The “default” rule should still be that a reply brief is unnecessary. However, this case does demonstrate that in certain situations a reply brief may be warranted and welcome.
So if you have a case where you feel a reply brief is warranted, what should you do? Here’s my advice. Because whether a reply brief will be accepted depends in part on what the brief says, it doesn’t make sense to submit a “Request to File a Reply Brief” without the actual reply brief. So procedurally, I would treat it like a request to file an amicus brief in court. I would submit a “Request to File a Reply Brief” along with the reply brief itself. In the request, I would specify the grounds upon which you believe the reply brief should be considered. In terms of timing, you obviously want to do this as soon as possible after receiving the response. Ideally, any reply brief would be filed before a case is placed on the Board’s docket.