County of Fresno (PERB 2352M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party,
V.
COUNTY OF FRESNO,
Respondent.
Case No. SA-CE-673-M
PERB Decision No. 2352-M
January 29, 2014
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 521; Catherine E. Basham, Senior Deputy County
Counsel, for County
of
Fresno.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Service Employees International Union, Local 521
(SEIU) to the proposed decision
of
a PERB administrative law judge (ALJ). The complaint,
and underlying charge, alleges that in June 2010, the County
of
Fresno (County) changed a
policy by amending a personnel rule concerning mandatory employee furloughs to include
Bargaining Units 3, 4 and 36 without negotiating to agreement over the decision and/or effects
of
the policy change. By this conduct, it is alleged that the County failed and refused to meet
and confer in good faith in violation
of
Government Code section 3505
of
the Meyers-Milias
Brown Act. 1 At the formal hearing, the ALJ granted SEIU's motion to amend the complaint to
allege that by this conduct, the County repudiated the Compensation, Reopener and Full
Understanding provisions in the parties' memorandum of understanding applicable to
1 The MMBA is codified at Government Code section 3500 et seq.

Bargaining Units 3, 4 and 36. It is also alleged that by this conduct, the County interfered with
the rights
of
bargaining unit employees to be represented by SEIU in violation
of
section 3506
and denied SEIU the right to represent unit members in violation
of
section 3503.
The formal hearing was held on October 17, 2011. On January
5,
2012, the case was
submitted for decision following receipt
of
post-hearing briefs. The ALJ issued the proposed
decision on June 22, 2012. After a request for extension
of
time was granted, on July 30, 2012,
SEIU filed exceptions to the proposed decision and a request for oral argument. On August 20,
2012, the County filed its response.
On December 19, 2013, SEIU sent a letter to the Board, which states, in pertinent part:
On behalf
of
our client, we hereby withdraw the SEIU' s
Exceptions to the Administrative Law Judge's Proposed
Decision. We also hereby withdraw the underlying unfair
practice charge without prejudice.
By letter from the PERB Appeals Assistant dated December 30, 2013, the Board sought
clarification from the parties regarding the possible withdrawal
of
this case. The letter states:
Having received no objection from the respondent to the
withdrawal
of
the unfair practice charge, we will assume that it is
the parties' mutual intention to request that the complaint and
underlying unfair practice charge be dismissed and the proposed
decision
of
the administrative law judge be vacated, and will act
on that request forthwith.
	If
that is not the parties' mutual
intention, please so advise by Friday, January 10, 2014, providing
your respective positions.
As stated in its response letter dated January 10, 2014, the County does not object to
SEIU' s withdrawal of its exceptions to the proposed decision, but does object to its request to
withdraw the underlying unfair practice charge without prejudice. The County believes that
the proposed decision of the ALJ is well-reasoned. As explained by the County, "[i]t would be
an unnecessary waste of the time and resources of both the parties and this Board if SEIU
Local 521 were to relitigate this issue if furlough of employees in these bargaining units should
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become necessary at some point in the future." Accordingly, the County requests that the
Board exercise its discretion to either:
1.	
Deny the request to withdraw the unfair practice charge and
deem the proposed decision
of
ALJ Bologna final; or
2.	
Grant the request to withdraw the unfair practice charge but
make such withdrawal with prejudice.
(Underlying in the original.)
The Board has the discretion to grant or deny requests to withdraw and dismiss cases
pending before the Board itself. (PERB Reg. 32320, subd. (a)(2) ["The Board itself may:
...
take such other action as it considers proper. "];2 State
of
California (Department
of
Personnel
Administration) (2010) PERB Decision No. 2152-S; Grossmont-Cuyamaca Community
College District (2009) PERB Order No. Ad-380; Oakland Unified School District (1988)
PERB Order No. Ad-l 71a; ABC Unified School District (1991) PERB Decision No. 831 b.)
SEIU requests withdrawal
of
its exceptions. The County interposes no objection. The
Board has a longstanding policy favoring voluntary settlement
of
disputes. (Dry Creek
Elementary School District (1980) PERB Order No. Ad-81.) Given that both sides agree, the
Board finds that withdrawal
of
the exceptions is in the best interests
of
the parties and
consistent with the purposes
of
the MMBA to promote harmonious labor relations. Moreover,
absent special circumstances, exceptions may be withdrawn unilaterally by request
of
the party
who filed them. Assuming no exceptions were filed by the opposing side, by operation
of
PERB Regulation 32305, subdivision (a), upon granting a request to withdraw exceptions, the
underlying proposed decision becomes final. 	Such a withdrawal serves the interests
of
the
parties, bringing finality and closure to a case that has been fully litigated by leaving the ALJ' s
decision in place.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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Here, the request for withdrawal goes farther, reaching not only the exceptions
but
the
unfair practice charge itself. This is where SEIU and the County part ways. SEIU requests
withdrawal
of
the unfair practice charge without prejudice. The County has no objection to
withdrawing the unfair practice charge so long as it is withdrawn with prejudice. We agree
with the County and grant SEIU's request to withdraw its unfair practice charge but not
"without prejudice."
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. An
informal settlement conference is held with a Board agent serving as a mediator/facilitator to
assist the parties in resolving the dispute. From there,
if
the case is not settled, it goes to an
evidentiary hearing. Litigating a case often entails the retention
of
counsel, the preparation
of
witnesses and documentary evidence, the drafting
of
briefs and all the additional time,
resources and effort involved in participating in an evidentiary hearing. The hearing is
conducted by a PERB ALJ who then issues a proposed decision resolving the disputed issues.
At this point in the process, permitting SEIU, 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. A non-prevailing party has the right to appeal an
unfavorable decision but does not have the right to act as
if
the case was never litigated and did
not result in a decision on the merits. 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.
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With respect for the administrative adjudication process, and recognition
of
the need for
finality with respect to the disposition
of
fully litigated issues, the Board grants SEIU' s request
to withdraw its unfair practice charge, but for all the reasons provided above, we do so with
prejudice.
ORDER
The request by the Service Employees International Union, Local
521
in Case
No. SA-CE-673-M is hereby GRANTED in part. The exceptions to the proposed decision and
the request for oral argument are deemed withdrawn. The unfair practice charge is
DISMISSED WITH PREJUDICE. The complaint is dismissed and the proposed decision is
hereby vacated.
Members Huguenin and Winslow joined in this Decision.
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