The Public Employee Relations Board (“PERB”) recently issued a decision in Service Employees International Union, Local 521 v. County of Fresno, PERB Decision No. 2352-M, clarifying that a request to withdraw an unfair practice charge after a proposed decision is issued will be granted but only with prejudice. In that case, SEIU sought to withdraw its unfair practice charge after the issue had been fully litigated—i.e. hearing, proposed decision, exceptions to proposed decision all completed. PERB ruled that permitting the non-prevailing party (in this case, SEIU) to dismiss an unfair practice charge without prejudice at that point in the process would leave open the possibility that they could refile and essentially permit the party to “rewind the clock and undo the litigation.” This, PERB determined, impermissibly undermined the need for finality in the administrative adjudication process.

Comment: PERB’s ruling makes some sense on a practical level, but it means that employee associations need to be very aware of the timing of settlement decisions. The Board did not explain here at what point it deems the litigation to be complete such that it will only entertain requests to withdraw the unfair practice charge with prejudice. Is it after the hearing, after the proposed decision, and/or before exceptions are filed? In order to preserve an association’s right to re-litigate an unfair practice charge, we think it is safest to file any requests for dismissal without prejudice before the completion of a hearing.

If you have any questions, please contact Jennifer Stoughton at jennifer@majlabor.com.