Decision 2708E – Solano County Community College District

SF-CE-3254-E

Decision Date: April 16, 2020

Decision Type: PERB Decision

Description:  Respondent Solano County Community College District (District) appealed an ALJ’s notice of withdrawal and dismissal of complaint. The District contended that the ALJ improperly granted charging party Ginger Lynn Cain’s (Cain) request for withdrawal of her unfair practice charge without determining whether it was with or without prejudice, as expressly required by PERB Regulation 32625. The Board found that the ALJ’s notice of withdrawal was clear error insofar as the regulation gave the ALJ no authority to grant withdrawal of a charge without such a determination.

Disposition:  The Board granted the District’s appeal and dismissed Cain’s unfair practice charge without prejudice.

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Decision Headnotes

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.06000 – Withdrawal of Charge

The Board found that the ALJ’s notice of withdrawal did not comply with the express requirements of PERB Regulation 32625 because it failed to indicate whether the withdrawal was with or without prejudice. This was clear error insofar as the regulation gave the ALJ no authority to grant withdrawal of the charge without such a determination. At a minimum, the ALJ should have solicited charging party’s intent and the employer’s position before granting the withdrawal. Similarly, when the employer brought the error to her attention, the ALJ should have undertaken the required determination and corrected the notice to comply with the regulation. (p. 3.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.06000 – Withdrawal of Charge

In this case (like most cases except those involving a continuing violation), the distinction between a withdrawal with prejudice and one without prejudice is meaningless because the underlying claims were already more than six-months old at the time of the withdrawal, and thus could not form the basis for a new complaint. (p. 3.)