ABC Unified School District (American Federation of State, County and Municipal Employees) (PERB 0831EB)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
e
AMERICAN FEDERATION OF 	STATE,
COUNTY AND 	MUNICIPAL 	EMPLOYEES,
AFL-CIO, 	Local 2229,
Charging 	Party,
V.
ABC 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2860
Request 	for 	Reconsideration
PERB Decision No. 	831
PERB Decision No. 	831b
March 27, 	1991
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Appearances: 	Reich, 	Adell & Crost by John Rubin, 	Attorney, 	for
American Federation of State, 	County and Municipal 	Employees,
AFL-CIO, 	Local 2229; Atkinson, Andelson, 	Loya, 	Ruud & Romo by
James C. 	Romo, 	Attorney, 	for ABC Unified School District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	On November 16, 	1990, 	the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	issued an 	interim
order 	granting 	the ABC 	Unified 	School 	District's 	(District)
request 	for reconsideration. 	The Board has 	now considered the
District's 	opposition the American Federation of 	State, 	County
and Municipal Employees, 	AFL-CIO, 	Local 2229's 	(AFSCME) 	request
to withdraw the 	underlying unfair practice 	charge.1
The 	District's 	opposition to the withdrawal 	of 	the
underlying charge is 	summarized as 	follows: 	(1) 	the District
never agreed to the withdrawal 	in the 	first 	instance;
(2) 	AFSCME's 	claim of a 	settlement of the dispute as 	a basis 	for
requesting withdrawal 	did 	not 	include 	an 	agreement 	to 	settle 	the
1The Board issued PERB Decision No. 	831 	on August 	3, 	1990,
granting 	the 	charging party's 	request 	that 	it be permitted 	to
withdraw 	its 	underlying unfair practice 	charge.
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issue 	of whether a 	contractual waiver 	survives 	the 	expiration of
an agreement; 	(3) 	PERB has no authority to vacate that portion of
the 	administrative 	law 	judge's 	(ALJ) 	proposed decision that had
become 	final; 	and 	(4) 	PERB 	should decide an unsettled area of
law. 	AFSCME, 	on the other hand, 	urges the Board to use its
discretionary 	authority 	to 	allow the withdrawal 	because 	the
settlement 	between the parties 	provided 	a 	satisfactory 	remedy 	to
AFSCME.
For the 	reasons 	stated below, 	we 	reaffirm the 	order 	in PERB
Decision No. 	831.
DISCUSSION
When dealing with a request to withdraw a charge, 	the 	Board
is 	guided by two 	separate regulations, 	PERB Regulations 	32625 	and
32320.2 Regulation 32625 	states, 	in pertinent part:
If 	the complaint has 	issued, 	the Board agent
shall 	determine whether 	the withdrawal 	shall
be with or without prejudice. 	If, 	during
hearing, 	the respondent objects to
withdrawal, 	the hearing officer may refuse to
allow it. 	[Emphasis 	added.]
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	The District, 	in its
points 	and authorities, 	relies 	on Regulation 35015, 	which was
repealed in 	1978, 	and which provided, 	in pertinent part:
If the formal hearing has 	commenced, 	the
withdrawal 	shall 	be with or without prejudice
according to 	the discretion of 	the Board.
The withdrawal 	shall be allowed; 	except 	if
the 	formal hearing has 	commenced, 	the
respondent may 	file objections 	to 	the
withdrawal 	on the basis 	of which 	the 	Board
may refuse 	to 	allow the withdrawal.
[Emphasis 	added.]
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This 	section allows 	the 	Board 	agent discretion to 	rule 	on the
request, 	and, 	therefore, 	differs 	from its predecessor in that the
request may never be heard by the 	Board 	itself, 	absent 	an
administrative appeal. 	After exceptions 	have been filed, 	the
Board is 	guided by PERB Regulation 32320, 	which 	states, 	in
pertinent part:
(a) 	The Board itself may:
(1) 	Issue a decision based on the record of
hearing, or
(2) 	Affirm, 	modify or reverse the proposed
decision, 	order the 	record reopened 	for the
taking of 	further evidence, 	or take 	such
other action as 	it 	considers proper.
(Emphasis 	added.)
Regardless 	of which regulation is 	relied on, 	it 	is 	clear that the
Board, 	or its 	agent, 	has 	the discretion to grant or deny the
request. 	The 	Board has 	generally permitted a 	charging party to
withdraw an underlying charge. 	(See Norwalk-La 	Mirada 	Unified
School District 	(1978) 	PERB order No. 	Ad-38; 	Gridley Union High
School District 	(1989) 	PERB Order No. 	Ad-182; 	Eureka City School
District 	(1989) 	PERB Order No. 	Ad-184; 	San Francisco Unified
School District 	(1989) 	PERB Order No. 	Ad-200; 	Compton 	Community
College District 	(1988) 	PERB Decision No. 	704; 	and California
State University 	(CFA) 	(1990) 	PERB Decision No. 	848-H.)
The 	District 	argues 	that 	some portions 	of 	the proposed
decision are 	final 	inasmuch as 	it 	filed 	exceptions 	to 	only two 	of
the three 	essential 	findings 	by the ALJ. 	The District claims
that 	the only matters before 	the Board were: 	(1) 	whether a 	clear
and unequivocal waiver of 	the 	right 	to bargain 	survives 	the
w	
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expiration of the contract, 	and 	(2) 	whether changing the benefit
levels was 	covered by the 	contractual waiver.
In support of 	its argument, 	the District cites 	San Francisco
Community College District 	(1990) 	PERB Decision No. 	703(c) 	for
the proposition that 	"[t]he Board 	. 	. 	. 	does not have
jurisdiction to 	nullify or vacate 	a 	final 	decision." 	The
District's position is totally without merit. 	The Board, 	in an
early decision, 	held that while a party's 	failure to 	except to an
issue 	serves 	as 	a waiver of that party's 	right to except, 	it does
not preclude 	the 	Board 	from reviewing unappealed matters. 	(Rio
Hondo Community College District 	(1979) 	PERB Decision No. 	87.)
Because 	the proposed decision was 	appealed 	to 	the 	Board by 	the
District, 	it was not final. 	Furthermore, 	the Board, 	when
reviewing the cases before 	it on exceptions, 	may, 	in accordance
with Regulation 32320(a)(2):
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Affirm, 	modify or reverse the proposed
decision, 	order the 	record reopened 	for the
taking of 	further evidence, 	or take 	such
other action as 	it considers proper.
(Emphasis 	added.)
Therefore, 	the 	Board clearly has 	discretion to 	allow the
withdrawal 	of 	the 	charge 	and 	to 	vacate 	the 	underlying proposed
decision. 	Furthermore, 	where all 	the 	issues determined by the
proposed 	decision are 	inextricably 	intertwined, 	the 	Board will
not be precluded 	from deciding 	any 	issue 	in the 	appealed decision
which relates 	to the 	appealed matters.
'In Decision No. 	703(c), 	the Board was referring to its
holding in Decision No. 	703(b). 	However, 	in both cases, 	the
decision was 	final 	in that 	neither party 	sought 	judicial 	review.
'
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In this 	case, 	the District asserts 	that the contractual
provision at 	issue 	remains 	unchanged 	in the 	current 	contract
between the District and AFSCME. 	Therefore, 	the District wishes
to 	continue 	in the participation of 	the 	litigation to 	allow 	"the
parties 	to 	continue 	their 	relationship without 	unnecessary
arguments 	over the 	correct 	legal 	interpretation" 	of 	the disputed
contract 	section. 	However, 	despite the 	continuation of 	the 	same
contract 	language, 	the parties 	have 	settled the dispute over
health benefits 	that 	gave 	rise to 	the 	filing of 	the 	charge.
The 	evidence 	that 	the parties 	settled 	their dispute 	over
health 	insurance benefits 	is 	uncontradicted. 	The 	District's
declaration 	in 	support 	of 	its 	opposition to AFSCME's 	motion to
withdraw clearly 	states 	that 	the parties' 	settlement 	resulted 	in
an agreement which was 	incorporated 	into 	the 	current 	contract
with AFSCME. 	The Board, 	in determining whether to grant a
party's 	motion to withdraw, 	will 	not 	ignore a 	common 	sense
approach. 	The Board will 	not decide these matters 	in a vacuum
and in this 	case, 	the parties' 	settlement removes 	an essential
element 	of 	controversy.
ORDER
For the 	reasons 	stated above, 	the 	Board hereby REAFFIRMS 	the
decision and order in PERB Decision No. 	831.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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