January 2011 - National Labor Relations Board

10275 WITHDRAWAL/DISMISSAL OF COMPLAINTnot withdraw its charge, the complaint should be withdrawn by an order that includes adismissal of the charge and instructions for appealing the action. But see Sec. 10275.2.If an informal settlement agreement is entered into by all parties, withdrawal ofthe complaint is incorporated in the agreement. However, in 10(j) and (l) cases, thestandard settlement agreement should be altered to reflect that the complaint is withdrawnupon closing in compliance. Sec. 10146.4. Since a formal settlement agreementprovides for a Board Order, the complaint is neither withdrawn nor dismissed. Secs.10164–10170.10275.2 At Hearing, Prior to Introduction of EvidenceAfter a hearing has opened but before any evidence is introduced, the RegionalDirector has authority to withdraw part or all of a complaint, including over the objectionof the charging party, as long as there is “no contention that a legal issue is ripe foradjudication on the parties’ pleadings alone.” Sheet Metal Workers Local 28 (AmericanElgen), 306 NLRB 981 (1992). The charging party has a right to appeal the dismissal ofthe underlying charge to the General Counsel.10275.3 At Hearing, After Introduction of Evidence, Prior to Transfer to the BoardOnce relevant evidence is introduced at a hearing, the Regional Director no longerpossesses unreviewable authority under Section 3(d) to withdraw the complaint. At thatpoint, counsel for the General Counsel must move the Administrative Law Judge forpermission to withdraw all or part of a complaint. Sheet Metal Workers Local 28(American Elgen), supra.The following are some of the circumstances under which a request to withdrawthe charge might be made:On discovering lack of merit once evidence has been introduced duringthe hearing, counsel for the General Counsel (after appropriate RegionalOffice clearance) should make a motion to the Administrative Law Judgeto withdraw the complaint. Sec. 10388.3. However, the ALJ may dismissinstead of permitting withdrawal.If the charging party requests withdrawal of the charge once evidence hasbeen introduced, the request is subject to the consent of the ALJ. Sec.10276. On approval of the withdrawal, the complaint willl be dismissedby the ALJ. Sec. 102.9, Rules and Regulations.After full compliance with the terms of an informal settlement agreement,a motion to withdraw the complaint and to close the hearing should bemade.On the execution of a formal settlement agreement at this stage, the complaint isneither withdrawn nor dismissed. Secs. 10164–10170.Revised 01/11