GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA – Type or Nature of Prior Proceeding

Single Topic for Decision 0885E

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Merit System Hearing Officer's decision not given collateral estoppel where issue before the Board was unlawful discrimination and neither the transcript of the merit system proceeding nor the decision of the Merit System Hearing Officer reflect that the issue of retaliation for protected activities was fully litigated at that hearing. Also, since the ambiguity of the rules of the merit system in issue, as to whether the defense of retaliation for EERA protected activities COULD be raised in a dismissal proceeding, supports a conclusion that collateral estoppel should not apply to bar litigation of that issue before PERB on the ground it COULD have been raised; p. 40. Board notes that a verbatim record of the proceedings is a factor in determining the "judicial character" of the prior proceeding.