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1100.02000 – Investigation of Charge

Because this case is an appeal from a dismissal and refusal to issue a complaint by the Office of the General Counsel, our inquiry at this stage is focused on the sufficiency of the charging party’s allegations. In addition, we may also consider information provided by the respondent, but only when such information is submitted under oath, complements without contradicting the facts alleged in the charge, and is not disputed by the charging party. When the respondent can establish an affirmative defense as a matter of law based on undisputed facts, the charge must be dismissed even when the charging party has otherwise established a prima facie case. In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law. Because the function of a Board agent investigating a charge is not to weigh evidence, determine credibility or make findings of fact, it is generally not appropriate at this stage of the proceedings to determine the employer’s true motive for taking adverse action.