MISCELLANEOUS ISSUES; REGULATIONS – Regulations Considered (By Number)

Single Topic for Decision 2453E

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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. (PERB Reg. 32620(c).) 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. (PERB Regs. 32620 and 32640.) An employer’s affirmative defense should be considered at the charge-processing stage of unfair practice proceedings only if raised in a verified and properly served position statement (PERB Regs. 32140(a) and 32620(c)), and only if the asserted defense rests on factual allegations that do not contradict those included in the charge, and which the charging party does not dispute. Under PERB Regulation 32635(b) a charging party may not present new charge allegations or new supporting evidence on appeal from a dismissal unless good cause is shown. The Board has generally found good cause to do so when the new allegations or supporting evidence could not have been discovered by the charging party through the exercise of reasonable diligence before the charge was dismissed.