MISCELLANEOUS ISSUES; REGULATIONS – Regulations Considered (By Number) (Continued)
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1503.03000 – Regulations Considered (By Number) (Continued)
A Board agent may, either on a motion by the respondent or with notice and on the agency’s own motion, properly dismiss a complaint on a pre-hearing motion to dismiss where the motion establishes failure to prosecute or an affirmative defense as a matter of law based on undisputed facts. (pp. 19-20, 24-25.) However, in the absence of a hearing, a Board agent is not authorized to resolve factual disputes or make credibility determinations to dismiss an unfair practice case, whether the dismissal occurs during the pre-complaint investigation, or after a complaint has issued but before hearing. (PERB Reg. 32207.) Because in this case, the motion to dismiss asserting failure to prosecute and laches was based on disputed material facts, including the timing and significance of a medical condition suffered by a witness, the Board reversed the dismissal and remanded the matter for hearing within a reasonable time to adjudicate the complaint’s allegations. (pp. 2-3.)