CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD – De Novo Review; Standard of Review by Board

Single Topic for Decision 2721M

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In resolving an appeal of a dismissal, PERB reviews the Office of General Counsel’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore); City of San Jose (2013) PERB Decision No. 2341-M, p. 47.) When the sufficiency of a charge turns on interpreting a statute, contract, or employer rule or policy, the Board must accept the plain meaning of the language at issue if it is “clear and unambiguous on its face.” (County of Monterey (2018) PERB Decision No. 2579-M, p. 8.) If the language is ambiguous, “the parties must be afforded the opportunity to offer evidence in support of their respective interpretations at a formal hearing.” (Ibid.) At the charge investigation stage, “the appropriate question is not which of two competing interpretations . . . is the more plausible, but whether the language in dispute is reasonably susceptible to the charging party’s interpretation and whether that interpretation supports a viable, i.e., non-frivolous, theory of liability under the applicable PERB-administered statute.” (Ibid.)