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

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In resolving a dismissal appeal, the Board reviews OGC’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore).) At this stage of the case, a charging party’s burden “is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) Furthermore, “where a material factual dispute turns on the respondent’s state of mind,” the Board considers that motive is generally within the respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. The Board therefore imposes on a charging party a relatively low burden to allege facts tending to show the requisite state of mind. (Ibid.) Mere legal conclusions, however, are insufficient to state a prima facie case. (Lake Elsinore, supra, PERB Decision No. 2548, p. 18.) Moreover, although the Board does not resolve conflicting factual allegations, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 9.)