CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ – Motions

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1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

ALJ should have granted union’s motion to amend. The ALJ ruled on the merits of the issue prior to the close of the hearing, which is only appropriate if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing on one or more issues unnecessary. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, pp. 13 & 15.) While there can be occasions in which an ALJ may, on her or his own accord, raise potential summary judgment on a claim, the ALJ here did so without notice to the parties and without an adequate substantive basis. Because the ALJ sought to resolve a theory on the merits without hearing evidence on it, he should have applied “the standard governing the pre-complaint investigation of an unfair practice charge.” (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) In those circumstances, a hearing is required if there were, as here, “contested, colorable legal theories.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13.)