CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD – Interlocutory Appeal

Single Topic for Decision 2765E

View all topics for Decision 2765E

Full Decision Text (click on the link to view): Full Text

Whether good cause existed to accept a late-filed answer was an appropriate issue for an interlocutory appeal pursuant to PERB Regulation 32200. In order for an ALJ to join in the request and certify the interlocutory appeal to the Board itself, three elements must be found: (a) the issue involved is one of law; (b) the issue involved is controlling in the case; and (c) an immediate appeal will materially advance the resolution of the case. (Ibid.) Because the existence of good cause requires the application of a legal standard, it is an appropriate issue to certify to the Board. Because the ALJ construed the late-filed answer as resulting in the respondent admitting all material factual allegations in the complaint and charge, waiving all affirmative defenses, and waiving its right to a hearing, finding no good cause was sufficiently controlling to warrant an interlocutory appeal. Certifying an interlocutory appeal would have avoided duplicative briefing, so the appeal would have materially advanced the resolution of the case. (p. 18)