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

Single Topic for Decision 2820M

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PERB reviews the Office of the General Counsel’s (OGC) dismissal de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) At this stage of an unfair practice case, the 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. (Ibid.) PERB does not resolve conflicting factual allegations or make conclusive factual findings. (Ibid.) Rather, PERB assumes that the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. (Ibid.) PERB therefore does not rely on the respondent’s factual statements if they explicitly or implicitly create a material factual conflict with charging party’s version of events, even if the respondent’s contentions appear better supported, or more persuasive, than the charging party’s contrary allegations. (Ibid.) PERB directs OGC to issue a complaint if it finds one or more contested, outcome-determinative facts (or mixed questions of law and fact), or if the parties’ positions reveal contested, colorable legal theories. (Id. at p. 3.) (p. 2.)