CASE PROCESSING PROCEDURES; CHARGE – Dismissal of Charge; Appeal

Single Topic for Decision 3048M

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In resolving an appeal from a dismissal, the Board reviews OGC’s determinations de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2 (San Francisco).) At the pre-complaint stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven, would state a prima facie case. (Ibid., citing County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) The Board assumes that charging party’s factual allegations are true and views them in the light most favorable to the charging party. (San Francisco, supra, p. 2; Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. (San Francisco, supra, p. 2; Cabrillo I, supra, p. 8.) If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), OGC should issue a complaint. (San Francisco, supra, pp. 2-3; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298 M, p. 13.) Furthermore, a complaint must ordinarily issue when there are contested, colorable legal theories. (San Francisco, supra, p. 3; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13.) In contrast, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (San Francisco, supra, p. 3; Cabrillo I, supra, PERB Decision No. 2453, p. 9.) (pp. 2-3.)