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1311.02000 – Procedural Issues

In reviewing whether a Board agent has conducted a proper investigation, the Board generally has looked at whether or not the Board agent abused his or her discretion. Our procedures provide no guarantee or entitlement to an evidentiary hearing in a representation proceeding. Whenever a petition regarding a representation matter is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition. (PERB Regulation 33237(a).) PERB Regulation 33300 requires that a Board agent serve a notice of hearing if he or she determines that a hearing is necessary. Board agents routinely use an order to show cause in representation investigations to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. The order to show cause process balances the interests of the parties by providing an employer the means to demonstrate the existence of a material factual issue, while protecting employee representation rights by assuring that a hearing and the accompanying delay in the exercise of employee representation rights will occur only where a material factual issue exists. A “fixed anticipatory prejudgment” against a party must be shown to establish bias sufficient for Board agent disqualification. Prejudgment is established through statements or conduct by the Board agent indicating a clear predisposition against a party. Erroneous legal or factual rulings, in themselves, do not indicate bias. PERB Regulation 32155(c) requires that any request that a Board agent disqualify himself or herself be made under oath and specifically set forth all facts supporting it. PERB Regulation 32155(c) does not require the concurrence of the parties to the identity of a replacement Board agent. The Board agent’s statement in the order to show cause, that the academy had failed thus far to provide sufficient evidence to rebut the presumption that the proposed unit was appropriate, did not indicate bias but rather a candid and appropriate appraisal of the academy’s position.