CASE PROCESSING PROCEDURES; CHARGE – Investigation of Charge
Single Topic for Decision 2431M
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1100.02000 – Investigation of Charge
While PERB Regulation 32620 requires a Board agent investigating a charge to assist the charging in stating information that is required, no similar requirement is extended to affirmative defenses not raised by a respondent. Although a Board agent must accept the plain language of a contract or local rule where it is clear and unambiguous, where there is a legitimate dispute over the meaning of a contract or local rule, the parties must be afforded the opportunity to offer evidence in support of their respective contentions before the matter is dismissed. The question is not whether the charging party has asserted the most plausible interpretation of a contract or local rule, but whether it has asserted a plausible, i.e., non-frivolous interpretation that supports a prima facie allegation of an unfair practice. The Board reversed dismissal of a charge alleging a unilateral change from expired contract provision and established practice where contract language at issue was reasonably susceptible to more than one meaning and respondent’s position statement included evidence supporting existence of established practice alleged by the charging party.