All notes for Subtopic 1102.01000 – Pre-Arbitration
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
When a charge or complaint alleges multiple claims that are factually or legally interrelated, PERB must first determine whether such interrelated claims are “independent” or “derivative,” following the principle that a claim is independent of another if it can potentially prevail while the other does not. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) For interrelated claims that are independent of one another, the party seeking deferral must separately show that each claim satisfies the applicable deferral test, or else PERB refrains from deferring any of the interrelated claims. (Id. at pp. 10-12.) In contrast, if a claim is derivative of another, the party seeking deferral need not make a separate showing that the derivative claim meets the applicable deferral test. (Id. at p. 10.) (pp. 13-14.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
If a respondent establishes all four elements needed to prevail in a pre-arbitration deferral motion, then PERB follows one of two procedures, depending on which public sector labor relations statute covers the parties. Under the statutes referenced in PERB Regulation 32620(b)(5)—including the Dills Act—a successful deferral motion leads PERB to dismiss the unfair practice charge. In contrast, under the labor relations statutes referenced in PERB Regulation 32620(b)(6), PERB merely places the charge in abeyance. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) However, this is a distinction without a difference. After PERB defers a charge to arbitration and places it in abeyance pursuant to Regulation 32620(b)(6), the case normally remains in abeyance until arbitration is complete. At that point, PERB dismisses the charge unless the charging party can disprove one or more elements of the post-arbitration deferral test discussed post. If the charging party believes one of these circumstances exists, it normally asks PERB to take its charge out of abeyance and amends it to include all needed allegations about the arbitration process and/or arbitration decision. (Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, pp. 3-6.) A slightly different procedure is available under the statutes covered by PERB Regulation 32620(b)(5). Under those laws, pre-arbitration deferral leads PERB to dismiss the unfair practice charge, meaning there is no opportunity to file an amended charge. Instead, the charging party can file a new charge that alleges the original violation(s) as well as the circumstances preventing PERB from continuing to defer. Therefore, under each PERB-administered statute, after PERB issues a pre-arbitration deferral order, the charging party has a later opportunity to ask PERB to revisit that conclusion post-arbitration. (pp. 10-12.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Because PERB will not defer where it is futile to do so, the relevant statutory standards that the arbitrator must apply include those related to both liability and remedy. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 55-56 [deferral improper where contract required grievant to show employer violated an “express term” in an “arbitrary, capricious or discriminatory manner,” which deviated from PERB standards].) (p. 10.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Dills Act section 3514(a)(2) sets forth a futility exception, while other exceptions flow from the fact that deferral is a discretionary doctrine. For instance, even if all deferral elements are satisfied, PERB will not defer claims alleging interference with or retaliation for filing a PERB charge or participating in PERB processes. (Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39.) (p. 9, fn. 5.) Moreover, deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. (State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S, pp. 8-9.) Accordingly, State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S, where the Board deferred to arbitration even though the charging party’s exclusive representative would not arbitrate his claims, is no longer good law on this point. (p. 17, n. 16.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
When PERB considers deferral before the arbitration process is complete (including where the charging party union has not yet filed a grievance), the party seeking deferral has the burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no deferral exception applies. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) (p. 9; id. at p. 19.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.) more or view all topics or full text. |
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| 2926S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
A party has the right to ask PERB’s Office of the General Counsel (OGC) to defer to arbitration pursuant to PERB Regulation 32620(b)(5)-(6). Irrespective of whether a party asked OGC for deferral at an earlier stage, it can plead deferral as an affirmative defense in its answer to a complaint and file a deferral motion pursuant to Regulation 32190(a). But no party has a right, at any stage of PERB proceedings, to unilaterally “elect” deferral. (p. 6, fn. 2.) more or view all topics or full text. |
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| 2803E |
Oxnard Union High School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The most critical prong of the deferral test is often whether the contract and its meaning “lie at the center of the dispute.” To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) “[I]t is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid.; Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.) Second, resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (Santa Clara, supra, PERB Order No. Ad-485-M, p. 8.) This condition may be met if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue. (Id. at p. 8, fn. 6.) If resolution of the alleged unfair practice requires application of statutory legal standards, and “there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles,” deferral is not appropriate. (Id. at p. 8.) The District did not carry its burden of establishing that deferral is appropriate where the parties’ CBAs contravene the neutral contractual interpretation standards PERB applies in a unilateral change case (see Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 25-26 [deferral inappropriate both because contract limited arbitrator from providing full make-whole remedy and because contract limited arbitrator from fully considering the issues at stake] and limit the arbitrator to only the interpretation or application of a contract term, which would not resolve the issues arising from the District’s failure to bargain the effects of its decisions. (See Pleasanton Joint School District (1986) PERB Decision No. 594, pp. 2-6 [deferral inappropriate where contract limited arbitrator to finding violation of “express terms,” thereby preventing arbitrator from considering full breadth of issues at stake in unilateral change case].) more or view all topics or full text. |
46 | 110 | 01/26/22 |
| 2803E |
Oxnard Union High School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
In County of Santa Clara (2021) PERB Order No. Ad-485-M, PERB explained how the deferral test applies if an unfair practice charge contains multiple claims. Three principles are paramount. First, if a claim is purely derivative—meaning that a charging party cannot establish it without also establishing another claim—then PERB defers the derivative claim if and only if the claim it derives from satisfies the deferral test. (Id. at pp. 9-10.) Second, if multiple claims can be established independently of one another but they are factually or legally interrelated, then PERB does not defer any of them unless each claim meets the deferral test. (Id. at pp. 10-12.) This rule serves to prevent unnecessary piecemeal litigation. (Ibid.) Finally, if multiple independent claims are neither factually nor legally interrelated, then PERB applies the deferral test separately to each claim and may defer any of them depending on how the test applies to each respective claim. (Ibid.) Thus, a charging party cannot avoid deferral of one claim by choosing to include in the same charge an unrelated, non-deferrable claim. more or view all topics or full text. |
46 | 110 | 01/26/22 |
| 2803E |
Oxnard Union High School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 19-20; County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7.) more or view all topics or full text. |
46 | 110 | 01/26/22 |
| A496M |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid.) (p. 6.) more or view all topics or full text. |
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| A496M |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
“PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53.) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) (p. 5.) more or view all topics or full text. |
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| A496M |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text. |
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| 2796E |
Bellflower Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7). more or view all topics or full text. |
46 | 85 | 11/08/21 |
| A485M |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
When considering whether to defer an unfair practice charge to arbitration, PERB applies a three-part test: (1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the respondent is willing to waive contract-based procedural defenses to the grievance or arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning lie at the center of the dispute. (p. 6.) The contract and its meaning lie at the center of the dispute when (1) the alleged unfair practice is arguably prohibited by the collective bargaining agreement and (2) resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (p. 8.) PERB determines the appropriateness of deferring an allegation on a case-by-case basis by focusing on whether an arbitrator would necessarily have to resolve the statutory unfair practice allegation. (p. 18.) Deferral is not appropriate unless all factually or legally interrelated allegations are subject to deferral. (pp. 9-12.) The Board concluded the charge was not subject to deferral because, while three of four factually interrelated allegations met the criteria for deferral, the fourth allegation did not. (pp. 12-23.)
Categorically barring retaliation or discrimination allegations from deferral to arbitration is not appropriate because parties may agree to have an arbitrator decide a statutory unfair practice issue. (pp. 15-18.) While a contractual just cause provision typically does not support deferral of a retaliation or discrimination allegation, deferral may be appropriate when the agreement contains a non-discrimination clause. (p. 19.) A retaliation allegation was subject to deferral when the collective bargaining agreement contained a non-discrimination clause prohibiting the employer from discriminating against employees because of union activity, and the charge alleged a steward was denied paid release time because of her attendance at a meeting on behalf of the union. (pp. 20-22.) more or view all topics or full text. |
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| A482M |
County of Santa Clara
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
To prove repugnancy, the charging party must show the arbitration award is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” Under this standard, the “possibility that this Board may have reached a different conclusion in interpreting the parties’ agreement and the evidence does not render the award unreasonable or repugnant.” (p. 9, fn. 11.) more or view all topics or full text. |
45 | 59 | 11/02/20 |
| A482M |
County of Santa Clara
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Because a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings substantially limits the charging party’s subsequent ability to pursue the allegations in the charge, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 10-11.) more or view all topics or full text. |
45 | 59 | 11/02/20 |
| 2455E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB will not defer to arbitration unless the arbitration process is final and binding; binding arbitration provisions do not survive expiration of the contract; because the contract had expired by the time the conduct at issue arose, binding arbitration was not available and therefore the dispute was not subject to deferral. more or view all topics or full text. |
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| 2391H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB will prospectively not defer unfair practice charges filed under HEERA that allege retaliation for filing PERB charges or otherwise participating in PERB processes. Under the facts of this particular case, where Charging Party elected to arbitrate his appeal of his suspension and termination, and because his claim that his termination was motivated by his filing this unfair practice charge was clearly presented to the arbitrator for consideration, deferral to that arbitration procedure is appropriate. Since Charging Party thwarted the arbitration process, most particularly by walking out of the hearing in the middle of the proceedings, thereby preventing the arbitrator from considering unfair practice claims, he cannot now come before PERB and seek to litigate unfair practice claims of retaliation and discrimination. more or view all topics or full text. |
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| 2357E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Pursuant to the “futility exception” of EERA section 3541.5, subdivision (a)(2), deferral of individual employee’s charge alleging retaliation for his protected activity was not appropriate where the exclusive representative was unwilling to arbitrate the employee’s grievance. The statutory “futility exception" recognizes the voluntary resolution of labor disputes, is absent when an individual employee who seeks to vindicate statutory rights is not himself or herself a “party” to the grievance machinery to which the matter has been deferred, and therefore has no control over whether the dispute will be heard on its merits. more or view all topics or full text. |
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| 2332E |
Santa Ana Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Contractual limitation on the scope of an arbitrator’s authority to fully remedy contract violations that are also unfair practices could render resort to arbitration futile within the meaning of EERA section 3541.5(a)(2). A dispute over whether a contractual provision is an express term of the parties’ collective bargaining agreement or not fails to meet the statutory requirement of EERA section 3541.5(a)(2) that the grievance machinery cover “the matter at issue” for deferral purposes. When asking an arbitrator to decide whether a collective bargaining agreement contains a particular provision would exceed the arbitrator’s authority, resort to arbitration would be futile under EERA section 3541.5(a)(2). Resort to arbitration would be futile under EERA section 3541.5(a)(2) when a union lacks authority under the relevant contract to pursue grievances in its own name for the disputed matters. more or view all topics or full text. |
38 | 51 | 10/03/13 |
| 2155M |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED IN PART ON OTHER GROUNDS by Santa Clara Valley Water District (2013) PERB Decision No. 2349- M. * * *
An arbitration clause in a grievance process does not continue in effect after the expiration of the contract except for disputes that: (1) involve facts and occurrences that arose before expiration; (2) involve post-expiration conduct that infringes on rights accrued or vested under the agreement; or (3) under normal principles of contract interpretation, survive the expiration of the agreement. more or view all topics or full text. |
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| 1967S |
State of California (Department of Corrections)
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral not appropriate here because the State failed to: (1) raise the affirmative defense of deferral in a timely manner; and (2) meet the requirements for deferral set out in Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a. The Board rejected the State’s argument that the complaint “does not state facts sufficient to constitute a cause of action” noting that it was overly broad and did not reasonably put either the Board or opposing counsel on notice of the deferral claim. more or view all topics or full text. |
32 | 109 | 06/27/08 |
| 1730E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral to arbitration is not appropriate in this matter. The party who asserts deferral as an affirmative defense must allege facts that evidence the three prongs required by Collyer Insulated Wire. Neither party has summarized or attached a copy of the current CBA provision alleged to have been violated and so it is impossible to determine if the grievance and charge cover the same subject. more or view all topics or full text. |
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| 1659H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The collective bargaining agreement provides for final and binding arbitration of grievances. The definition of grievances does not limit the issues that can be grieved under the CBA. Since SETC alleged violations of the CBA, under PERB Regulation 32620(b)(6), the Board must place the charge in abeyance and dismiss the charge at the conclusion of the grievance/arbitration process unless the charging party shows that the settlement or arbitration award is repugnant to HEERA. more or view all topics or full text. |
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| 1566S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Agreement’s article on changes covers subject of charge and provides that any dispute as to coverage also goes to the arbitrator. Thus deferral is appropriate. Board finds that where conduct is arguably prohibited by the agreement between the parties, the board must defer to arbitration all multiple legal theories arising from that conduct. This ensures that there is one forum for resolution of a dispute, elimination of overlapping and duplicative proceedings, and promotion of more timely resolution of disputes that contribute to employer-employee stability. If a party fails to provide support for its contention that an arbitrator’s remedy can not resolve a derivate violation the board may dismiss that violation and also refer it to arbitration with along with the initial charge. more or view all topics or full text. |
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| 1567S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Agreement’s article on changes covers subject of charge and provides that any dispute as to coverage also goes to the arbitrator. Thus deferral is appropriate. Board finds that where conduct is arguably prohibited by the agreement between the parties, the board must defer to arbitration all multiple legal theories arising from that conduct. This ensures that there is one forum for resolution of a dispute, elimination of overlapping and duplicative proceedings, and promotion of more timely resolution of disputes that contribute to employer-employee stability. If a party fails to provide support for its contention that an arbitrator’s remedy can not resolve a derivate violation the board may dismiss that violation and also refer it to arbitration with along with the initial charge. more or view all topics or full text. |
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| 1564E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board believes that parties to a negotiated grievance procedure, even one that does not end in binding arbitration, should be encouraged to utilize the procedure to settle disputes at the most informal level. more or view all topics or full text. |
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| 1571E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral is proper where the alleged unfair practice is arguably prohibited by the parties’ agreement. It is not sufficient for the agreement to merely cover or discuss the matter; the conduct alleged to be an unfair practice must be prohibited. Here, since contract did not contain “non-discrimination” clause, Board agent properly refused to defer charge alleging discrimination. more or view all topics or full text. |
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| 1562S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Union argued that state’s unilateral implementation of a new policy pending arbitration over whether the policy was negotiable constituted a separate and distinct unfair practice that was not deferrable. Board rejected union’s argument on the grounds that the state’s unilateral implementation would only constitute an unfair practice if it was negotiable, which was precisely the issue deferred to arbitration. Accordingly, entire charge was deferrable. more or view all topics or full text. |
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| 1584H |
Trustees of the California State University (San Marcos)
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral required only where CBA prohibits conduct at issue. It is not enough to cover or discuss the disputed conduct; p. 9. more or view all topics or full text. |
28 | 61 | 01/13/04 |
| 1501E |
Los Angeles Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral inappropriate because conduct is not even arguably prohibited by contract. After a proposed decision and appeal to the Board, deferral would not likely be in the best interests of the parties or effective administration of EERA. more or view all topics or full text. |
27 | 4 | 10/31/02 |
| 1462E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Allegation that employer terminated employment subject to deferral because termination is arguably prohibited by the applicable collective bargaining agreement. more or view all topics or full text. |
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| 1420S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Alleged illegal reprisal of State's direction to Union to not release information to individual employee covered by the grievance machinery of the parties' collective bargaining agreement and allegations must be deferred to contractual grievance procedure. more or view all topics or full text. |
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| 1393E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under Lake Elsinore School District (1987) PERB Decision No. 646, PERB lacks jurisdiction over allegations in unfair practice charges covered by the grievance machinery of the parties' collective bargaining agreement and allegations must be deferred to contractual grievance procedure. Where parties' collective bargaining agreement contains a no-discrimination clause which states that "The employer agrees to comply with all applicable federal and state laws...[and], the District agrees that there shall be no discrimination, interference, restraints or coercion by the District or any of its agents against any of its employees because of membership in the union or exercise of rights to engage in union activity" the Lake Elsinore standard is met, both for allegations related to charging parties' participation in union activity and for allegations related to charging parties' individual complaints about employment matters. Futility is not established by speculation about how the union may treat the charging party's grievances. This is true even where there was a rift between charging parties and the union over the employer's subcontracting decision effecting the charging parties. more or view all topics or full text. |
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| 1527S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Union failed to present evidence of enmity by employer which would warrant refusal by Board to defer charge to arbitration. more or view all topics or full text. |
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| 1517H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Arbitration is available where the contract has expired if disputes involve events that occurred before expiration or involve post-expiration conduct that infringes on rights accrued or vested under the agreement not that this case held. more or view all topics or full text. |
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| 1376E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
A charge will be dismissed and deferred to arbitration if the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration, and the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties. EERA does not require exhaustion of the grievance procedure when resort to that procedure would be futile. Futility may be found when the arbitration process itself is at issue or when the association is unwilling to take the grievance to arbitration. However, mere animosity between the grievant and the union is insufficient; the grievant must demonstrate the union's unwillingness to pursue the matter. Here, charging party had not asked the union to file a grievance, nor filed her own grievance and asked the union for help. Charging party argues that the union ignored her regarding previous issues. These facts do not support a finding of futility. Board decisions indicated that the Association had helped the Charging Party in the past. The charge does not establish that the Association committed itself to a position in conflict with the Charging Party's interests. more or view all topics or full text. |
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| 1461E |
Sacramento City Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
A charge must be dismissed and deferred if: (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties; p. 9, warning letter. more or view all topics or full text. |
25 | 32111 | 09/18/01 |
| 1473S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
EERA section 3541.5 essentially codified the NLRB’s deferral policy as articulated in Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]. EERA section 3541.5 mandates a return in part to the Board’s pre-arbitration deferral policy contained in Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a. EERA section 3541.5 read in its entirety contemplates a charging party having a forum either in an arbitration or in a hearing before PERB. EERA section 3541.5(a)(2) prevents PERB from issuing a complaint against conduct also prohibited by the provisions of an agreement until the grievance machinery is exhausted either by settlement or arbitration. If a decision is not reached on the merits, it is not an arbitration of the dispute and the bar on issuing a complaint is not present. Deferring to a contractual grievance procedure where the employer can assert a procedural defense of untimeliness as justification for refusing to participate in an arbitration on the merits of the dispute renders the grievance procedure futile. Nothing in EERA or the Dills Act evidences the Legislature’s intent to shorten PERB’s statute of limitations for alleged violations from the statutory six months contained in each act to the time limits contained in the parties’ collective bargaining agreement grievance machinery. more or view all topics or full text. |
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| 1310E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the amount of the fee by filing an unfair practice charge must first exhaust the exclusive representative’s agency fee appeal procedure unless the procedure is insufficient on its face; warning letter. Where there was no evidence of exhaustion, the charge is dismissed; participation in the arbitration must be in the year that is under challenge in the unfair; warning letter. more or view all topics or full text. |
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| 1311E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the amount of the fee by filing an unfair practice charge must first exhaust the exclusive representative’s agency fee appeal procedure unless the procedure is insufficient on its face; warning letter. Where there was no evidence of exhaustion, the charge is dismissed; warning letter. more or view all topics or full text. |
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| 1312E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the amount of the fee by filing an unfair practice charge must first exhaust the exclusive representative’s agency fee appeal procedure unless the procedure is insufficient on its face; failure to comply with this requirement mandates dismissal of the charge. Airline Pilots is distinguished; pp. 4-5, warning letter. more or view all topics or full text. |
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| 1309E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the amount of the fee by filing an unfair practice charge must first exhaust the exclusive representative’s agency fee appeal procedure unless the procedure is insufficient on its face; p. 3, warning letter. Where there was no evidence of exhaustion, the charge is dismissed; p. 3, warning letter. more or view all topics or full text. |
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| I016E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board denied request for injunctive relief where there was a question as to whether the Board must defer to the parties' contractual dispute resolution procedure; pp. 4-5. more or view all topics or full text. |
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| A262E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The positions taken by the parties at various stages of grievance or a case are not dispositive of PERB's authority to determine whether a charge must be dismissed and deferred to arbitration. In making this determination, PERB must review the contract terms in accordance with the jurisdictional rule in Lake Elsinore School District (1987) PERB Decision No. 646; p. 6. The district's assertion that the provision in the CBA arguably permits the complained of conduct does not satisfy the element of PERB's jurisdictional rule requiring that the CBA arguably prohibit the conduct; p. 7. PERB's jurisdiction is specifically described in the EERA. Thus, PERB's role in resolving questions of arbitrability is derived directly from California law; p. 8. The specific statutory limits on PERB's jurisdiction make it essential directly from California law; p. 8. The specific statutory limits on PERB's jurisdiction make it essential revise its jurisdictional standard in consideration of a particular federal court decision on arbitrability which is not based on specific California law governing this issue; p. 9. more or view all topics or full text. |
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| A263E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
In determining whether deferral is appropriate, the policy considerations for PERB and a court faced with a request to compel arbitration are different. When PERB considers whether a charge must be deferred to arbitration, it determines which forum, PERB or an arbitrator, has jurisdiction over the dispute. The Board is guided in this determination by specific statutory criteria which governs PERB's jurisdictional authority; p. 4. The positions taken by the parties at various stages of a case are not dispositive of PERB's authority to determine whether a charge must be dismissed and deferred to arbitration. Rather, the Board independently reviews the provisions of the parties' CBA to determine whether the complained of conduct is arguably prohibited; p. 5. It is not sufficient for the CBA to merely cover or discuss the matter, the conduct alleged to be an unfair practice must be It is not sufficient for the CBA to merely cover or discuss the matter, the conduct alleged to be an unfair practice must be more or view all topics or full text. |
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| A255E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
A charge may be dismissed and deferred only if the conduct alleged to be an unfair practice is arguably prohibited by the collective bargaining agreement; p. 6. The positions taken by the parties at various stages of a case are not dispositive of PERB's authority to determine whether a charge must be dismissed and deferred to arbitration. In making this determination, the Board must review the contract terms and decide whether the complained of conduct is arguably prohibited by them; p. 7. more or view all topics or full text. |
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| A255Ea |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Broad passing references to the EERA and/or other general statutory references are not sufficient to lead the Board to conclude that the parties agreed to incorporate those laws into the CBA for purposes of subjecting them to the contract's grievance and arbitration procedures and removing them from PERB's jurisdiction; p. 3. more or view all topics or full text. |
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| A260S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB Regulation 32646(b) provides that a party wishing to appeal an ALJ's denial of a motion to dismiss based on deferral to arbitration may appeal to the Board under PERB Regulation 32635. That regulation provides that such appeal must be filed within 20 days of the date of the denial of the dismissal. Party's appeal was well outside the 20-day limit; p. 4. more or view all topics or full text. |
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| A248Ea |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
In determining whether deferral to arbitration is appropriate, the Board determines whether the contract covers the alleged unfair practice, a party's opinion about the legality of the act is not admissible evidence. more or view all topics or full text. |
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| A248E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
An unfair practice case will not be deferred merely because the contract makes reference to "EERA" or includes the phrase "subject to the provisions of law;" p. 5. The Board will defer a case only where it is clear that the parties intended that the contract prohibit the alleged violative conduct; pp. 6-7. more or view all topics or full text. |
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| A240E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charge must be dismissed and deferred to binding arbitration when (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties; p. 3, ALJ ruling. The Board refused to defer to arbitraiton as the CBA does not grant authority to Association to file grievance in its own name and the arbitrator would not have authority to hear the grievance citing Inglewood Unified School District (1991) PERB Order No. Ad-222; p. 5, ALJ ruling. more or view all topics or full text. |
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| A229E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB's authority is limited to a jurisdictional review of the language of the contract, and not to the merits of the unfair practice charge. If the conduct appears to be arguably prohibited by the contract, PERB is denied jurisdiction; p. 5. PERB's jurisdiction to determine whether to dismiss a matter on grounds of deferral, and the arbitrator's jurisdiction to determine arbitrability are separate and distinct issues. PERB does not abdicate its authority when it determines deferral is appropriate; p. 5. California has a strong policy in favor or arbitration; p. 4. Doubts should be resolved in favor of coverage. more or view all topics or full text. |
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| A222E |
Inglewood Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board refuses to defer to arbitration where subject matter is covered by grievance machinery of CBA, but CBA does not grant authority to Association to file grievance in its own name, because arbitrator would not have authority to hear grievance, and PERB is sole forum. Motion to dismiss on the grounds of deferral to arbitration is properly before the Board on appeal of an ALJ's denial of a motion to dismiss at the pre-hearing stage under PERB Regulation 32646. Motion to dismiss on grounds of pre-arbitration deferral denied. Although subject matter at issue is subject to final and binding grievance procedures, the parties' agreement limits the Association's right to file a grievance in its own name to four articles, none of which are at issue. Because an arbitrator's authority is derived from the parties' Agreement, an arbitrator would be unable to hear this matter, and PERB is the sole forum. It would not follow EERA's the parties' Agreement, an arbitrator would be unable to hear this matter, and PERB is the sole forum. It would not follow EERA's more or view all topics or full text. |
15 | 22110 | 06/24/91 |
| A189E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral to arbitration inappropriate because contract does not arguably prohibit or protect the conduct at issue; pp. 4-5. more or view all topics or full text. |
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| A190E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Grievance machinery does not cover the matter at issue where contract does not provide exclusive representative the right to file a grievance on its own behalf and employee's grievance does not raise same issue as unfair practice charge; pp. 6-8. more or view all topics or full text. |
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| A193E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
No deferral where allegation of refusal to participate in good faith in the impasse procedures is not covered by the contract provision requiring the District to meet and negotiate in good faith with the Association; pp. 2, 7. more or view all topics or full text. |
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| A145S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Futility so as to preclude deferral to arbitration does not exist simply because the charging party has had disputes with union officers. Futility exists where the union officers previously have committed themselves to a position so adverse to the grievant as to be in conflict of interest. This includes such conduct as advocacy of the grievant's termination by the employer. more or view all topics or full text. |
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| A139H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
No deferral required to the University of California's internal staff arbitration procedures. The procedure was established by the University and is not the product of a collectively negotiated agreement. Deferral to an involuntary arbitration arrangement is contrary to public policy. more or view all topics or full text. |
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| A125E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Burden of demonstrating that deferral is appropriate is that of the party asserting it. Employer motion to defer case to arbitration properly was denied when the employer failed to reply to ALJ's request to demonstrate that the agreement between the parties provided for binding arbitration, that the issues raised by the unfair practice charge are covered by the agreement and that the issues raised by the charge will be heard by an arbitrator on the merits. more or view all topics or full text. |
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| 1324E |
Oakland Unified School District (Kennis)
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
No futility to processing grievance was demonstrated by charging party's belief that the union would not have pursued the case to arbitration; p. 3, dismissal letter. No futility was demonstrated by charging party's lack of awareness of the requirement to pursue a grievance based on the non-discrimination language in the contract; p. 3, dismissal letter. more or view all topics or full text. |
23 | 30095 | 04/09/99 |
| 1303E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The employer had no duty to arbitrate the grievance as the employer's actions occurred after the expiration of the contract, the conduct did not infringe on vested rights under the agreement and the agreement had no separate authority that under normal principals of contract interpretation, require the continuation of the contract provision, citing State of California, Department of Youth Authority PERB Decision No. 962; p. 4, dismissal letter; p. 6, warning letter. more or view all topics or full text. |
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| 1287E |
Antelope Valley Union High School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral to arbitration is inappropriate where CBA grants standing to grieve only for violations of rights specifically granted to the union by an "express provision of this agreement" and case does not involve such rights; p. 13, proposed dec. Arbitration clause did not survive the expiration of the CBA since case was not dispute that: (1) involved facts and occurrences that arose before the expiration; (2) involved post-expiration conduct that infringed on rights accrued or vested under the agreement; or (3) under normal principles of contract interpretation, would survive expiration of the agreement; p. 13, proposed dec. more or view all topics or full text. |
22 | 29168 | 09/25/98 |
| 1262E |
Bakersfield City School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under PERB precedent, deferral is appropriate when: (1) the parties' contractual grievance procedure covers the matter at issue and culminates in binding arbitration; and (2) The conduct complained of in the unfair practice charge is prohibted by the parties' agreement. The Board finds that no provision of the collective bargaining agreement between the parties arguably prohibits the conduct alleged in the charge and complaint. Accordingly, the Board finds deferral inappropriate in this case; p. 3. more or view all topics or full text. |
22 | 29089 | 04/28/98 |
| 1250E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where CBA contains a grievance and arbitration procedure ending in binding arbitration and where the CBA arguably prohibits the District from discriminating against unit members, the Board dismissed and deferred the charge to the CBA's grievance procedure; p. 3, warning letter. more or view all topics or full text. |
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| 1232E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where MOU contained grievance procedure ending in binding arbitration and arguably prohibited District from unilaterally implementing new policy regarding use of facsimile machines, Board deferred unilateral change allegation to arbitration; pp. 4-5, dismissal letter. more or view all topics or full text. |
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| 1232Ea |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where a negotiated grievance procedure ending in binding arbitration covers conduct alleged in the charge, the Board will defer to arbitration every possible violation stemming from that conduct; p. 6. more or view all topics or full text. |
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| 1191E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board lacks jurisdiction over charge where grievance machinery of collective bargaining agreement covers the matter at issue and culminates in binding arbitration; p. 4, warning letter. more or view all topics or full text. |
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| 1145S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Transfer of work allegation properly deferred to an entire agreement clause which requires notice to exclusive representative and bargaining over the impact of changes made. more or view all topics or full text. |
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| 1136S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under Lake Elsinore School District (1987) PERB Decision No. 646, direct dealing allegation must be deferred to arbitration because the allegations are covered by the grievance machinery of the parties' collective bargaining agreement; p. 4. more or view all topics or full text. |
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| 1125S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Discrimination allegation filed by employee will not be deferred to arbitration, based on futility, where employee exhausted grievance procedure and exclusive representative refused to arbitrate the grievance. more or view all topics or full text. |
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| 1122S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly deferred despite the fact deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. * * *
PERB held that section 3541.5(a) of EERA established a jurisdictional rule requiring that a charge be dismissed and deferred if: (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and, (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties; p. 4, warning letter. Charging party's failure to file a grievance under Unit 11 MOU based on misbelief of improper Unit assignment and speculative belief that the Union would not be supportive of charging party's grievance does not constitute exhaustion of the grievance procedure; p. 2, warning letter. Speculation is not evidence that resort to the grievance procedure would be futile, nor would mere "disagreement or personal preference [be sufficient to] by pass the statutory deferral requirement" (State would be futile, nor would mere "disagreement or personal preference [be sufficient to] by pass the statutory deferral requirement" (State Developmental Services (1985) PERB Order No. Ad-145-S); p. 4, warning letter. A charging party's "failure to exercise the grievance process," even if that precludes further pursuit of the grievance process and arbitration, "does not create futility" (Desert Sands Unified School District (1995) PERB Decision No. 1102); p. 2, dismissal letter. more or view all topics or full text. |
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| 1115E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under Lake Elsinore School District (1987) PERB Decision No. 646 deferral is appropriate even where employee had a grievance filed and later alleged that the union failed to file a timely grievance; p. 3. more or view all topics or full text. |
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| 1106E |
Moreno Valley Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Pre-arbitration deferral is inappropriate because union did not have a right to grieve the alleged violation; p. 3, fn. 2, proposed dec. more or view all topics or full text. |
19 | 26099 | 05/19/95 |
| 1100S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, p. 18, because relied on notion that deferral was jurisdictional rather than discretionary and applied standards that are now superseded. * * *
Dills Act section 3514.5(a) does not permit a determination of PERB jurisdiction based on the sections of the statute alleged to have been violated. It requires that the determination of PERB jurisdiction be based on the conduct which is the basis of the dispute; Deferral to an alternative jurisdiction must be consistent with the fundamental rule that alternative jurisdiction has authority to order an appropriate remedy; p. 14. The public policy considerations on which PERB's dispute resolution jurisdiction is based, ensures that: 1) parties have right to one neutral administrative forum for resolution of dispute; 2) parties have right to chose a grievance and arbitration process rather than PERB and PERB should defer to that choice; and 3) deferral will eliminate overlapping and duplicative proceedings, lead to more timely resolution of disputes, and contribute to employer-employee relations eliminate overlapping and duplicative proceedings, lead to more timely resolution of disputes, and contribute to employer-employee relations more or view all topics or full text. |
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| 1102E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charging party's failure to file a grievance within contractual time limit did not constitute exhaustion of grievance procedure and PERB lacks jurisdiction over that allegation (Eureka City School District (1988) PERB Decision No. 702); p. 3. Charging party's failure to exercise grievance process in accord with terms and conditions it agreed to may preclude further pursuit of the grievance process, including arbitration, but that does not create futility; p. 6. more or view all topics or full text. |
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| 1096S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB held that section 3541.5(a) of EERA established a jurisdictional rule requiring that a charge be dismissed and deferred if: (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and, (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties; p. 2, dismissal letter. more or view all topics or full text. |
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| 1092E |
Marin Community College District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Conduct complained of by the union was not arguably prohibited by the language of the agreement between the parties and therefore deferral was not proper; p. 5. more or view all topics or full text. |
19 | 26070 | 03/21/95 |
| 1089E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral to arbitration does not apply to agreements between an employee and an employee organization. more or view all topics or full text. |
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| 1058H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board loses jurisdiction under deferral to arbitration only if arbitration is final and binding. more or view all topics or full text. |
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| 1047E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED ON OTHER GROUNDS BY Pittsburg Unified School District (2022) PERB Decision No. 2833-E. * * *
Deferral is inappropriate where the parties' agreement does not arguably prohibit the conduct complained of in this case; the union does not have standing to file a grievance in its own name; and the grievance procedure does not culminate in binding arbitration; p. 18, fn. 6. more or view all topics or full text. |
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| 1049S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
An alleged violation of Weingarten rights as interference under 3519(a) is deferrable under no interference language in the contract. more or view all topics or full text. |
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| 1026S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims. * * *
As no MOU was in effect for Unit 12 members, no duty to arbitrate a retaliation claim; p. 3; p. 10, proposed dec. Articles of the MOU covered the allegations raised by unfair practice complaint and therefore the 3519(a) allegation concerning Unit 13 must be dismissed and deferred to binding arbitration; p. 11, proposed dec. Where the contract prohibits retaliation and interference against employees, but does not also contain language barring the State from denying employee organizations their rights under the Dills Act, the section 3519(b) violation should not be deferred; p. 3; p. 11, proposed dec. more or view all topics or full text. |
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| 0901E |
San Diego Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board agent had no jurisdiction to issue complaint as the allegation that the class room size exceeded what was permitted in the CBA was deferable under Lake Elsinore School District (1987) PERB Decision No. 646; p. 3, warning letter. Futility not demonstrated if no supporting factual allegations; p. 1, dismissal letter. more or view all topics or full text. |
15 | 22153 | 09/19/91 |
| 0890H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
No futility just because employer could dismiss employee without cause. more or view all topics or full text. |
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| 0880E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED ON OTHER GROUNDS by Yuba City Unified School District (1995) PERB Decision No. 1095. * * *
Deferral to arbitration not appropriate where contract does not provide the association with a remedy for the alleged violation of its own rights. more or view all topics or full text. |
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| 0860E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board affirmed ALJ refusal to defer matter to arbitration on ground that relevant collective bargaining agreement provision did not "arguably prohibit" conduct at issue, and therefore, Lake Elsinore test not met; pp. 2-4. (Appeal pending.) more or view all topics or full text. |
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| 0853H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
A factual allegation timely raised in an amended charge in support of a claim of discrimination/retaliation is deferable to arbitration under the binding arbitration provision of the collective bargaining agreement where the contract has a provision that prohibits the employer from taking reprisals against an employee for participation in union activities; p. 6. more or view all topics or full text. |
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| 0854E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
As association's strike conduct or its duty to bargain in good faith are not covered by the contract, Board refused to defer complaint alleging that association's strike conduct violated its duty to bargain in good faith; p. 9. As provisions of contract involved the rights of individual employees, Board refused to defer complaint involving association's conduct; p. 9 The fact that related issues in an arbitration were deferred by a regional attorney when filed as allegations in an unfair practice charge does not mean that the allegations in the present unfair practice must also be deferred; p. 8. more or view all topics or full text. |
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| 0821E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
In determining whether deferral is appropriate, the Board must first decide whether conduct underlying charge is arguably prohibited by the parties' collective bargaining agreement, and then whether the agreement provides for resolution of the dispute by final and binding arbitration. As Association arguably has a right to file a grievance in its own name, Board will defer charge to binding arbitration. more or view all topics or full text. |
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| 0817E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charge alleging that employer unilaterally determined to terminate health insurance agreed upon in expired collective bargaining agreement was properly deferred to arbitration where dispute arguably arose out of the expired agreement; warning letter. more or view all topics or full text. |
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| 0803E |
Los Angeles Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where issue of duties being required is urged as a contract interpretation, the matter will not be deferred where the employer cannot file grievances under the contract; p. 9, proposed dec. more or view all topics or full text. |
14 | 21082 | 03/30/90 |
| 0779E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Discrimination charge will be deferred despite union's assertion that the alleged conduct also violated contractual promotion and classification articles which the union has no right to grieve. Union failed to allege any facts showing that the alleged contract breaches would also constitute a failure to negotiate in good faith under Grant. more or view all topics or full text. |
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| 0782E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Discrimination/retaliation charge will be deferred despite union's assertion that it is precluded from filing a grievance itself. ALJ's interpretation of contract to permit union to file grievance in own name is not reasonable. more or view all topics or full text. |
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| 0784E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Since the overtime compensation practice was based on a long standing practice and not specifically covered by the collective bargaining agreement, CSEA was not required to exhaust the grievance machinery. more or view all topics or full text. |
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| 0761E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charge alleging discrimination dismissed where issue covered by contractual clause stating employer would comply with state laws, and where such alleged contractual violations were subject to binding arbitration; p. 3, warning letter. more or view all topics or full text. |
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| 0747E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferral is a nonwaivable jurisdictional defense which can be raised at any stage of a proceeding and the Board will defer the matter if the dispute is properly a subject for grievance/arbitration and the contract provides for binding arbitration; pp. 2-4. more or view all topics or full text. |
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| 0749S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where allegations in an unfair practice charge are clearly excluded from the grievance process PERB will not defer that portion of the case. However, the fact that the agreement provides an option to choose grievance procedures or PERB does not confer jurisdiction on PERB where the allegations are also covered by the agreement's arbitration procedures; pp. 6-8. more or view all topics or full text. |
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| 0737E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where the grievance procedure permits steps of the grievance to be dispensed with, the futility argument is not available and the charge will be deferred to arbitration if the conduct complained of is also prohibited by the contract; pp. 3-4, regional attorney letter. more or view all topics or full text. |
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| 0734S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims. * * *
Where an employer threatened the employee organization by referring to withdrawal of employment contracts, a prima facie case is stated and will not be deferred where the employee organization does not have contractual right to arbitrate the matter; p. 2. more or view all topics or full text. |
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| 0702E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Pursuant to Lake Elsinore School District (1987) PERB Decision No. 646, Board has no jurisdiction to issue a complaint until or unless the grievance process is exhausted or futility is demonstrated, irrespective of respondent's willingness to waive procedural defenses. more or view all topics or full text. |
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| 0646E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
* * * OVERRULED IN PART by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S, where the Board held that pre-arbitration deferral is discretionary, not jurisdictional. * * *
Where the Board lacks jurisdiction under EERA section 3541.5, it must dismiss the matter on own motion, regardless of whether jurisdictional issue was raised by parties or whether parties acquiesced or stipulated that PERB has jurisdiction. Lack of jurisdiction cannot be overcome by established practices or customs of the Board, nor by Board regulation. Pre-arbitration deferral under EERA is not an affirmative defense subject to a party's waiver. more or view all topics or full text. |
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| 0594E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
No deferral because contract did not "cover the matter at issue"; the arbitration procedure only covered express terms of the contract. more or view all topics or full text. |
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| 0600S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Deferrral appropriate where issue can be resolved through contractual grievance machinery; delays in arbitration machinery insufficient to raise "futility" issue. more or view all topics or full text. |
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| 0587E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Matter deferred to arbitration where alleged contract violation; failure to allege sufficient facts to avoid Collyer standard; to extent relies on Collyer, overruled by Lake Elsinore No. 646. more or view all topics or full text. |
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| 0561S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Motion to dismiss properly granted where subject matter covered by grievance and arbitration procedures; no futility where union agrees that it would represent grievant through grievance procedure. more or view all topics or full text. |
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| 1728E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
The standards for deferral to arbitration are met in this case. There is no evidence that the parties are not operating within a stable collective bargaining relationship. The District indicated its willingness to proceed to arbitration. The issues raised in the grievance are the same as the allegations in the unfair practice charge in that both the grievance and the charge allege that the District wrongly paid Ybarra-Grosfeld her summer pay and overpaid her substitute teacher at her expense. The grievance was submitted to Level 5 arbitration and the parties recently selected an arbitrator. more or view all topics or full text. |
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| 1213S |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Under Lake Elsinore School District (1987) PERB Decision No. 646, PERB lacks jurisdiction over allegations in unfair practice charges covered by the grievance machinery of the parties' collective bargaining agreement and allegations must be deferred to contractual grievance procedure; p. 9. Where employer wrote letter to exclusive representative on April 10, 1995, expressly stating that employer intended to implement new policy effective April 14, 1995, unilateral change is found to have occurred on April 10, 1995; pp. 9-10. more or view all topics or full text. |
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| 1214E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
PERB lacks jurisdiction over retaliation claims because the grievance machinery of the agreement covers the dispute raised by the unfair practice charge and culminates in binding arbitration; p. 4, dismissal letter. more or view all topics or full text. |
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| 0472E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Remand to regional office to determine whether deferral appropriate based on consideration of positions of all parties; pp. 1-2. more or view all topics or full text. |
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| 0392H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charge of bad-faith participation in the grievance procedure is not deferrable. There is no specific contract language addressing the specific conduct in question. In addition, deferral should not be granted when the integrity of the arbitration process itself is at issue. more or view all topics or full text. |
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| 0358E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Case was decided on Collyer and was overruled in Lake Elsinore, PERB No. 646. more or view all topics or full text. |
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| 0199E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Board will not defer to any process which might result in settlement, pre-arbitration deferral is appropriate only where the negotiated procedure culminates in binding arbitration. more or view all topics or full text. |
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| 0204E |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where there is no language in the contract which will resolve the underlying dispute, deferral to grievance machinery is inappropriate. The aggrieved conduct must be "prohibited by the provisions of the agreement" and the arbitration clause must "cover the matter at issue;" pp. 6-11. Dissent would defer on the sole basis that the Respondent's defense is contractual - "the party seeking [deferral] is making a claim which is governed by the contract;" p. 14. more or view all topics or full text. |
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| 0188E |
John Swett Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Where upc contains matter which is partly covered by contract (discrimination against employee because of exercise of EERA rights) and partly not covered (deprivation to union of its EERA rights), PERB will not order bifurcation and require duplicative and overlapping proceedings through both the arbitration and unfair practice routes. No deferral ordered; pp. 4-5. more or view all topics or full text. |
6 | 13018 | 12/21/81 |
| 0986H |
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Charging party alleged that CSU would not proceed to arbitration and that futility existed. Board found that charging party's remedy is to proceed directly to court to seek enforcement of the parties arbitration agreement. (HEERA section 3589(b)); p. 2. The rationale at Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a is still applicable to cases arising under HEERA; standards set forth in Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent cases state that deferral is appropriate in prearbitral situations when: (1) dispute arises within a stable collective bargaining relationship; (2) respondent waives contract-based procedural defense; and (3) contract and its meaning must be at the center of the dispute; pp. 2-3, warning letter. more or view all topics or full text. |
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| 0143E |
Stockton Unified School District
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Portion of complaint dealing with unilateral implementation of checklist for evaluations is dismissed because contract with binding arbitration has applicable provision. more or view all topics or full text. |
4 | 11189 | 11/03/80 |