CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration
Single Topic for Decision 1122S
Full Decision Text (click on the link to view): Full Text
1102.01000 – 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. 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.