CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

Single Topic for Decision 1393E

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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.