CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Post Arbitration; Repugnancy
Single Topic for Decision 1446H
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1102.02000 – Post Arbitration; Repugnancy
In light of the fact that the arbitrator kept the fair share hearing open while he waited for the exclusive representative to comply with his request for documents regarding jurisdiction, the award complied with the 30-day requirement of PERB Regulation 32994(b)(8); pp. 2-3, warning letter. When the agency fee arbitration has already concluded, PERB will defer to an arbitrator's award and refuse to issue a complaint in which: (1) the arbitration proceedings were fair and regular; and (2) the arbitrator's award is not clearly repugnant to the purposes of the Act; p. 3, warning letter. The charge demonstrated that the arbitration proceeding violated several AAA rules. Although failure to comply with the AAA rules is a serious matter, the rule violations involved a jurisdictional issue tangential to the issues raised by the charging party. The charging party raised objections regarding whether the respondent's expenses were chargeable or non-chargeable, not whether the respondent's notice adequately informed him of the possibility of other forums. As such, the proceedings appear to have been fair and regular as they pertained to the charging party's objections, except as to whether the award was issued in a timely manner; p. 3, dismissal letter. The failure of the arbitrator to issue the award in a timely manner was insufficient to demonstrate the proceedings were conducted in an irregular and unfair manner; p. 3, dismissal letter. Charging party alleged the arbitrator's award was repugnant to the Act because a comparison of the respondent's financial statements and the respondent's IRS forms revealed different figures, and that the respondent used different accounting methods to calculate these figures. However, the charge failed to demonstrate that such a comparison rendered the decision clearly repugnant to the Act. The award analyzed the respondent's system for identifying chargeable and non-chargeable expenses and concluded the system was fair and reasonable. Even in a case where PERB may have reached different conclusions than the arbitrator, that alone does not demonstrate the award is repugnant to the Act; p. 4, dismissal letter.