CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

Single Topic for Decision 1473S

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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.