CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

Single Topic for Decision 2357E

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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.