CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

Single Topic for Decision 2803E

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In County of Santa Clara (2021) PERB Order No. Ad-485-M, PERB explained how the deferral test applies if an unfair practice charge contains multiple claims. Three principles are paramount. First, if a claim is purely derivative—meaning that a charging party cannot establish it without also establishing another claim—then PERB defers the derivative claim if and only if the claim it derives from satisfies the deferral test. (Id. at pp. 9-10.) Second, if multiple claims can be established independently of one another but they are factually or legally interrelated, then PERB does not defer any of them unless each claim meets the deferral test. (Id. at pp. 10-12.) This rule serves to prevent unnecessary piecemeal litigation. (Ibid.) Finally, if multiple independent claims are neither factually nor legally interrelated, then PERB applies the deferral test separately to each claim and may defer any of them depending on how the test applies to each respective claim. (Ibid.) Thus, a charging party cannot avoid deferral of one claim by choosing to include in the same charge an unrelated, non-deferrable claim.