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1102.01000 – Pre-Arbitration

The most critical prong of the deferral test is often whether the contract and its meaning “lie at the center of the dispute.” To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) “[I]t is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid.; Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.) Second, resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (Santa Clara, supra, PERB Order No. Ad-485-M, p. 8.) This condition may be met if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue. (Id. at p. 8, fn. 6.) If resolution of the alleged unfair practice requires application of statutory legal standards, and “there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles,” deferral is not appropriate. (Id. at p. 8.) The District did not carry its burden of establishing that deferral is appropriate where the parties’ CBAs contravene the neutral contractual interpretation standards PERB applies in a unilateral change case (see Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 25-26 [deferral inappropriate both because contract limited arbitrator from providing full make-whole remedy and because contract limited arbitrator from fully considering the issues at stake] and limit the arbitrator to only the interpretation or application of a contract term, which would not resolve the issues arising from the District’s failure to bargain the effects of its decisions. (See Pleasanton Joint School District (1986) PERB Decision No. 594, pp. 2-6 [deferral inappropriate where contract limited arbitrator to finding violation of “express terms,” thereby preventing arbitrator from considering full breadth of issues at stake in unilateral change case].)