PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

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The Board initially adopted NLRB deferral tests. (See, e.g., Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, pp. 4-5.) Doing so was appropriate given the similarities between the laws PERB administers and federal law governing private sector labor relations. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12.) However, private sector precedent is at most persuasive. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of Santa Clara (2021) PERB Order No. Ad-485, p. 8, fn. 7.) Even when PERB precedent expressly borrows wording and/or principles from private sector precedent, that “does not mean we necessarily follow subsequent developments in NLRB precedent.” (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 9, fn. 6; El Camino Healthcare District, et al. (2023) PERB Decision No. 2868-M, p. 26, fn. 18; Napa Valley Community College District (2018) PERB Decision No. 2563, p. 13.) As PERB has shifted how it interprets multiple elements of the pre-arbitration and post-arbitration deferral tests over time, such shifts have not necessarily matched the NLRB’s shifts. (pp. 7-8.)